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Ets-Hokin v. Skyy Spirits

Ets-Hokin? v. Skyy Spirits

225 F.3d 1068 (9th Cir. 2000).

Facts: Ets-Hokin? is a professional photographer who was hired by the President of Skyy Spirits to photograph the company’s vodka bottle. Plaintiff shot a series of photographs and ultimately produced and delivered three photographs of the bottle to the Defendant. In all three photos, the bottle appears in front of a plain white or yellow backdrop, with black lighting. The bottle seems to be illuminated from the left such that the right side of the bottle is slightly shadowed. The photographs seem to have been taken from an angle perpendicular to the side of the bottle such that the viewer has a “straight on” perspective. In two of the photos, only the bottle is pictured while in the third photo, a martini sits next to the bottle. Under the terms of the contract signed by both parties, Plaintiff retained all rights to the photos and licensed limited rights to the Defendant. After signing the contract, Plaintiff applied to the US Copyright Office for a certificate of registration for his series of photos which was issued effective on March 10, 1995.
Once the photographs were delivered, Defendant claimed that they were unsatisfactory and hired other photographers to do the work. Plaintiff is suing for copyright infringement, fraud and negligent misrepresentation. He saw his work in various printed publications as well as on the side of a bus. Plaintiff also claims that Defendant used photographs taken by the other photographers that mimicked his own photos. Specifically, Plaintiff claimed that these photographers improperly used his photographs to produce virtually identical photos of the vodka bottle.

Procedure: The District Court granted Defendant’s motion for summary judgment on the ground that Plaintiff failed to establish the validity of his copyright.

Issue: Whether Plaintiff’s commercial photographs, dubbed “product shots,” of the Skyy Spirits vodka bottle merit copyright protection.

Holding: Yes.

Analysis: The Court of Appeals began its analysis by determining that in order to establish copyright infringement, Plaintiff must prove both valid ownership of the copyright and infringement of that copyright by the Defendant. The Court held that Plaintiff’s product shots of the vodka bottle are original works of authorship entitled to copyright protection. Photographs have historically received copyright protection as they are the result of a series of creative decisions taken by the photographer. Courts have held that “whether a photograph is used in a museum, an art gallery, a mural, a magazine, or an advertisement does not bear on its copyrightability.” Additionally, several cases have held that a photograph of an object is copyrightable.
Contemporary standards also determine that there is copyright protection for photographs. The photographs at issue meet the Feist threshold for copyrightability as they were independently created by the author and they possess at least some minimal degree of creativity. The pictures at issue are the result of Plaintiff’s work alone and the creative decisions taken by Plaintiff in producing the photographs are sufficient to render them copyrightable.



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