Toyota's handiwork. But what can be said, at least based on received copyright doctrine, to distinguish an independent creation from a copy? And how might that doctrine apply in an age of virtual worlds and digital media that seek to mimic the "real" world, but often do so in ways that undoubtedly qualify as (highly) original? While there is little authority explaining how our received principles of copyright law apply to the relatively new digital medium before us, some lessons may be discerned from how the law coped in an earlier time with a previous revolution in technology: photography.
As Judge Pauley admirably recounted in SHL Imaging, Inc. v. Artisan House, Inc., photography was initially met by critics with a degree of skepticism: a photograph, some said, "copies everything and explains nothing," and it was debated whether a camera could do anything more than merely record the physical world. 117 F. Supp. 2d 301, 307 (S.D.N.Y 2000) (internal quotation omitted). These largely aesthetic debates migrated into legal territory when Oscar Wilde toured the United States in the 1880s and sought out Napoleon Sarony for a series of publicity photographs to promote the event.[1] Burrow-Giles, a lithography firm,
- ↑ The tour brought Wilde within what is now our territorial jurisdiction in 1882, including to the bustling silver mining town of Leadville, Colorado, where Wilde descended into Horace Tabor’s Matchless Mine and later claimed, "I read [assembled miners] passages from the autobiography of Benvenuto Cellini and they seemed much delighted. I was reproved by my hearers for not having brought him with me. I explained that he had been dead for some little time which elicited the enquiry 'Who shot him?'" Oscar Wilde, Impressions of America 31 (Keystone Press 1906).
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