Page:Daniel Schrock v. Learning Curve International, Inc. 7th Cir. 08-1296.djvu/13

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No. 08-1296

in any other work. See 1 Nimmer on Copyright § 3.01, at 3-2, § 3.03[A], at 3-7. More particularly, Nimmer says the relevant standard is whether a derivative work contains a “nontrivial” variation from the preexisting work “sufficient to render the derivative work distinguishable from [the] prior work in any meaningful manner.” Id. § 3.03[A], at 3-10. The caselaw generally follows this formulation. See, e.g., Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 34-35 (2d Cir. 1982) (holding that numerous minor changes in an illustration of Paddington Bear were sufficiently nontrivial because they combined to give Paddington a “different, cleaner ‘look’ ”); Millworth Converting Corp. v. Slifka, 276 F.2d 443, 445 (2d Cir. 1960) (holding that embroidered reproduction of a public-domain embroidery of Peter Pan was sufficiently distinguishable because the latter gave a “three-dimensional look” to the former embroidery).

Learning Curve and HIT argue that our decision in Gracen established a more demanding standard of originality for derivative works. Gracen involved an artistic competition in which artists were invited to submit paintings of the character Dorothy from the Metro-Goldwyn-Mayer (“MGM”) movie The Wizard of Oz. Participating artists were given a still photograph of Dorothy from the film as an exemplar, and the paintings were solicited and submitted with the understanding that the best painting would be chosen for a series of collector’s plates. Gracen, 698 F.2d at 301. Plaintiff Gracen prevailed in the competition, but she refused to sign the contract allowing her painting to be used in the collector’s plates.