Cite as 117 F.Supp.2d 301 (S.D.N.Y. 2000)
were taken or in the result.” (Weiss. Aff. ¶3; Mackiewies Aff. ¶¶3–4.) However, neither novelty non “substantial” originality are the tests for copyrightability. See Feist, 499 U.S. at 345, 111. S.Ct. at 1287 (“[o]riginality does not signify novelty”). The works need only possesses some minimal degree of creativity. See Feist, 499 U.S. at 345, 111. S.Ct. at 1287. While Lindner’s works may not be as creative as a portrait by Dianne Arbus, they show artistic judgment and therefore meet the Feist standard. That the photographs were intended solely for commercial use has no bearing on their protectibility. See Bleistein, 188 U.S. at 251–52, 23 S.Ct. at 300.
Defendants also seek to minimize plaintiff’s creativity by describing the photographs as “accurate and precise copies of framed mirrors.” Thus, they assert that the frames were “merely photographed one after another, all in the same straightforward manner faithfully to copy them to the medium of film.” (Munn Aff. ¶¶7, 9.) The “master” photographs of the frames offered as an exhibit to defendants’ expert’s affidavit, present a compelling visual case that undermines defendants’ arguments. (Oudit Harbhajan Aff. Ex. A.) The “master” photographs have none of the aesthetic elements that make plaintiff’s photographs attractive. The gilded frames are dull and the details are obscured by shadows or overexposed.
There is no legal significance to defendants’ argument that Lindner merely photographed one frame after another. Without contradiction, Lindner states that “[e]ach frame required a different treatment.” (Lindner Aff. ¶4.) Contrary to defendants’ assertion, there is no requisite amount of time necessary to create a copyrighted work; originality is the only requirement. As Circuit Judge Easterbrook observed:
The copyright laws protect the work, not the amount of effort expended. A person who produces a short new work or makes a small improvement in a few hours gets a copyright for that contribution fully as effective as that on a novel written as a life’s work. Perhaps the smaller the effort the smaller the contribution; if so, the copyright simply bestows fewer rights. Others can expend the same effort to the same end. Copyright covers, after all, only the incremental contribution and not the underlying information.
The input is irrelevant. A photograph may be copyrighted, although it is the work of an instant and its significance may be accidental. In 14 hours Mozart could write a piano concerto, J.S. Bach a cantata, or Dickens a week’s installment of Bleak House. The Laffer Curve, an economic graph prominent in political debates; appeared on the back of a napkin after dinner, the work of a minute. All of these are copyrightable.
Rockford Map Publishers, Inc. v. Directory Serv. Co., 768 F.2d 145, 148 (7th Cir.1985) (citations omitted).
While plaintiff’s photographs meet the minimal originality requirements in Feist, they are not entitled to broad copyright protection. Plaintiff cannot prevent others from photographing the same frames, or using the same lighting techniques and blue sky reflection in the mirrors. What makes plaintiff’s photographs original is the totality of the precise lighting selection, angle of the camera, lens and filter selection. In sum, plaintiff is granted copyright protection only for its “incremental contribution.” Rockford Map Publishers, 763 F.2d at 148. Practically, the plaintiff’s works are only protected from verbatim copying. However, that is precisely what defendants did.
V. Work-for-Hire
Defendants claim that even if the photographs are protectible, they were created for Interiors as works-for-hire. If this defense is proven, plaintiff’s infringement claim fails because as authors, defendants would own all copyrights in the photographs. See 17 U.S.C. §§ 101 (definition
