Confirming this conclusion as well is the peculiar place where Meshwerks stood in the model-creation pecking order. On the one hand, Meshwerks had nothing to do with designing the appearance of Toyota’s vehicles, distinguishing them from any other cars, trucks, or vans in the world. That expressive creation took place before Meshwerks happened along, and was the result of work done by Toyota and its designers; indeed, at least six of the eight vehicles at issue are still covered by design patents belonging to Toyota and protecting the appearances of the objects for which they are issued. See 35 U.S.C. § 171; Gorham Mfg. Co. v. White, 81 U.S. 511, 525 (1871) ("It is the appearance itself, no matter by what agency caused, that constitutes mainly, if not entirely, the contribution to the public which the law deems worthy of recompense."). On the other hand, how the models Meshwerks created were to be deployed in advertising – including the
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originality requirement is "higher" for derivative works, that the district court erroneously applied this standard here, and that cases analyzing originality in derivative works are generally inapposite. In our de novo review, however, we have simply applied the Supreme Court's originality directives set out in Feist. And it appears to us that the courts in derivative works cases, see, e.g., ATC Distr. Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700, 712 (6th Cir. 2005); L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490-92 (2d Cir. 1976), just like the court in Skyy II, also had to separate out that which owed its origin to the putative copyright holder from that which did not, holding only the former copyrightable. In then examining the elements that are original to the author, the originality analysis ought to be the same. Patry on Copyright § 3:50 ("[T]he standard of originality for derivative works is no different than for nonderivative works."); id. § 3:55 (“Under the Supreme Court's Feist opinion, there is a single test for originality applicable to all works, derivative and nonderivative alike.").
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