Independent Creation and Originality in the Age of Imitated Reality: A Comparative Analysis of Copyright and Database Protection for Digital Models of Real People
Bryce Clayton Newell · BYU Law Library (Brigham Young University) · 2010
This Article addresses a few of the issues that confront digital artists and modeling companies in the context of copyright law’s requirements of originality and independent creation, and provides a comparative look at potential protection for these types of digital models under differing definitions of originality. In an age when animators deal with pixels as well as paint brushes, the laws of the United States potentially offer digital artists less protection in this context than do the laws of other countries, such as the United Kingdom and Australia. Specifically, the requirement of originality after Feist and the lack of sui generis database protection in the United States provide less protection for digital visual effects artists engaged in modeling reality than do the laws of these other jurisdictions. This Article examines some examples of recent advancements in digital imaging technology; specifically, the ability to create digital clones of preexisting things, such as living or deceased personalities and other, non-human, objects. The Article then provides a comparative analysis of copyright’s requirement of originality in the United States, United Kingdom, and Australia, followed by a brief look at sui generis protection under the European Union’s recent directive on the legal protection of databases.