As a general matter, a plaintiff asserting copyright infringement must prove: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). There is no dispute here about copying; Learning Curve used Schrock’s photos in its promotional materials. The focus instead is on the validity of Schrock’s asserted copyright in the photos. The Copyright Act provides that “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). In this circuit, copyrightability is an issue of law for the court. Gaiman v. McFarlane, 360 F.3d 644, 648-49 (7th Cir. 2004).
Much of the briefing on appeal—and most of the district court’s analysis—concerned the classification of the photos as derivative works. A “derivative work” is:
- [A] work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
17 U.S.C. § 101. The Copyright Act specifically grants the author of a derivative work copyright protection in the
