Derivative Works: Photographs of Sculptural Works

In Schrock v. Learning Curve, 2009 WL 3644331, --- F.3d --- (7th Cir. Nov. 5 2009), the Seventh Circuit took up the question of whether a very simple straightforward photograph of Thomas the Train (above) is a derivative work, and if so, whether the product photographer could register his copyrights after his client's two-year license to use the photographs expired and the client continued to use the photographs.

The court found that the photographer had a narrow copyright in the photograph, that the photograph was a derivative work, and that once the copyright owner in Thomas the Train had given consent to have the work photographed, the photographer didn't require the permission of the toy company to register his copyrights.

If a court found originality in the photograph above, it sets the bar very low for photography for works of visual art because it is hard to think of a less original photograph of a toy train.

The Seventh Circuit noted that parties may limit by contract the rights of third parties to create and register derivative works and further found that the toy company, its distributor and the photographer's ultimate rights may be governed by license agreements that were not part of the record.   A clear warning to those drafting license agreements to pay attention to how products are promoted and distributed.