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Neil Gorsuch on Copyright

President Trump has nominated Judge Neil Gorsuch to be a justice on the US Supreme Court. Some copyright bloggers and citizens are interested in how this judge has ruled on copyright in the past. One case  to examine is Meshwerks v. Toyota, a 2008 case heard in the US Court of Appeals for the 10th Circuit.

Meshwerks is a company that makes digital models of large objects, such as cars. Toyota makes cars. Toyota advertises those cars. Toyota, through a variety of contractors and subcontractors–a thicket that is not worth untangling at this point– paid for Meshwerks to create digital models of Toyotas. Meshwerks claims that Toyota had contracted for use of the models only in one television commercial. Toyota instead used the models for a television commercial in addition to website advertisements and a “host of media.”  for use to advertise on Toyota’s website.

Meshwerks therefore sued Toyota for copyright infringement, claiming that had negotiated only to use the models for one television commercial and not for any other use.

Toyota’s defense? Meshwerks has no copyright in the digital models, therefore has no grounds to sue for copyright infringement. Toyota pointed out that in order for a creator to have copyright protection, the creation must have some degree of originality. Quoting from the opinion:

Originality, thus, is said to be “[t]he sine qua non of copyright.” Feist, 499 U.S. at 345.That is, not every work of authorship, let alone every aspect of every work of authorship, is protectable in copyright; only original expressions are protected.

This constitutional and statutory principle seeks to strike a delicate balance – rewarding (and thus encouraging) those who contribute something new to society, while also allowing (and thus stimulating) others to build upon, add to, and develop those creations. The copyright power is said to exist primarily “not to reward the labor of authors, but to promote the progress of science and the useful arts. . . . To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” Id. at 349-50 (internal quotation and citations omitted).

How do you think the court defines “originality?” How does that definition match with yours?


What exactly does it mean for a work to qualify as “original”? In Feist, the Supreme Court clarified that the work must be “independently created by the author (as opposed to copied from other works).” Id. at 345; see also Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) (the work for 5 The two pertinent concepts – independent creation and minimal creativity – are intertwined and overlap, at least to some degree: After all, if something qualifies as an independent creation (that is, it is more than a copy) won’t it also usually betray some minimal degree of creativity? Still, though the independent test imputed by the creativity requirement is low, it does exist. Feist, 499 U.S. at 345, 362.

It is thus not the case, as some interpreted Judge Learned Hand to say when he observed that “‘no photograph, however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike,’” that photographs (or any other works, for that matter) are per se protectable. See SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 309 (S.D.N.Y. 2000) (quoting Jewelers’ Circular Publ’g Co. v. Key-Stone Publ’g Co., 274 F. 932, 934 (S.D.N.Y. 1921) (Hand, J.)). -9- which copyright protection is sought must “owe[] its origin” to the putative copyright holder) (internal quotation omitted). In addition, the work must “possesses at least some minimal degree of creativity,” Feist, 499 U.S. at 345; see also William F. Patry, Patry on Copyright § 3:27 (“both independent creation and a minimal degree of creativity are required”), though this is not to say that to count as containing a minimal degree of creativity a work must have aesthetic merit in the minds of judges (arguably not always the most artistically discerning lot). As the Court explained through Justice Holmes, even “a very modest grade of art has in it something irreducible, which is one man’s alone. That something he may copyright . . . .” Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903); see also Feist, 499 U.S. at 345 (all that’s needed is some creative spark, “no matter how crude, humble, or obvious”).5

Having explained the doctrine of originality, Judge Gorsuch then introduces the next challenge:

While there is little authority explaining how our received principles of copyright law apply to the relatively new digital medium before us, some lessons may be discerned from how the law coped in an earlier time with a previous revolution in technology: photography.

Does the comparison between digital models  (I think) and photography strike you as a relevant one? What are the strengths and limitations of this comparison?

After explaining the facts and reasoning of important cases dealing with copyright in photography, Judge Gorsuch brings up an old friend: the idea/expression dichotomy:

Accordingly, the Court indicated, photographs are copyrightable, if only to the extent of their original depiction of the subject. Wilde’s image is not copyrightable; but to the extent a photograph reflects the photographer’s decisions regarding pose, positioning, background, lighting, shading, and the like, those elements can be said to “owe their origins” to the photographer, making the photograph copyrightable, at least to that extent. As the Court more recently explained in Feist, the operative distinction is between, on the one hand, ideas or facts in the world, items that cannot be -12- copyrighted, and a particular expression of that idea or fact, that can be. “This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship

Judge Gorsuch next applies these principles from the court’s analysis of photography to the digital models at issue in this case.

[W]e think Meshwerks’ models are not so much independent creations as (very good) copies of Toyota’s vehicles. In reaching this conclusion we rely on (1) an objective assessment of the particular models before us and (2) the parties’ purpose in creating them. All the same, we do not doubt for an instant that the  digital medium before us, like photography before it, can be employed to create vivid new expressions fully protectable in copyright.

Key to our evaluation of this case is the fact that Meshwerks’ digital wireframe computer models depict Toyota’s vehicles without any individualizing features: they are untouched by a digital paintbrush; they are not depicted in front of a palm tree, whizzing down the open road, or climbing up a mountainside. Put another way, Meshwerks’ models depict nothing more than unadorned Toyota vehicles – the car as car. See Appendix A. And the unequivocal lesson from Feist is that works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world.

As Professor Nimmer has commented in connection with the predecessor technology of photography, “[a]s applied to a photograph of a pre-existing product, that bedrock principle [of originality] means that the photographer manifestly cannot claim to have originated the matter depicted therein . . . . The upshot is that the photographer is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” Nimmer on Copyright § 3.03[C][3].

It seems to us that exactly the same holds true with the digital medium now before us: the facts in this case unambiguously show that Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to -14- pose it, or the like – in short, its models reflect none of the decisions that can make depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry, new expressions subject to copyright protection.

What do you think of this analysis, particularly this last paragraph? How does it connect to your experiences as a creator, or the experiences of your students?

Judge Gorsuch’s opinion continues, but some copyright bloggers wonder about the efficacy of posting too many more block quotes in one post. Plus, why deprive you of the fun of finding out which side won?

The whole opinion is well written and, for its genre, relatively easy to follow. It may have limited impact on whether you think Judge Gorsuch should be confirmed as a Supreme Court Justice, but it should teach you a thing or two about the evolving applications of copyright law.


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