Copyright Protection for the Fruits of Digital Labor: Finding Originality in Digital Wire-Frames

Michael Palumbo

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Copyright encourages progress in the “useful arts” by securing certain exclusive rights to authors, thereby providing an economic incentive for intellectual endeavors. The United States is the world’s largest exporter of copyrighted material. As such, it is crucial for U.S. copyright law to remain on the cutting edge of technological innovation so as to protect this vital economic interest.  In order to ensure this objective is achieved, courts must remain constantly aware of  the underlying policies for protecting intellectual property and resist the practice of applying ill-fitting paradigms to new problems presented by changing technology.

Digital imaging technology is prevalent in all forms of visual communication. The ways in which some digital images are created present a unique set of problems for copyright law. Specifically, the creation of threedimensional images entails a multi-step process during which several potentially copyrightable works may be created.

Historically, courts have been slow to extend copyright protection to works created with the aid of new technology. As such, it is unclear whether courts will consistently extend copyright protection to expressions that arise at different stages of the digital imaging process.

This Note advocates that  works of authorship created at various stages of digital imaging processes, and in particular, digital wire-frames, are entitled to copyright protection. Digital wire-frames can be conceptualized as the “skeletons” of three-dimensional digital images. They are created by digital “sculptors” who meticulously construct them from various shapes and lines.

The first section of this Note presents background material about several foundational concepts in copyright law and digital imaging technology. This Note then demonstrates that digital wire-frames should be afforded copyright protection, because such wire-frames satisfy the elements of the Copyright Act. What is likely to be the biggest obstacle to copyright protection of digital wire-frames is finding originality.

Originality is a term of art within copyright.  The Supreme Court has held that originality is a constitutionally required element of copyright. The Supreme Court has also held that in order for a work to possess originality, it must satisfy two elements: (1) independent creation and (2) a “spark of creativity.” These elements impose an extremely low burden. Independent creation merely means that a work is  not copied. The “spark of creativity” requirement is less clearly defined. However, almost any artistic or aesthetic judgment will satisfy the “spark of creativity” requirement.

This Note posits that, almost by definition, wire-frames are original works of authorship fixed in a tangible medium of expression. As such, the protection of digital wire-frames is proper under the existing U.S. copyright law regime. Further, the underlying policy considerations that have historically driven copyright law in the United States present compelling reasons for protecting such works.

44 New Eng. L. Rev. 127