## Facts

- HIT Entertainment owned copyrights in the “Thomas & Friends” characters and licensed Learning Curve International, Inc. to manufacture related toy figures.
- Learning Curve hired photographer Daniel P. Schrock to photograph the toys for promotional materials over several years.
- Schrock exercised creative control over lighting, angle, focus, and related techniques to present the toys more favorably than they appeared in person.
- After Learning Curve stopped hiring Schrock, it continued using some of his photographs in advertising and product packaging.
- Schrock registered copyrights in the photographs and sued Learning Curve, RC2 Brands, Inc., and HIT for copyright infringement based on post-registration use.

## Issues

1. Whether an author who is authorized to create photographs of copyrighted characters must obtain additional permission from the copyright owner or its licensee to claim and register copyright in the photographs as derivative works.
2. Whether derivative works are subject to a heightened originality requirement, and whether Schrock’s photographs contained sufficient incremental originality to be copyrightable.

## Decision

- The Seventh Circuit reversed the district court’s summary judgment for defendants and remanded.
- Assuming without deciding that the photographs were derivative works, the court held that authorization to create the photographs was sufficient for Schrock to own copyright in the photographs’ incremental original expression.
- The court rejected a heightened originality standard for derivative works and concluded Schrock’s creative choices could satisfy ordinary originality.
- The court remanded for further proceedings, including determination of any contractual understandings that could modify default ownership or usage rights.

## Legal Principles

- Copyright in a derivative work’s original elements arises by operation of law once the work is lawfully created; it does not require separate permission to “copyright” or register beyond permission to create.
- Protection for a derivative work extends only to the author’s incremental original expression and does not affect rights in the underlying work.
- Derivative works are not subject to a higher originality threshold than other works; ordinary originality applies.
- Parties may alter default copyright ownership or permitted uses by contract, and such agreements can control allocation of rights.

## Conclusion

The Seventh Circuit held that a photographer authorized to create images of copyrighted characters may claim copyright in the photographs’ original expressive contributions without additional permission to register or own that copyright, and that derivative works are evaluated under the ordinary originality standard, subject to any contrary contractual allocation of rights on remand.


Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513 (7th Cir. 2009)