ing that the bottle was not independently copyrightable. Thus, the Ninth Circuit reasoned that the bottle was not a preexisting work. Ets-Hokin, at 1077–1082. This Court respectfully believes that the Ets-Hokin court misconstrued the nature of derivative works. While the Ets-Hokin court correctly noted that a derivative work must be based on a “preexisting work,” and that the term “work” refers to a “work of authorship” as set forth in 17 U.S.C. § 102(a), it failed to appreciate that any derivative work must recast, transform or adopt the authorship contained in the preexisting work. A photograph of Jeff Koons’ “Puppy” sculpture in Manhattan’s Rockefeller Center, merely depicts that sculpture; it does not recast, transform, or adapt Koons’ sculptural authorship. In short, the authorship of the photographic work is entirely different and separate from the authorship of the sculpture.
This is not to suggest that photographs are incapable of derivative authorship. A cropped photograph of an earlier photograph is a derivative work. Re-shooting an earlier photographic work with some alteration of the expressive elements is another example. However, in both cases the nature of photographic authorship would have been recast, adapted, or transformed. Since plaintiff’s photographs merely depict defendants’ frames and do not recast, adapt or transform any authorship that may exist in the frames, they are not derivative works.
IV. Originality
Since the photographs are not derivative works, the next issue is whether they satisfy the general constitutional requirement of originality. Defendants assert they do not. Before addressing defendants’ arguments, it is useful to review the nature of copyright in photographs so that those general principles can be applied to this claim.
Photographs did not receive federal copyright protection until the Act of March 3, 1865, 38th Cong., 2d Sess., 16 Stat. 198. See also Cong. Globe 981 (Feb. 22, 1865); William Patry, 1 Copyright Law & Practice 248–253 (1994) [hereinafter “Patry”]. However, photography had become an established commercial endeavor as early as 1839, when the French government made the daguerreotype process available and William Talbot produced negative images on paper through a process called, eponymously, “Talbottype.” See Naomi Rosenblum, A History of Women Photographers 42 (1994) [hereinafter “A History of Women Photographers ”]; Naomi Rosenblum, A World History of Photography 47 (3d ed.1997) [hereinafter “A World History of Photography ”]. The following year, Alexander Wolcott and John Johnson established the first commercial photography studio in the United States here in New York City. Four years later, Mathew Brady, whose subsequent photographs of the Civil War would gain world wide recognition, established his studio in lower Manhattan. See A World History of Photography at 47. By the 1850s, small cartes-de-visite photographs were exchanged with all the passion baseball cards would be traded a century later. Even Queen Victoria is reported to have collected more than one hundred albums of photographs of European royalty. See A World History of Photography at 64.
The reason for the delay in extending federal copyright protection for photographs will likely never be known, but the increased post-Civil War commercial popularity of portraiture photography by leading figures such as Mathew Brady, Napoleon Sarony, and Julia Margaret Cameron may have led to widespread piracy, and, therefore, calls for protection.
Even though photography had been poetically referred to as “drawing with the aid of the sun,”
[i]t was not yet clear whether photography could produce art or merely a record, whether it would be just a pastime or could fulfill more serious purposes, whether it was limited by its current
