全屏显示专题章节

This appeal brings up to us questions of some novelty, at least in this circuit, regarding the required originality for copyrighting a derivative work.

In 1939 MGM produced and copyrighted the movie “The Wizard of Oz.”The central character in the movie, Dorothy, was played by Judy Garland. The copyright was renewed by MGM in 1966 and is conceded, at least for purposes of this case, to be valid and in effect today. In 1976 MGM licensed Bradford Exchange to use characters and scenes from the movie in a series of collectors’ plates. Bradford invited several artists to submit paintings of Dorothy as played by Judy Garland, with the understanding that the artist who submitted the best painting would be offered a contract for the entire series. Bradford supplied each artist with photographs from the movie and with instructions for the painting that included the following: “We do want your interpretation of these images, but your interpretation must evoke all the warm feeling the people have for the film and its actors. So, your Judy/Dorothy must be very recognizable as everybody’s Judy/Dorothy.”

Jorie Gracen, an employee in Bradford’s order-processing department, was permitted to join the competition. From photographs and her recollections of the movie (which she had seen several times) she made a painting of Dorothy as played by Judy Garland. Bradford exhibited it along with the other contestants’ paintings in a shopping center. The passersby liked Miss Gracen’s the best, and Bradford pronounced her the winner of the competition and offered her a contract to do the series, as well as paying her, as apparently it paid each of the other contestants, $200. But she did not like the contract terms and refused to sign, and Bradford turned to another artist, James Auckland, who had not been one of the original contestants. He signed a contract to do the series and Bradford gave him Miss Gracen’s painting to help him in doing his painting of Dorothy.

Gracen’s counsel describes Auckland’s painting of Dorothy as a “piratical copy” of her painting. Bradford could easily have refuted this charge, if it is false, by attaching to its motion for summary judgment a photograph of its Dorothy plate, but it did not, and for purposes of this appeal we must assume that the plate is a copy of Miss Gracen’s painting. This is not an absurd supposition. Bradford, at least at first, was rapturous about Miss Gracen’s painting of Dorothy. It called Miss Gracen “a true prodigy.” It said that hers“was the one painting that conveyed the essence of Judy’s character in the film... the painting that left everybody saying, ‘That’s Judy in Oz.’ ”Auckland’s deposition states that Bradford gave him her painting with directions to “clean it up,” which he understood to mean: do the same thing but make it “a little more professional.”

Auckland completed the series, and the plates were manufactured and sold. But Miss Gracen meanwhile had obtained copyright registrations on her painting and drawings, and in 1978 she brought this action for copyright infringement against MGM, Bradford, Auckland, and the manufacturer of the plates. MGM and Bradford counterclaimed, alleging among other things that Miss Gracen had infringed the copyright on the movie by showing her drawings and a photograph of her painting to people whom she was soliciting for artistic commissions.

The district court granted summary judgment against Miss Gracen. It held that she could not copyright her painting and drawings because they were not original and that she had infringed MGM’s copyright.

At issue in such a case is not the right to copy the underlying work but whether there is enough difference between the derivative and the underlying work to satisfy the statutory requirement of originality, and thus make the derivative work copyrightable.

Miss Gracen reminds us that judges can make fools of themselves pronouncing on aesthetic matters. But artistic originality is not the same thing as the legal concept of originality in the Copyright Act. Artistic originality indeed might inhere in a detail, a nuance, a shading too small to be apprehended by a judge. A contemporary school of art known as “Super Realism” attempts with some success to make paintings that are indistinguishable to the eye from color photographs. These paintings command high prices; buyers must find something original in them. Much Northern European painting of the Renaissance is meticulously representational, and therefore in a sense—but not an aesthetic sense—less“original” than Cubism or Abstract Expressionism. A portrait is not unoriginal for being a good likeness.

But especially as applied to derivative works, the concept of originality in copyright law has as one would expect a legal rather than aesthetic function-to prevent overlapping claims. Suppose Artist A produces a reproduction of the Mona Lisa, a painting in the public domain, which differs slightly from the original. B also makes a reproduction of the Mona Lisa. A, who has copyrighted his derivative work, sues B for infringement. B’s defense is that he was copying the original, not A’s reproduction. But if the difference between the original and A’s reproduction is slight, the difference between A’s and B’s reproductions will also be slight, so that if B had access to A’s reproductions the trier of fact will be hard-pressed to decide whether B was copying A or copying the Mona Lisa itself. Miss Gracen’s drawings illustrate the problem. They are very similar both to the photographs from the movie and to the plates designed by Auckland. Auckland’s affidavit establishes that he did not copy or even see her drawings. But suppose he had seen them. Then it would be very hard to determine whether he had been copying the movie stills, as he was authorized to do, or copying her drawings.

The painting of Dorothy presents a harder question. A comparison of Figures 1 and 2 reveals perceptible differences. A painting (except, perhaps, one by a member of the Super Realist school mentioned earlier) is never identical to the subject painted, whether the subject is a photograph, a still life, a landscape, or a model, because most painters cannot and do not want to achieve a photographic likeness of their subject. Nevertheless, if the differences between Miss Gracen’s painting of Dorothy and the photograph of Judy Garland as Dorothy were sufficient to make the painting original in the eyes of the law, then a painting by an Auckland also striving, as per his commission, to produce something “very recognizable as everybody’s Judy/Dorothy” would look like the Gracen painting, to which he had access; and it would be difficult for the trier of fact to decide whether Auckland had copied her painting or the original movie stills. True, the background in Miss Gracen’s painting differs from that in Figure 2, but it is drawn from the movie set. We do not consider a picture created by superimposing one copyrighted photographic image on another to be “original”—always bearing in mind that the purpose of the term in copyright law is not to guide aesthetic judgments but to assure a sufficiently gross difference between the underlying and the derivative work to avoid entangling subsequent artists depicting the underlying work in copyright problems.

We are speaking, however, only of the requirement of originality in derivative works. If a painter paints from life, no court is going to hold that his painting is not copyrightable because it is an exact photographic likeness. If that were the rule photographs could not be copyrighted. The requirement of originality is significant chiefly in connection with derivative works, where if interpreted too liberally it would paradoxically inhibit rather than promote the creation of such works by giving the first creator a considerable power to interfere with the creation of subsequent derivative works from the same underlying work.

Justice Holmes’ famous opinion in Bleistein v. Donaldson Lithographing Co.(188 U.S. 239, 1903), heavily relied on by Miss Gracen, is thus not in point. The issue was whether lithographs of a circus were copyrightable under a statute (no longer in force) that confined copyright to works “connected with the fine arts.” Holmes’ opinion is a warning against using aesthetic criteria to answer the question. If Miss Gracen had painted Judy Garland from life, her painting would be copyrightable even if we thought it kitsch; but a derivative work must be substantially different from the underlying work to be copyrightable.

We agree with the district court that under the test of Batlin Miss Gracen’s painting, whatever its artistic merit, is not an original derivative work within the meaning of the Copyright Act. The judgment dismissing the complaint is therefore affirmed.