NOELIA MONGE V. MAYA MAGAZINES, INC. - Ninth Circuit Court of ...

MONGE v. MAYA MAGAZINES, INC.
9195
‘compilation’ includes collective works.” 17 U.S.C. § 101
(emphasis added); see also id. (defining a “collective work”
as a work “in which a number of contributions, constituting
separate and independent works in themselves, are assembled
into a collective whole.” (emphasis added)).
The dissent’s effort to recast the images on the storage disk
as a “compilation” poses several insurmountable hurdles for
Maya. To its credit, Maya made no such argument; this theory
is an invention by the dissent. To begin, there is absolutely no
evidence that the multiple images were in any way “selected,
coordinated, or arranged” to create “an original work of
authorship.” Maya did not even submit for the record the
other material on the storage disk and nothing in the record
supports a finding regarding compilation. Indeed, it would
take an act of legal clairvoyance to deem the material on the
disk a copyrighted compilation without ever seeing it. Finally,
Maya bears the burden on this point and yet has offered nothing.
To say, as the dissent does, that Maya “carefully selected
the photos” (Dissent at 9214) glosses over the reality that
Maya copied all of the wedding-related photos. Total appropriation,
not selection, would be a more accurate characterization.
[16] Each of the individual wedding photos is a separate
work 10 because each photo “can live [its] own copyright life”
and “has an independent economic value and is, in itself, viable.”
Columbia Pictures TV, Inc. v. Krypton Broad. of Birmingham,
Inc., 259 F.3d 1186, 1193 (9th Cir. 2001)
(affirming prior decision that each episode of television series
was a separate “work”) (citations omitted). In sum, there is no
10 Although the Copyright Act does not define the term “work,” courts
approach the definition depending on the specific issue, for example,
deciding proper registration, determining whether a work is sufficiently
original, and calculating statutory damages. See generally Nimmer on
Copyright § 2.08. We need not parse the definition in the context of fair
use because the outcome does not depend on it. No evidence supports
treating the four hundred photos as a single work.