On Nov. 5, the U.S. Court of Appeals for the Seventh Circuit issued a reversal in Schrock v. Learning Curve1 that may help resolve—or at least defuse—a long-running debate about whether certain types of photographs are derivative works. This column dealt with the issue at length in May 2008,2 shortly after the district court decision in Schrock. (Co-author Robert W. Clarida drafted an amicus brief to the Seventh Circuit urging reversal in Schrock.)
At the time, the cases appeared to diverge as to three fundamental questions: (1) Is a photograph of a copyrighted work a derivative work at all? (the “Definition Question”); (2) Must such a derivative work exhibit a higher level of originality in order to qualify for copyright protection? (the “Originality Question”); (3) Must the creator of such a derivative work obtain separate specific permission to register his or her copyright, over and above the permission required to create the derivative work? (the “Permission Question”).
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