## Facts

- Joshua Ets-Hokin, a commercial photographer, was hired by Skyy Spirits to create advertising photographs of the SKYY vodka bottle.
- Ets-Hokin produced and delivered finished “product shot” images featuring the bottle against plain backgrounds with strong backlighting, left-side illumination, a slight right-side shadow, and a straight-on camera angle with the label centered; one image also included a martini glass.
- Ets-Hokin retained copyright ownership and granted Skyy a limited license; the scope of that license later became disputed.
- Skyy later hired other photographers and used both Ets-Hokin’s photos and later photos of the bottle in advertising.
- After registering his copyrights, Ets-Hokin sued, alleging Skyy exceeded the license and that later bottle photos were made by copying his images as models.
- The district court granted summary judgment to defendants on the copyright claims, reasoning the photos were derivative of the SKYY bottle and lacked sufficient protectable originality.
- Ets-Hokin appealed; the appeal addressed threshold copyrightability and the district court’s derivative-work analysis, not ultimate infringement.

## Issues

1. Whether Ets-Hokin’s commercial photographs of the SKYY vodka bottle contain sufficient originality to qualify for copyright protection.
2. Whether the photographs are properly treated as “derivative works” of a preexisting work (the vodka bottle or its label), limiting or negating protection.

## Decision

- The Ninth Circuit reversed summary judgment for defendants and remanded.
- The court held the photographs satisfied the Copyright Act’s low originality threshold and were copyrightable.
- The court held the photographs were not derivative works because the alleged underlying work—the vodka bottle—was not itself subject to copyright protection.
- The court left infringement questions (including the scope of protection and related defenses) for the district court on remand.

## Legal Principles

- Copyright requires only a minimal degree of creativity; photographs may be protected based on creative choices such as lighting, composition, angle, and arrangement.
- Commercial purpose does not bar copyright protection for photographs.
- A “derivative work” must be based on a preexisting work that is itself within copyright’s subject matter; depicting an uncopyrightable utilitarian object does not make a photograph derivative of that object.
- Even when a photograph is copyrightable, the protectable scope may be narrow where many expressive choices are constrained; infringement analysis may be affected by doctrines such as merger and scènes à faire.

## Conclusion

The Ninth Circuit held that Ets-Hokin’s product photographs contained sufficient original expression to be copyrighted and could not be classified as derivative works of an uncopyrightable vodka bottle, reversing summary judgment and remanding for further proceedings on infringement and related defenses.


Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000)