rule both historically and currently embraces only words or numbers. Neither party has referred us to cages which discuss the applicability of the rule to drawings.[1]
To recognize Seiler’s works as writings does not, as Seiler argues, run counter to the rule’s preoccupation with the centrality of the written word in the world of legal relations. Just as a contract objectively manifests the subjective intent of the makers, so Seiler’s drawings are objective manifestations of the creative mind. The copyright laws give legal protection to the objective manifestations of an artist’s ideas, just as the law of contract protects through its multifarious principles the meeting of minds evidenced in the contract. Comparing Seiler’s drawings with Lucas’ drawings is no different in principle than evaluating a contract and the intent behind it. Seiler’s “reconstructions” are “writings” that affect legal relations; their copyrightability attests to that.
A creative literary work, which is artwork, and a photograph whose contents are sought to be proved, as in copyright, defamation, or invasion of privacy, are both covered by the best evidence rule. See McCormick, § 232 at 706 n. 9; Advisory Committee’s Note to Rule 1002; 5 Louisell & Mueller, § 550 at 285 n. 27. We would be inconsistent to apply the rule to artwork which is literary or photographic but not to artwork of other forms. Furthermore, blueprints, engineering drawings, architectural designs may all lack words or numbers yet still be capable of copyright and susceptible to fraudulent alteration. In short, Seiler’s argument would have us restrict the definitions of Rule 1001(1) to “words” and “numbers” but ignore “or their equivalent.” We will not do so in the circumstances of this case.
Our holding is also supported by the policy served by the best evidence rule in protecting against faulty memory. Seiler’s reconstructions were made four to seven years after the alleged originals; his memory as to specifications and dimensions may have dimmed significantly. Furthermore, reconstructions made after the release of the Empire Strikes Back may be tainted, even if unintentionally, by exposure to the movie. Our holding guards against these problems.
2. Rule 1008.
As we hold that the district court correctly concluded that the best evidence rule applies to Seiler’s drawings, Seiler was required to produce his original drawings unless excused by the exceptions set forth in Rule 1004. The pertinent subsection is 1004(1), which provides:
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if—
- (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith…
In the instant case, prior to opening statement, Seiler indicated that he planned to show to the jury reconstructions of his “Garthian Striders” during the opening statement. The trial judge would not allow items to be shown to the jury until they were admitted in evidence. Seiler’s counsel reiterated that he needed to show the reconstructions to the jury during his opening statement. Hence, the court excused the jury and held a seven-day hearing on their admissibility. At the conclusion of the hearing, the trial judge found that the reconstructions were inadmissible under the best evidence rule as the originals were lost or destroyed in bad faith. This finding is amply supported by the record.
Seiler argues on appeal that regardless of Rule 1004(1), Rule 1008 requires a trial because a key issue would be whether the
- ↑ Lucas argues that Seiler’s work, involving painting and photographic processes, is photography and therefore under the explicit reach of rule 1001. But the pleadings, Lucas’ memoranda in opposition to summary judgment, and the district judge’s initial references all characterize Seiler’s work as drawings.
