The Gray Blog

In non-gray market news, the Court of Appeal for the Tenth Circuit has held that a computer wireframe model that is unadorned and lacks any creative context, one that merely reproduces the image of a car without shading lighting or surrounding objects, does not constitute copyrightable content. In Meshwerks, Inc. v. Toyotta Motor Sales U.S.A., Inc. No. 06-4222 (10th Cir. June 17, 2008) the Court affirmed a ruling from the lower court denying copyright protection to such works. The Court nonetheless denied a motion claiming that the suit had been frivolous and seeking attorneys fees and stated that “[f]ar from being frivolous, this suit presents a novel and consequential question focused on the copyrightability of images in a relatively new technological medium.”

As part of its 2003 advertising campaign, Toyota decided to use digital models of some of its vehicles on its website and on various other media. Through its advertising agency Toyota hired Meshwerks, a Utah corporation to do the digital modeling. “Digitizing involves collecting physical data points from the object to be portrayed. In the case of Toyota’s vehicles, Meshwerks took copious measurements of Toyota’s vehicles by covering each car, truck, and van with a grid of tape and running an articulated arm tethered to a computer over the vehicle to measure all points of intersection in the grid. Based on these measurements, modeling software then generated a digital image resembling a wire-frame model. In other words, the vehicles’ data points (measurements) were mapped onto a computerized grid and the modeling software connected the dots to create a “wire frame” of each vehicle.” At this point further manual shaping had to be done to accurately map every element and shape of the vehicle.

Meshwerks completed the project and delivered the work to Toyota for use in its advertising campaign. The dispute arose when Toyota and its advertising company tried to use the digital models for new advertisements. Meshwerks claimed that they had only authorized a single use of the works. Furthermore, Meshwerks sought and obtained copyright registration for the models. Presumably a work made for hire agreement was not executed as part of the engagement.

Much of the decision was devoted to a comparison with photography related copyright cases. In that respect the Court stated that “the photographer is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” quoting Nimmer on Copyright § 3.03[C][3]. By contrast “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.” To the extent that the wiremesh models were later placed in ads which showed lighting, angles, colors and other creative context, those were creative additions which would follow but where not inherent in the original wireframe models. Those were creative additions by those “who came after Meshwerks left the scene.”

The Court concluded that merely copying a copyrighted work without adornment does not create a new copyrighted work. To the extent that the copy is adorned, the only that which is added is apt to be protected. “[A] putative creator who merely shifts the medium in which another’s creation is expressed has not necessarily added anything beyond the expression contained in the original.”

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