Addressing for the first time whether copyright principles would apply to digital modeling, the U.S. Court of Appeals for the Tenth Circuit affirmed the ruling of the lower court that the plaintiff’s digital models lacked sufficient originality to warrant copyright protection. However, the Court left open the possibility of copyright protection for digital models displaying sufficient originality. Meshwerks v. Toyota Motor Sales, Case No. 06-4222 (10th Cir., June 17, 2008) (Gorsuch, J.).
Meshwerks sued Toyota Motor Sales (Toyota) for copyright infringement alleging that Toyota reused and redistributed, in multiple advertisements and media, digital models of Toyota vehicles created by Meshwerks. Meshwerks had given permission to Toyota for only a single use of its models—as part of one Toyota television commercial.
Toyota moved for summary judgment, asserting that Meshwerks’ digital models lacked sufficient originality to be protected by copyright—specifically, that any original expression found in Meshwerks’ models was attributable to Toyota designers who had conceived of the vehicle designs. The district court agreed and granted summary judgment to Toyota. Meshwerks appealed.
The Tenth Circuit considered the issue of whether Meshwerks, which had received copyright registrations for its digital models, held valid copyrights (giving due regard to the presumption of validity). The Court analogized the digital models to photographs, a form of expression initially met with a degree of skepticism as to whether they meet the originality requirement (i.e., independent creation coupled with at least minimal creativity) to support copyright. Adopting a principle from the landmark Supreme Court’s photography case Burrow-Giles (1884), the Court determined that a digital model may lack originality (and therefore be per se not copyrightable) or may be copyrightable but only to the extent of its original depiction of the subject. The Court introduced a two-step approach to assess originality: first, objective assessment of the models in question; and second, purpose in creating the models. The Court found that Meshwerks’ models displayed no original material, but were merely digital copies of Toyota’s handiwork. Further, Meshwerks intent in developing the models was to copy Toyota’s vehicles, rather than to create or add original expression. The Court indicated that it would have been more likely to find originality had Meshwerks made creative decisions (like an art photographer) regarding lighting, shading, angle or background, instead of depicting unadorned images of Toyota’s vehicles.
While the Court found that Meshwerks held no valid copyright in its models due to insufficient originality, it was quick to note that this new digital medium, like photography, could be employed to create “vivid new expressions fully protectible in copyright law,” thus leaving open opportunity for future digital models to fall under the protection of copyright.