Franklin Mint Corp. v. Nat’l Wildlife Art Exch., 575 F.2d 62 (3d Cir. 1978)
- Paint Me a Cardinal
In 1972, Ralph H. Stewart wanted to start the National Wildlife Art Exchange, to commission and sell limited edition wildlife prints. Stewart hired the big deal wildlife artist Albert Earl Gilbert (http://albertearlgilbert.com/) to paint a watercolor of cardinals, based on normal source materials like photos, sketches, and two stuffed cardinals to study for his cardinal painting. Gilbert made the painting “Cardinals on Apple Blossom.”
- Falling Out
Gilbert and National Wildlife had a falling out, leading to some question about the ownership of the rights in the painting.
- A Cardinal for Someone Else
A few years later, Gilbert painted a new watercolor series for the Franklin Mint, including one called “The Cardinal” using some of the same source material (but not the stuffed birds):
- You Copied My Painting!
Stewart and the Franklin Mint sued each other over whether the new cardinal painting infringed the old cardinal painting.
- No infringement
The conventions of the medium (ornithological art) tend to limit novelty in the depiction of the birds. Although there are obvious similarities between the two drawings, there are readily apparent dissimilarities. The idea of drawing real life in a particular style cannot be monopolized, and the copyright in such works will necessarily be thin, requiring an almost line-by-line copying. That did not happen here.
I think this case will be useful in considering the copyrightability of 3D scans (separate from the objects that were scanned), and other art forms in which the intention of a process is to slavishly gather information describing an object such that a computer or other device can recreate the original as closely as possible. An unauthorized copy of a slavish copy will not infringe the slavish copy itself. It may take a lot of labor to recreate an object as a scanned file, but copyright law does not protect labor. The more creative a 3D scan is apart from the object it embodies, the more likely it is to be copyrightable. The more slavishly a 3D scan embodies an object, the less likely the scan is to be copyrightable.
- Feist Publ’ns, Inc., v. Rural Tel. Svc. Co., 499 U.S. 340 (1991) (holding that Rural’s telephone directory was not copyrightable, regardless of the amount of labor required to create it).
- Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008) (finding the he “unadorned, digital wire-frames of Toyota’s vehicles” uncopyrightable).
- Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998) (finding that exact photographic copies of public domain art were not copyrightable, and noting that “the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.”).