Gracen v. Bradford Exchange

Gracen v. Bradford Exchange
698 F.2d 300 (7th Cir. 1983)

Facts: Bradford Exchange, defendant, invited artists to submit paintings of Dorothy from the Wizard of Oz. Bradford Exchange planned to award the winner of the contest for best painting a contract for a series of collector’s plates. Gracen won the contest, but after reviewing the awarded contracts terms, refused to sign. Gracen’s painting was then subsequently used by another artist in designing the plates.

Procedural Posture: Gracen sued for copyright infringement. Claim dismissed: "a derivative work must be substantially different from the underlying work to be copyrightable." Here the plate images were nearly identical to the movie images provided for the contest.

Important Dicta: "Even if she was authorized to exhibit her derivative works, she may not have been authorized to copyright them." This was rejected as mistaken dicta in Schrock v. Learning Curve, 586 F.3d 513 (7th Cir. 2009), and it had led some judges to require photographers to mistakenly ask for permission to copyright their photos as almost occurred in the Schrock case.

Likely future importance or unanswered questions: Is there a heightened heightened standard for originality in derivative works?

Critical Analysis: Here the court reached a decision that has been difficult for judges in this circuit to apply. By deciding this case mainly on originality grounds it would appear to require a heightened standard for originality in derivative works. If a painting of a Wizard of Oz scene that never actually occurred in the movie is not original enough for copyright protection then it would be reasonable to conclude that photos would always lack the requisite originality to qualify for protection. This heightened standard conflicts with Nimmer on Copyright, which states that the standard for a derivative work is low. The court also mentioned a permission being required by the creator of the derived work, which has also been criticized as mistaken dicta.

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