Schrock v. Learning Curve Int’l, No. 08-1296, 2009 WL 3644331(7th Cir. Nov. 5, 2009).

The Seventh Circuit reversed and remanded Judge Shadur’s decision in this copyright case.*  The Court held that plaintiff’s photographs of defendant’s Thomas the Tank Engine trains were derivative works, and that absent a contractual provision to the contrary, plaintiff had a copyright in the derivative work.  Because plaintiff had permission to create the derivate works, plaintiff had a copyright in his derivative works.  And the Court could not decide whether the agreements prevented plaintiff from getting a copyright in the derivative work because the agreements were not part of the appellate record.  Additionally, the Court pointed out that the requirement that a derivative work be "substantially different" from the original did not create a heightened originality standard for derivative works.  The Court noted that plaintiff’s photographs of defendant’s Thomas the Tank engines had sufficient originality.

*  Click here for more about this case in the Blog’s archives.