incremental original expression he contributes as long as the derivative work does not infringe the underlying work. See id. § 103(a), (b); see also Pickett v. Prince, 207 F.3d 402, 405 (7th Cir. 2000); Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th Cir. 1997). The copyright in a derivative work, however, “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work.” 17 U.S.C. § 103(b).
A. Photographs as Derivative Works
Whether photographs of a copyrighted work are derivative works is the subject of deep disagreement among courts and commentators alike. See 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 3.03[C][1], at 3-20.3 (Aug. 2009). The district court held that Schrock’s photos came within the definition of derivative works because they “recast, transformed, or adapted” the three-dimensional toys into a different, two-dimensional medium. For this conclusion the judge relied in part on language in Gracen and in the Ninth Circuit’s decision in Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000), recognizing, however, that neither decision directly decided the matter. Gracen did not involve photographs at all, and although Ets-Hokin did, the Ninth Circuit ultimately sidestepped the derivative-works question and rested its decision on other grounds. Id. at 1081.
The judge also cited other decisions in this circuit that appear to support the conclusion that photographs are
