On 11 December 2014 at 18:04, Russavia russavia.wikipedia@gmail.com wrote:
Geni
You wouldn't be talking about the Skyy Spirits case would you? http://www.law.cornell.edu/copyright/cases/225_f3d_1068.htm
This case is not akin to that case in any way, shape or form. That issue was referring to the copyright on the 3D bottle. Refer to
https://commons.wikimedia.org/wiki/Commons:Copyright_rules_by_subject_matter...
The packaging in Steve's photo is 3D and to quote the significant bit of the case:
"We need not, however, decide whether the label is copyrightable because Ets-Hokin's product shots are based on the bottle as a whole, not on the label. The whole point of the shots was to capture the bottle in its entirety. The defendants have cited no case holding that a bottle of this nature may be copyrightable, and we are aware of none. Indeed, Skyy's position that photographs of everyday, functional, noncopyrightable objects are subject to analysis as derivative works would deprive both amateur and commercial photographers of their legitimate expectations of copyright protection. Because Ets-Hokin's product shots are shots of the bottle as a whole—a useful article not subject to copyright protection—and not shots merely, or even mainly, of its label, we hold that the bottle does not qualify as a "preexisting work " within the meaning of the Copyright Act."
The Steve's photo shows the whole of the packaging not just the images on it. The packaging is clearly functional and his photo has captured the packaging in its entirety. Commons policy does not overule the ninth circuit in this area.
But in Steven's case, it is also complicated by Japanese law having to be considered.
Having to? I think not. In any case long standing commons practice is only to consider the location of the photographer not the place of origin of the work or artist. Ets-Hokin v. Skyy Spirits, Inc. applies unless you are going to try and claim the packaging is not a useful article.