The Trademark Blog - Latest Comments in The Trademark Blog: Important Case (Maybe): 10th Circuit on Copyrightability of Digital Model

Re: The Trademark Blog: Important Case (Maybe): 10th Circuit on Copyrightability of Digital Model

PhillyChief — Fri, 14 May 2010 14:37:50 -0000

As a modeler, I can say that ANY choice in the process is creative expression. The polygon count is a conscious choice. The placement of any one point in the model is a creative choice. Two separate modelers could build the same object yet our wireframes (the underlying mesh shown in the first two pictures) could be very different looking. That's creative interpretation and expression.

The problem is one of education. Those who stand in judgement are ignorant of what they're forming judgements on. Perhaps what's needed is an explanation of the process in court. I'm immediately reminded of the extent at which the judge in Dover v Kitzmiller was educated on not just evolution, but how science works and what science means by "theory".

Re: The Trademark Blog: Important Case (Maybe): 10th Circuit on Copyrightability of Digital Model

esqmarty — Wed, 18 Jun 2008 14:20:06 -0000

No, that's not the problem with my comment. My inclination to want to
protect ingenuity in achieving fidelity is what's questionable (See Prof
Patry's discussion of the opinion), but I'll stick with conflate, used here
to mean an improper melding.

Re: The Trademark Blog: Important Case (Maybe): 10th Circuit on Copyrightability of Digital Model

JLW — Wed, 18 Jun 2008 12:43:10 -0000

I hate the word "conflate." Wouldn't "confuse" work as well? Or better?
Once I saw the word "conflate," I had to disagree with your comment just out of anti-conflate principles.
I think a work has to clear some minimum threshold of originality. I.e., a little bit of originality isn't enough. Wasn't there a case on metal Uncle Sam banks that found insufficient originality to meet the minimum threshold?
JLW

Re: The Trademark Blog: Important Case (Maybe): 10th Circuit on Copyrightability of Digital Model

bdwassom — Wed, 18 Jun 2008 10:00:31 -0000

Marty;

You say, "if there was creativity and originality in achieving the fidelity, then to the extent those creative and original efforts are expressed, that expression should be copyrightable." The court, quoting Prof. Patry, said, "both independent creation and
a minimal degree of creativity are required." What's the difference? Everyone is applying the same law here; it's just a question of what the facts show. The court found that under these facts, there was no original expression.