Before: Procter Hug, Jr., Chief Judge, and Dorothy W. Nelson
and M. Margaret McKeown, Circuit Judges.
McKEOWN, Circuit Judge:
 This case requires us to apply copyright principles
to stylized photographs of a vodka bottle. Specifically, we must decide whether
professional photographer Joshua Ets-Hokin's commercial photographs, dubbed
"product shots, " of the Skyy Spirits vodka bottle merit copyright protection.
Given the Copyright Act's low threshold for originality generally and the
minimal amount of originality required to qualify a photograph in particular,
we conclude that Ets-Hokin's photographs are entitled to copyright protection.
 We also conclude that the district court erred in
analyzing this case through the lens of derivative copyright. The photographs
at issue cannot be derivative works because the vodka bottle--the alleged
underlying work--is not itself subject to copyright protection. Accordingly,
we reverse the grant of summary judgment for Skyy Spirits and remand for consideration
of whether infringement has occurred.
I. THE STORY
 The centerpiece of this case and the subject of
the photographs is a vodka bottle, shaped like a wine bottle, with boldly
colored blue glass, a "pilfer-proof" cap, and a rectangular label. The label,
which has a shiny blue background and a thin gold border, includes text that
reads as follows:
SKYY SPIRITS INC., SAN FRANCISCO
40% ALCOHOL BY VOLUME (80 PROOF)
DISTILLED IN AMERICA FROM AMERICAN GRAIN
The text is in various fonts and sizes, all colored gold, except for "VODKAŽ,"
which is white. These are the label's only adornments; there are no pictures,
illustrations, or other noteworthy features on the label or elsewhere on the
 Ets-Hokin is a professional photographer who maintains
a studio in San Francisco. Maurice Kanbar, the president of Skyy Spirits,
Inc. ("Skyy"), and Daniel Dadalt, an employee of the company, visited his
studio in the summer of 1993. During this visit, Kanbar and Dadalt reviewed
Ets-Hokin's photograph portfolio and subsequently hired him to photograph
Skyy's vodka bottle.[n1] Ets-Hokin
then shot a series of photographs and ultimately produced and delivered three
photographs of the bottle. In all three photos, the bottle appears in front
of a plain white or yellow backdrop, with back lighting. The bottle seems
to be illuminated from the left (from the viewer's perspective), such that
the right side of the bottle is slightly shadowed. The angle from which the
photos were taken appears to be perpendicular to the side of the bottle, with
the label centered, such that the viewer has a"straight on" perspective. In
two of the photographs, only the bottle is pictured; in the third, a martini
sits next to the bottle.
 Under the terms of a confirmation of engagement,
signed by Dadalt on Skyy's behalf, Ets-Hokin retained all rights to the photos
and licensed limited rights to Skyy. The parties dispute the scope of the
license, including whether Skyy was licensed to use the photographs in advertising
or in publications distributed to the public. After the confirmation was executed,
Ets-Hokin applied to the U.S. Copyright Office for a certificate of registration
for his series of photos, and a certificate was issued effective on March
10, 1995. Section six of the registration form, which instructs the applicant
to "[c]omplete both space 6a & 6b for a derivative work," was left blank.
 Skyy claims that it found Ets-Hokin's photographs
unsatisfactory and thus hired other photographers to photograph the bottle.
In dealing with these photographers, Skyy sought to purchase all rights to
the photographs of the bottle, as opposed to the license arrangement it had
agreed to with Ets-Hokin. One photographer refused to sell his photograph
outright, insisting on licensing. Two other photographers were apparently
willing to sell all rights to their photographs.
 Ets-Hokin brought suit against Skyy and three other
defendants[n2] for copyright
infringement, fraud, and negligent misrepresentation. He alleged that the
company used his work in various advertisements, including in Deneuve
magazine and the San Francisco Examiner, and on the side of a bus,
without his permission and in violation of the limited license. He also alleged
that Skyy used photographs taken by the other photographers that mimicked
his own photos; specifically, he claimed that these photographers improperly
used his photographs to produce virtually identical photos of the vodka bottle.
II. THE DISTRICT COURT'S RULING
 The defendants argued that Ets-Hokin's photographs
were not subject to copyright protection. Contending that Ets-Hokin's photos
of the Skyy bottle were derivative works, the defendants moved for summary
judgment on the grounds that Ets-Hokin raised no genuine issue of material
fact to support the validity of his copyright or his claim of infringement.
The district court granted the defendants' motion on the ground that Ets-Hokin
failed to establish the validity of his copyright. As a result, the court
did not reach the question of infringement. The court also dismissed Ets-Hokin's
claims of fraud and negligent misrepresentation. Ets-Hokin v. Skyy Spirits,
Inc., No. C 96-3690 SI, 1998 WL 690856 (N.D. Cal. Sept. 28, 1998). On
appeal, only the copyright claims are at issue.
 In analyzing whether Ets-Hokin had a valid copyright,
the court noted that, by establishing that the photos were derivative works,
the defendants could rebut the statutory presumption of validity that Ets-Hokin
enjoyed by virtue of holding a copyright registration. The court then held
that the product shots were derivative works, reasoning that the photos were
based on a preexisting work, namely, the Skyy vodka bottle. Having found that
"the Skyy bottle is clearly a preexisting work," the court further held that
the bottle's"trade dress (the blue bottle, the gold label, etc.) and copyrighted
material (the label and all non-utilitarian features of the bottle)" rendered
it a "protected and copyrighted work."
 Once Ets-Hokin's photos were determined to be
derivative of the vodka bottle, the court applied the standard applicable
to derivative works set forth in Entertainment Research Group, Inc. v.
Genesis Creative Group, Inc., 122 F.3d 1211, 1220-21 (9th Cir. 1997) [hereinafter
ERG]. Specifically, the court stated:
Because plaintiff's work is a
derivative work, to establish the validity of his copyright, he must show
both (1) that the differences between the two works are more than trivial,
i.e., that his photographs are "sufficiently original," and (2) that his copyright
will not interfere with Skyy's rights to create derivative works based upon
its own bottle.
 In its analysis of the photographs as derivative
works, the court found that Ets-Hokin did not raise a genuine issue of material
fact as to either prong of the ERG test, concluding that (1) the photos
were insufficiently original to warrant copyright because the differences
between the photos and the bottle were not "more than trivial"; and (2) a
copyright in the photos would interfere with Skyy's right to create works
based upon its own bottle.
STANDARD OF REVIEW
 We review de novo the district court's decision
to grant summary judgment. See ERG, 122 F.3d at 1216; Worth v. Selchow
& Righter Co., 827 F.2d 569, 571 (9th Cir. 1987) ("Summary judgments in
copyright infringement actions are reviewed de novo."). We likewise interpret
the Copyright Act de novo. See generally Bay Area Addiction Research &
Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999)
(standard of review for interpretation of a statute). Whether a particular
photograph is protected by copyright law is a mixed question of law and fact,
also subject to de novo review. Cf. Harper House, Inc. v. Thomas Nelson,
Inc., 889 F.2d 197, 201 (9th Cir. 1989) ("Issues involving the availability
and extent of copyright protection for Harper House's time management system
present mixed questions of law and fact" reviewed de novo) (citation omitted).
 In order to establish copyright infringement,
Ets-Hokin "must prove both valid ownership of the copyright and infringement
of that copyright by" the defendants. ERG, 122 F.3d at 1217. To address
Ets-Hokin's claim, we must first address whether his photographs are entitled
to copyright protection. Only if they are do we turn to the issue of infringement.
I. VALIDITY OF THE COPYRIGHT
 Skyy argues, in a nutshell, that the commercial
photographs of its vodka bottle are not worthy of copyright protection. We
disagree. The essence of copyrightability is originality of artistic, creative
expression. Given the low threshold for originality under the Copyright Act,
as well as the longstanding and consistent body of case law holding that photographs
generally satisfy this minimal standard, we conclude that Ets-Hokin's product
shots of the Skyy vodka bottle are original works of authorship entitled to
copyright protection. The district court erred in analyzing copyright protection
under the rubric of derivative works. To put our holding in context, we summarize
the historical treatment of photographs both as artistic expression and as
the proper subject of copyright protection.
A. History of Photography as Copyrightable Artistic Expression
 It is well recognized that photography is a form of artistic expression,
requiring numerous artistic judgments. As one photojournalist wrote,
[u]p to and including the instant of exposure, the photographer is working
in an undeniably subjective way. By his choice of technical approach (which
is a tool of emotional control), by his selection of the subject matter
to be held within the confines of his negative area, and by his decision
as to the exact, climatic [sic] instant of exposure, he is blending the
variables of interpretation into an emotional whole which will be a basis
for the formation of opinions by the viewing public.
W. Eugene Smith, Photographic Journalism, PHOTO
NOTES, June 1948, at 4, reprinted in PHOTOGRAPHERS
ON PHOTOGRAPHY 103, 104 (Nathan
Lyons ed., 1966). But these judgments are not the only ones. As the well-known
photographer Edward Weston wrote,
[b]y varying the position of his camera, his camera angle, or
the focal length of his lens, the photographer can achieve an infinite
number of varied compositions with a single, stationary subject. By changing
the light on the subject, or by using a color filter, any or all of the
values in the subject can be altered. By varying the length of exposure,
the kind of emulsion, the method of developing, the photographer can vary
the registering of relative values in the negative. And the relative values
as registered in the negative can be further modified by allowing more or
less light to affect certain parts of the image in printing. Thus, within
the limits of his medium, without resorting to any method of control that
is not photographic (i.e., of an optical or chemical nature), the photographer
can depart from literal recording to whatever extent he chooses.
Edward Weston, Seeing Photographically, 9 COMPLETE
PHOTOGRAPHER 3200, 3203 (William D. Morgan ed., 1943),
reprinted in PHOTOGRAPHERS ON
PHOTOGRAPHY, supra, at 159, 161.
 Courts as well as photographers have recognized
the artistic nature of photography. Indeed, the idea that photography is art
deserving protection reflects a longstanding view of Anglo-American law. Under
English law, photographs first received statutory copyright protection under
an 1862 law that granted the author of "every original painting, drawing and
photograph . . . the sole and exclusive right of copying, engraving, reproducing
and multiplying . . . such photograph, and the negative thereof." See
Keith Lupton, Photographs and the Concept of Originality in Copyright Law,
10(9) EUR. INTELL. PROP.
REV. 257, 257 & n.7 (1988) (quoting the Fine Arts Copyright
Act 1862 § 1).
 Three years later, President Abraham Lincoln signed
into law a similar statute that made "photographs and the negatives thereof"
copyrightable.[n3] Act of March
3, 1865, 13 Stat. 540. The impetus for this act was likely due in part to
the "prominent role [of photos] in bringing the horrors of the Civil War to
the public." 1 WILLIAM PATRY,
COPYRIGHT LAW & PRACTICE
244 (1996). In fact, many photographers, most notably Matthew Brady, attained
notoriety for their graphic depictions of battle on the front lines; Brady's
photographs were some of the first registered for copyright. Id. at
248 n.560. Some twenty years later, the Supreme Court held the statute constitutional.
See Burrow-Giles Lithographic Co. v. Sarony, 111
U.S. 53, 58 (1884) ("[T]he Constitution is broad enough to cover an act
authorizing copyright of photographs, so far as they are representatives of
original intellectual conceptions of the author.").
 Burrow-Giles, a landmark case involving
a photograph of Oscar Wilde, is the first of a line of cases establishing
that photography entails creative expression warranting copyright protection,
that photography is "an art," and that an individual photograph may be a "work
of art." Id. at 58, 60. Of particular import here, the Court held that
several specific decisions made by the photographer rendered his photograph"an
original work of art . . . of a class of inventions for which the Constitution
intended that Congress should secure to him the exclusive right to use, publish
and sell, as it has done . . . ." Id. at 60. Decisions rendering the
photograph a protectable "intellectual invention" included: the posing and
arrangement of Wilde "so as to present graceful outlines"; the selection and
arrangement of background and accessories; the arrangement and disposition
of light and shade; and the evocation of the desired expression. Id.
Courts today continue to hold that such decisions by the photographer--or,
more precisely, the elements of photographs that result from these decisions--are
worthy of copyright protection. See, e.g., Rogers v. Koons, 960 F.2d
301, 307 (2d Cir. 1992) ("Elements of originality in a photograph may include
posing the subjects, lighting, angle, selection of film and camera, evoking
the desired expression, and almost any other variant involved.") (citations
omitted); Eastern America Trio Prods., Inc. v. Tang Elec. Corp., 97
F. Supp. 2d 395, 417 (S.D.N.Y. 2000).
 Twenty years after Burrow-Giles, the Supreme Court
laid to rest the notion that use of a picture in advertising would preclude
its copyrightability. See Bleistein v. Donaldson Lithographic Co.,
239 (1903). Writing for the Court, Justice Holmes stated:
Certainly works are not the less connected with the fine arts because
their pictorial quality attracts the crowd and therefore gives them a real
use--if use means to increase trade and to help to make money. A picture is
none the less a picture and none the less a subject of copyright that it is
used for an advertisement. And if pictures may be used to advertise soap,
or the theatre, or monthly magazines, as they are, they may be used to advertise
Id. at 251. Thus, whether a photograph is used in (or intended for)
a museum, an art gallery, a mural, a magazine, or an advertisement does not
bear on its copyrightability. We have ourselves rejected the notion that copyright
law treats works intended for advertising differently from other works:
It is true that a pictorial work is no less a subject of copyright
protection because it is used to sell goods. Fabrica attempts to make it appear,
however, that advertising materials constitute some separate and distinct
subject matter of copyright. That is not and has never been the law. Items
otherwise copyrightable will not be denied copyright simply because of their
advertising purpose, but they do not gain any greater protection than non-advertising
Fabrica Inc. v. El Dorado Corp., 697 F.2d 890, 894 (9th Cir. 1983)
(internal quotations and citation omitted). See also National Cloak & Suit
Co. v. Kaufman, 189 F. 215, 217 (M.D. Penn. 1911) (finding copyrightable
"pictorial illustrations" of "ladies attired in the latest . . . styles" that
appeared in a catalog). Instead of looking to the intended or actual use of
the photograph, or considering whether its subject matter has commercial value,
we evaluate whether it has copyrightable elements.
 Cases after Burrow-Giles and Bleistein
confirmed that a photograph of an object is copyrightable. See, e.g., Rogers,
960 F.2d at 307 (2d Cir. 1992) (photograph of puppies); Eastern America
Trio, 97 F. Supp. 2d at 417 (photographs of "common industrial items"
including electrical products); Pagano v. Chas. Beseler Co., 234 F.
963, 964 (S.D.N.Y. 1916) (photograph of a scene including the New York Public
 These are the foundations of copyright applicable
B. Contemporary Standards for Copyright Protection of Photographs
 Under the copyright laws, Ets-Hokin's certificate
of registration from the U.S. Copyright Office entitled him to a "rebuttable
presumption of originality" with respect to the photographs at issue. Smith
v. Jackson, 84 F.3d 1213, 1219 (9th Cir. 1996) (quoting North Coast
Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992)); 17
U.S.C. § 410(c). In moving for summary judgment, the defendants thus initially
had the burden of showing the invalidity of Ets-Hokin's copyright:
Under the copyright laws, the registration of a copy-right certificate
constitutes prima facie evidence of the validity of a copyright in a judicial
proceeding commenced within five years of the copyright's first publication.
A certificate of copyright registration, therefore, shifts to the defendant
the burden to prove the invalidity of the plaintiff's copyrights. An accused
infringer can rebut this presumption of validity, however. To rebut the presumption,
an infringement defendant must simply offer some evidence or proof to dispute
or deny the plaintiff's prima facie case of infringement.
ERG, 122 F.3d at 1217 (citations and internal quotations omitted).
See also Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 201
(9th Cir. 1989) (stating that the presumption "shifts the burden of proof
to the defendants to demonstrate why plaintiff's organizers are not copyrightable.").
In short, to overcome the presumption of validity, defendants must demonstrate
why the photographs are not copyrightable. This they have failed to do, primarily
because the degree of originality required for copyrightability is minimal.[n4]
Addressing the threshold for copyrightability, in Feist Publications, Inc.
v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991), the Supreme
Court held that "[t]he sine qua non of copyright[ability] is originality"
and that "[o]riginal, as the term is used in copyright, means only that the
work was independently created by the author (as opposed to copied from other
works), and that it possesses at least some minimal degree of creativity."
Id. at 345 (citation omitted). Here there is no dispute over the independent
creation of the photographs--they are the result of Ets-Hokin's work alone--so
what we must decide is whether the photographs of Skyy's vodka bottle possess
"at least some minimal degree of creativity."
 Feist, which involved listings in a telephone
directory, described the requisite degree of creativity as"extremely low;
even a slight amount will suffice. The vast majority of works make the grade
quite easily, as they possess some creative spark, `no matter how crude, humble
or obvious' it might be." Id. (citation omitted). When this articulation
of the minimal threshold for copyright protection is combined with the minimal
standard of originality required for photographic works, the result is that
even the slightest artistic touch will meet the originality test for a photograph.
 In assessing the "creative spark" of a photograph,
we are reminded of Judge Learned Hand's comment that "no photograph, however
simple, can be unaffected by the personal influence of the author." Jewelers'
Circular Pub. Co. v. Keystone Pub. Co., 274 F. 932, 934 (S.D.N.Y. 1921).
This approach, according to a leading treatise in the copyright area, "has
become the prevailing view," and as a result, "almost any[ ] photograph may
claim the necessary originality to support a copyright merely by virtue of
the photographers' [sic] personal choice of subject matter, angle of photograph,
lighting, and determination of the precise time when the photograph is to
be taken." 1 MELVIN B. NIMMER
& DAVID NIMMER, NIMMER
ON COPYRIGHT § 2.08[E], at
2-130 (1999) [hereinafter NIMMER]. This circuit is
among the majority of courts to have adopted this view. Thus, we have noted
that"courts have recognized repeatedly that the creative decisions involved
in producing a photograph may render it sufficiently original to be copyrightable
and `have carefully delineated selection of subject, posture, background,
lighting, and perhaps even perspective alone as protectable elements of a
photographer's work.' " Los Angeles News Serv. v. Tullo, 973 F.2d 791,
794 (9th Cir. 1992) (quoting United States v. Hamilton, 583 F.2d 448,
452 (9th Cir. 1978)).
 In view of the low threshold for the creativity
element, and given that the types of decisions Ets-Hokin made about lighting,
shading, angle, background, and so forth have been recognized as sufficient
to convey copyright protection, we have no difficulty in concluding that the
defendants have not met their burden of showing the invalidity of Ets-Hokin's
copyright, and that Ets-Hokin's product shots are sufficiently creative, and
thus sufficiently original, to merit copyright protection. See also Bleistein,
188 U.S. at 250 ("The least pretentious picture has more originality in it
than directories and the like, which may be copyrighted."). Finally, although
Ets-Hokin took photos that undoubtedly resemble many other product shots of
the bottle--straight-on, centered, with back lighting so that the word "Skyy"
on the bottle is clear--the potential for such similarity does not strip his
work of the modicum of originality necessary for copyrightability. Indeed,
the fact that two original photographs of the same object may appear similar
does not eviscerate their originality or negate their copyrightability. See
Feist, 499 U.S. at 345-46 ("Originality does not signify novelty; a work
may be original even though it closely resembles other works so long as the
similarity is fortuitous, not the result of copying. To illustrate, assume
that two poets, each ignorant of the other, compose identical poems. Neither
work is novel, yet both are original and, hence, copyrightable.").
 Having concluded that Ets-Hokin's photos are entitled
to copyright protection, we leave to the district court the scope of Ets-Hokin's
copyright in the photographs vis-a-vis the claimed infringement.
C. Derivative Copyright
 We next address the issue of derivative copyright
because the district court analyzed the photographs as derivative works. For
the reasons set forth below, this is not a derivative works case.
 The Copyright Act defines a "derivative work"
as "a work based upon one or more preexisting works." [n5]
Copyright Act of 1976 § 101, 90 Stat. 2541, 2542, 17
U.S.C. § 101. The district court held, and Skyy argues, that Ets-Hokin's
photographs are derivative works. The court reasoned that the photographs
fell within the statutory definition because they were based on or derived
from the Skyy vodka bottle, which the court concluded, without explanation,
qualified as an original "preexisting work." After determining that"an original
work must be protected, copyrighted or protectable in order for a subsequent
work to be `derivative,' " the district court concluded as follows:
Here, the Skyy bottle is clearly a preexisting work by the statutory
definition. In addition, the bottle includes its trade dress (the blue bottle,
gold label, etc.) and copyrighted material (the label and all non-utilitarian
features of the bottle) and is thus a protected and copyrighted work.
 We have never previously addressed whether a photograph
can be a derivative work, and specifically, whether a derivative work must
be based upon a copyrightable work. In a colloquial sense, of course, a photograph
is derived from the object that is its subject matter. As such, one teacher
of photography wrote of a photo as being an image "derived from . . . the
object pictured." Henry Holmes Smith, Photography In Our Time, in KALAMAZOO
ART CTR., THREE
PHOTOGRAPHERS (catalog of exhibition) (Feb. 1961),
reprinted in PHOTOGRAPHERS ON
PHOTOGRAPHY, supra, at 99, 102. But simply because
photographs are in this colloquial sense "derived" from their subject matter,
it does not necessarily follow that they are derivative works under copyright
 As discussed below, the district court erred in
adopting the derivative work framework for two reasons: (1) a derivative work
must be based on a preexisting work that is copyrightable; and (2) the Skyy
vodka bottle is a utilitarian object that is not protected by copyright.
1. Preexisting Work Must Be Copyrightable
 Under the Copyright Act, a work is not a "derivative
work" unless it is "based upon one or more preexisting works" and, in order
to qualify as a "preexisting work," the underlying work must be copyrightable.[n6]
The Act does not make this point explicitly, nor does it define "work," but
a reading of the statute as a whole and its legislative history compel this
 Turning first to the statute, several provisions
point to the requirement for the underlying, "preexisting work " to be copyrightable.
Under section 106, the "owner of copyright" has "exclusive rights" to "prepare
derivative works based upon the copyrighted work." Id.
§ 106(2) (emphasis added). The statute thus presupposes that the preexisting
work--that is, the work that underlies the derivative work--is copyrightable.
Other provisions buttress this reading.
 Under section 102, titled "[s]ubject matter of
copyright: [i]n general," copyright protection "subsists . . . in original
works of authorship." 17
U.S.C. § 102(a). Such "original works of authorship" include not only
underlying (preexisting) works but also derivative works and compilations.
§ 103(a) ("The subject matter of copyright . . . includes compilations
and derivative works"). It is significant that the term "works" is used in
defining the "subject matter of copyright" and that all of these types of
works are subject to copyright.
 It is also significant that the Copyright Act
specifically limits the scope of copyright protection for derivative works
(and compilations). Under section 103, copyright protection "for a work employing
preexisting material in which copyright subsists does not extend to any part
of the work in which such material has been used unlawfully." Id.§
103(a). It would make little sense to specify that a derivative work's
copyright does not extend to any part of that work using "preexisting material
in which copyright subsists" if that material "has been used unlawfully" unless
the material is itself copyrightable.[n7]
 A comparison of how the Copyright Act defines
"derivative works" and "compilations" provides an explanation for the use
of the term "preexisting material" in section 103 as well as further support
for the proposition that the underlying "preexisting work" must be copyrightable.
A derivative work, as noted above, is defined as "a work based upon one or
more preexisting works," whereas a "compilation" is defined as "a work
formed by the collection and assembling of preexisting materials or
of data . . . ." Id.§ 101 (emphasis added). By specifying that a derivative
work is based upon a"preexisting work"--as opposed to "preexisting materials
or. . . data," the basis for a compilation--Congress has set forth a distinction
with a difference, a distinction to which we must give meaning. We agree with
Nimmer that "[t]he reference to `preexisting works' in this definition, as
compared with the reference to `preexisting materials' in the definition of
a`compilation' implies that a derivative work, unlike a compilation, must
incorporate that which itself is the subject of copyright." 1 NIMMER
§ 3.01, at 3-3 n.10.[n8] This
implication becomes even clearer when one considers that the term "work "
or "works" is used throughout the Copyright Act to refer to the"subject matter"
that the act is designed to protect: "original works of authorship." See
id. § 3.06, at 3-34.23 ("The pre-existing work or works upon which a given
derivative or collective work is based must be capable of copyright in the
sense that it must constitute an original work of authorship within the meaning
of Section 102.").
 These statutory sections, read together,[n9]
and coupled with the fact that the term "derivative work" appears only in
the Copyright Act, and not, for example, in the patent or trademark statutes,
indicate that for a work to qualify as a derivative work, the work from which
it derives must itself be within the ambit of copyright.
 We view the statute's meaning as plain on its
face, but to the extent there is any ambiguity, the legislative history also
confirms our reading of the Act. A House report accompanying the Copyright
Act states that "[a] derivative work . . . requires a process of recasting,
transforming, or adapting one or more preexisting works; the preexisting
work must come within the general subject matter of copyright set forth in
section 102, regardless of whether it is or was ever copyrighted." H.R.
REP. NO. 94-1476, at 57 (1976),
reprinted in 1976 U.S.C.C.A.N. 5659, 5670 (emphasis added and internal quotations
omitted). See also Phillip Edward Page, The Works: Distinguishing
Derivative Creations Under Copyright, 5 CARDOZO
ARTS & ENT. L.J. 415, 418 (1986)
("To be derivative, a work must be `based upon' a preexisting work which could
itself come within the general subject matter of copyright.").
 We need only comment briefly on the district court's
assertion that the bottle's trade dress--its blue color, gold label, etc.--renders
the bottle a protected work. Although it is true that trade dress may arguably
afford Skyy some intellectual property protection with regard to its bottle[n10]
--an issue we need not decide here--that protection is irrelevant to deciding
whether the bottle is a preexisting work under the Copyright Act.[n11]
As noted above, this concept is one peculiar to the copyright law, and its
scope must be defined within the contours of that law. The Copyright Act speaks
to copyright, not trade dress, and its subject matter, as defined in section
102, is "original works of authorship."
2. The Bottle Is Not Copyrightable
 Recognizing that the preexisting work must be
copyrightable, we turn then to the so-called preexisting work--the Skyy vodka
bottle. The district court treated the bottle as a whole as the underlying,
"preexisting work," even though the bottle as a whole is a utilitarian object
that cannot be copyrighted.
 Under the Copyright Act, the design of a useful
article, such as a bottle, is not protected unless the design includes features
that exist separately from utilitarian ones:
Such works shall include works of artistic craftsmanship insofar
as their form but not their mechanical or utilitarian aspects are concerned;
the design of a useful article, as defined in this section, shall be considered
a pictorial, graphic or sculptural work only if, and only to the extent that,
such design incorporates pictorial, graphic, or sculptural features that can
be identified separately from, and are capable of existing independently of,
the utilitarian aspects of the article.
17 U.S.C. §101. As Nimmer notes, "[a] work is a `useful article,' and therefore
denied copyright for its shape as such, if it has `an intrinsic utilitarian
function,' even though it may have other functions which are not utilitarian."
1 NIMMER § 2.08[B], at 2-97 (footnotes omitted).
In this case, the district court did not identify any artistic features of
the bottle that are separable from its utilitarian ones. We also find none.
Although it is "difficult [to] determin[e] when pictorial, graphic, or sculptural
features `can be identified separately from, and are capable of existing independently
of, the utilitarian aspects of the article,' " Id. at 2-98, we conclude
that the bottle has no "artistic features [that] can be identified separately
and [that] are capable of existing independently as a work of art." Fabrica,
697 F.2d at 893.[n12]
 The Skyy vodka bottle, although attractive, has
no special design or other features that could exist independently as a work
of art. It is essentially a functional bottle without a distinctive shape.
 Turning next to the bottle's label, which the
district court also cited in part in categorizing Ets-Hokin's photos as derivative
works, we note that "[a] claim to copyright cannot be registered in a print
or label consisting solely of trademark subject matter and lacking copyrightable
matter." 37 C.F.R. § 202.10(b). Although a label's "graphical illustrations"
are normally copyrightable,[n13]
"textual matter" is not--at least not unless the text "aid[s] or augment[s]"
an accompanying graphical illustration. 1 NIMMER §
2.08[G], at 2-136.[n14]
The label on Skyy's vodka bottle consists only of text and does not include
any pictorial illustrations.
 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. As such,
the photos Ets-Hokin took of the bottle cannot be derivative works.[n15]
The district court erred in so concluding.
 Having determined that Ets-Hokin's photos are
copyrightable works, we move to the question of infringement. Ets-Hokin claims
infringement with regard to Skyy's use of his product shots and with regard
to solicitation and use of shots produced by other photographers who, Ets-Hokin
contends, unlawfully mimicked his work.[n16]
This issue, which the district court did not reach in view of its holding
that Ets-Hokin failed to establish the validity of his copyright, should be
addressed in the first instance by that court. Although Ets-Hokin has won
the battle of copyrightability, the winner of the infringement war has yet
to be determined.
 We note that Skyy has invoked
the doctrines of merger and scenes a faire. Under the merger doctrine, courts
will not protect a copyrighted work from infringement if the idea underlying
the copyrighted work can be expressed in only one way, lest there be a monopoly
on the underlying idea. See CDN Inc. v. Kapes, 197 F.3d 1256, 1261
(9th Cir. 1999). In such an instance, it is said that the work's idea and
expression "merge." Under the related doctrine of scenes a faire, courts will
not protect a copyrighted work from infringement if the expression embodied
in the work necessarily flows from a commonplace idea;[n17]
like merger, the rationale is that there should be no monopoly on the underlying
unprotectable idea. See Landsberg v. Scrabble Crossword Game Players, Inc.,
736 F.2d 485, 489 (9th Cir. 1984); See v. Durang, 711 F.2d 141, 143
(9th Cir. 1983) (per curiam). Although there is some disagreement among courts
as to whether these two doctrines figure into the issue of copyrightability
or are more properly defenses to infringement, see Mason v. Montgomery
Data, Inc., 967 F.2d 135, 138 n.5 (5th Cir. 1992) (noting a split as to
the doctrine of merger); 4 NIMMER § 13.03[B], at
13-69 - 13-70 & nn.164, 165 (same); id. at § 13.03[B], at 13-73
n.182 (noting a split as to the doctrine of scenes a faire), we hold that
they are defenses to infringement. Accord Kregos v. Associated Press,
937 F.2d 700, 705 (2d Cir. 1991) (holding that the merger doctrine relates
to infringement, not copyrightability); Reed-Union Corp. v. Turtle Wax,
Inc., 77 F.3d 909, 914 (7th Cir. 1996) (explaining why the doctrine of
scenes a faire is separate from the validity of a copyright); see also
4 NIMMER §§ 13.03[B], at 13-69 - 13-70, 13.03[B],
at 13-73. Accordingly, these defenses should be addressed in the first instance
by the district court in the context of the infringement claims.
 REVERSED AND REMANDED.
D.W. NELSON, 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-Hokin's
photographs are original. By the same token, however, so are the other allegedly
infringing photographs of Skyy's vodka bottle.[n1]
These subse quent photographs are 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.[n2]
Furthermore, as a matter of law, legal defenses such as scenes a fair and
the merger doctrine prevent Ets-Hokin from prevailing on his copyright infringement
 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,
fictionalization, 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 protectible. 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 1991) (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 be 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. 1997) (Martin, C.J., dissenting). Martin's analysis
mirrors the analysis in this case and in derivative works cases in other circuits.
[n3] 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.