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A Model Opinion Affirmed

By Senior Copyright Counsel, Google Inc.

On October 4, 2006, I did a blog on a district court opinion in Utah holding, on summary judgment, that computer modeling of Toyota cars did not meet the requisite standard of originality. I was surprised by the opinion. The Tenth Circuit unanimously affirmed yesterday in a well-written and persuasive opinion by Judge Gorsuch, Meshwerks, Inc. v. Toyota Motor Sales, U.S.A., Inc., (Docket No. 06-4222). The opinion contains appendices with pictures that are helpful. I still have doubts about the result, but now believe it a closer question than I previously thought.

The relevant facts are these: for the introduction of its 2004 Toyota hired the advertising company of Saatchi and Saatchi; both companies agreed the campaign would involve digital models that could be used on Toyota?s website and in other media. Toyota and Saatchi hired Grace & Wild to supply the digital models. G&W in turn subcontracted with plaintiff Meshwerks to do some, but not all of the work, in producing the final digital models: Meshwerks would do the digitization and basic modeling; G&W would then take Meshwerk?s work and add details, as well as color, texture, lighting, and animation. The suit arose over a dispute about the scope of the license granted by Meshwerks.

To perform its part of the ultimate product, Meshwerk employees began with the actual cars. The employees put tape on the cars in a grid pattern. Each point of an intersection of the grid was marked by a mechanical arm, to which a computer was attached, resulting in a file of data points. Using off-the-shelf software, those points could be opened up, and once opened up an image of the car would appear. It is undisputed that it took Meshwerks 80 to 100 hours to produce a model for each care; it is also undisputed that Meshwerks altered over 90% of the data points collected during the original digitization process, in order to get a model that looked as much as possible like the actual car. Some elements of the car had to be created from scratch.

If one were to apply a labor theory of originality, there is no doubt Meshwerks would meet that standard. But the labor theory was rightly rejected by the Supreme Court in its 1991 Feist opinion. Two factors were of critical importance to the Tenth Circuit in affirming the district court?s grant of summary judgment to defendants (1) G&W, not Meshwerks made all the decisions regarding ?lighting, shading, the background in front of which the vehicle would be posed, the angle at which to pose it, or the like; (2) Meshwerks? purpose was to ?depict nothing more than unadorned Toyota vehicles, the car as car.?

On this last point, the pictures in the appendices help. I agree that if the final result is not copyrightable, it doesn?t matter how much labor or skill went into production of the models. The use of off-the-shelf software to produce the data points did not result in a copyrightable work; instead, the originality, if any, must be found in what Meshwerks did after the original digitization and before G&W took over and added more traditional creative elements. The court of appeals seemed to think that Meshwerks? contributions were taken the unprotectible data points and then tweaking them so that they looked as close at possible to the real car, an effort in found to be unoriginal under Feist, regardless of how many hours it took.

I am more sympathetic to this view than I was before, but I am still bothered by the premise that efforts to realistically depict an actual object are unoriginal. Superrealist oil paintings are an obvious example. I have a few posters of them, and if you don?t look closely you think it was a photograph. Photographs are of course protectible, usually, due to the lighting, shading, angle and other choices. But in Meshwerks those choices were made by G&W, and this is what seemed to persuade the court of appeals Meshwerk?s contributions were unoriginal.

If I was still writing casebooks for law school classes, Meshwerks would be a must for inclusion in the next edition.

Full post as published by The Patry Copyright Blog on June 18, 2008 (boomark / email).