dissenting:
The majority opinion errs in reversing the district court’s summary judgment order because there is no way that Ets-Hokin can prove infringement given the low standard of originality for photographs. I agree with the majority opinion that under this standard that Ets-HoMn’s photographs are original. By the same token, however, so are the other allegedly infringing photographs of Skyy’s vodka bottle.1 These subsequent photographs *1083are based on slightly different angles, different shadows, and different highlights of the bottle’s gold label. Thus, even if the district court had applied the proper standard of originality, Ets-Hokin’s lawsuit would not have survived summary judgment because the subsequent photographs also possess originality.2 Furthermore, as a matter of law, legal defenses such as scenes á faire and the merger doctrine prevent Ets-Hokin from prevailing on his copyright infringement claims.
I also agree with the majority opinion that the district court erred by basing its summary judgment order solely on a derivative works analysis. The majority opinion, however, fails to acknowledge that it is a much closer question (and a question that lacks clear statutory or judicial authority) whether a photograph of a vodka bottle can be subject to derivative works analysis. A derivative work is defined as “a work based upon one or more preexisting works such as a translation, musical arrangement, dramatization, fietionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. Although we have recognized that the statutory definition of a derivative work is “hopelessly over broad,” see Micro Star v. Formgen, Inc., 154 F.3d 1107, 1110 (9th Cir.1998), the definition is limited by additional non-statutory requirements. Micro Star recognized that a derivative work “must substantially incorporate protected material from the preexisting work.” See id. (citing Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir.1984)) (emphasis added).
It is not clear from the plain meaning of the copyright statute that a preexisting work must be copyrighted or whether the underlying work merely must be protecta-ble. The majority opinion relies on inferences in the copyright statute and absence of references to derivative works in the trademark and patent statutes. The opinion’s only other authority is based on selective quotations from Nimmer’s treatise. See, e.g., Micro Star, 154 F.3d at 1112 (quoting Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1343 (1988) (quoting 1 Nimmer on Copyright § 3.01 (1986 ed.))) (“ ‘ “A work will be considered a derivative work only if it would be considered an infringing work if the material which it has derived from a preexisting work has been taken without the consent of a copyright proprietor of such preexisting work.” ’ ”).
Yet neither the majority opinion nor Ets-Hokin cites any cases that say preexisting works protected by trade dress and trademarks cannot be protected from derivative works. But see Theotokatos v. Sara Lee Personal Prods., 971 F.Supp. 332, 338 (N.D.Ill.1997) (finding a derivative work based on preexisting logos and trademarks); Moore Publishing, Inc. v. Big Sky Mktg., Inc., 756 F.Supp. 1371, 1375 (D.Idaho 1990) (finding a derivative work based on logos). Although in a dissent to a case about unlicensed photographs of Cleveland’s Rock and Roll Hall of Fame, Chief Judge Boyce Martin assumed for the purposes of his argument that a photograph of a Coke bottle was a derivative work:
When a Coke bottle is photographed it loses a dimension, but the subject of the picture remains recognizable as one of a trademarked, three-dimensional figure. If a photograph of a trademark — for example, one of the Coke bottle — can be sold by the owner of the trademark in a poster form, that poster naturally must *1084be recognized as one of the owner’s “goods”, albeit a derivative good.
Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Prods., 134 F.3d 749, 757 (6th Cir.1998) (Martin, C.J., dissenting). Martin’s analysis mirrors the analysis in this case and in derivative works cases in other circuits.3 Suffice to say, in order to trigger a derivative works analysis, some aspect of the preexisting work must be protected, either by copyright or by trademark and trade dress.
The flaw in the majority opinion’s derivative works analysis is that it consistently understates the protected elements of Skyy’s vodka bottle, beginning with the opinion’s attempt to reproduce Skyy’s label in the statement of facts. The opinion’s rough, non-scale, black-and-white depiction ignores the way Skyy’s gold label contrasts with its electric blue bottle. Vodka bottles are often the subject of highly-competitive print advertising campaigns. For example, Absolut Vodka is famous for its clever ads featuring its bottle. The majority opinion overlooks the Skyy bottle’s copyrightable elements — its non-utilitarian features (such as the color and shape of the bottle) and its label. Furthermore, the bottle and label also are subject to trademark and trade dress protection. If derivative works analysis is limited solely to copyrighted works (as opposed to works protected by trademark and trade dress), it is up to Congress, not the Ninth Circuit, to say so. As it currently stands, derivative works analysis may be another means of preventing Ets-Hokin from obtaining a monopoly over product shots of Skyy’s bottle.
The district court should not have dismissed this case solely based on a derivative works analysis because this case could have been dismissed on firmer legal grounds — the originality of the allegedly infringing photographs and the merger doctrine. The majority opinion, however, compounds the district court’s error with a blanket rejection of a derivative works analysis in this case. Thus, I would affirm the district court’s summary judgment order, albeit on slightly different grounds. I respectfully dissent.
. Although it may be Ets-Hokin's best argument, this is not a licensing case about the unauthorized use of Ets-Hokin’s photographs. See Mendler v. Winterland Prod., 207 F.3d 1119 (9th Cir.2000). The district court made an unambiguous factual finding (which we review for clear error) that Ets-Hokin abandoned his claims about the unauthorized use of his photographs in advertisements. Nor does Ets-Hokin attempt to rebut the district court's finding of abandonment in his appellate briefs. The majority opinion attempts to ignore the district court's factual findings and the lack of argument by Ets-Hokin on this issue. Nonetheless, the only remaining issue in this case is whether the subsequent photographs of Skyy's bottle infringe on Ets-Ho-kin's copyright. As a matter of law, there cannot be infringement because of the low standard of originality.
. We have recognized two exceptions to this broad rule of originality: (1) a photograph of a copyrighted photograph; and (2) a photograph that duplicated every single element of a copyrighted photograph. See Los Angeles News Serv. v. Tullo, 973 F.2d 791, 794 n. 2 (9th Cir.1992) (citing Nimmer on Copyright, § 2.08[E][1], at 2-126.3-2.126.7 (1992 ed.)). Neither of these exceptions applies to this case. Given the different angles, shadows, and highlights of the subsequent photographs, they are not virtually identical and therefore do not infringe on Ets-Hokin’s photographs.
. The majority's attempt to distinguish Judge Posner’s decision in Gracen v. Bradford Exch., 698 F.2d 300 (7th Cir.1983) — because Gracen is a derivative works case based on a "unquestionably” copyrighted work — is unpersuasive. Gracen, 698 F.2d at 302 (finding a painting copied from still-life photographs of Dorothy from the movie "The Wizard of Oz” to be a derivative work) appears to be on point with this case, especially given that the Skyy bottle’s label and non-utilitarian features are copyrightable. Nor does the majority opinion specifically address Chief Judge Martin’s coke bottle analogy in Rock and Roll Hall of Fame and Museum. Together, Gracen and the coke bottle analogy suggest that a derivative works analysis may be appropriate in this case, though not as a means of granting summary judgment.