which copyright protection is sought must "owe[] its origin" to the putative copyright holder) (internal quotation omitted). In addition, the work must "possesses at least some minimal degree of creativity," Feist, 499 U.S. at 345; see also William F. Patry, Patry on Copyright § 3:27 ("both independent creation and a minimal degree of creativity are required"), though this is not to say that to count as containing a minimal degree of creativity a work must have aesthetic merit in the minds of judges (arguably not always the most artistically discerning lot). As the Court explained through Justice Holmes, even "a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright . . . ." Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903); see also Feist, 499 U.S. at 345 (all that’s needed is some creative spark, "no matter how crude, humble, or obvious").[1]
The parties focus most of their energy in this case on the question whether Meshwerks' models qualify as independent creations, as opposed to copies of
- ↑ The two pertinent concepts – independent creation and minimal creativity – are intertwined and overlap, at least to some degree: After all, if something qualifies as an independent creation (that is, it is more than a copy) won’t it also usually betray some minimal degree of creativity? Still, though the independent test imputed by the creativity requirement is low, it does exist. Feist, 499 U.S. at 345, 362. It is thus not the case, as some interpreted Judge Learned Hand to say when he observed that "'no photograph, however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike,'" that photographs (or any other works, for that matter) are per se protectable. See SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 309 (S.D.N.Y. 2000) (quoting Jewelers' Circular Publ'g Co. v. Key-Stone Publ'g Co., 274 F. 932, 934 (S.D.N.Y. 1921) (Hand, J.)).
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