Ninth Circuit: Dolphin Crossing Not Copyright Protectable

Advertising Law

An idea that is first found in nature cannot be the subject of copyright protection, the U.S. Court of Appeals, Ninth Circuit explained in a decision involving the depiction of two dolphins crossing underwater.

In 1979, Peter A. Folkens, a self-described “world renowned wildlife artist,” created a pen and ink illustration of two dolphins crossing each other underwater, one swimming vertically and the other swimming horizontally. No other subjects appear in the black and white illustration, in which he holds at least one copyright registration.

Folkens sued Robert Wyland, who created the painting “Life in the Living Sea,” depicting an underwater scene that includes an image of two dolphins crossing underwater. He alleged that Wyland and his galleries created enough prints to make more than $4 million in sales.

While Folkens conceded that the idea of dolphins swimming underwater is not protected, he argued that his unique expression of that idea was protected, in part because the dolphins were not exhibiting behavior shown in nature. His drawing was based on photos taken by professional animal trainers who posed the dolphins in an enclosed environment, he told the court.

The pose was a red herring, Wyland countered, because animal trainers can pose animals to capture positions that naturally occur in the wild. A district court judge agreed, granting summary judgment in favor of Wyland.

While the Ninth Circuit recognized that summary judgment is not highly favored on questions of substantial similarity in copyright disputes, “it is appropriate if we can conclude that ‘no reasonable juror could find substantial similarity of ideas and expression,’” the court wrote.

Applying the extrinsic test—an objective comparison of specific expressive elements focusing on articulable similarities between the two works—the federal appellate panel determined that the works were not substantially similar beyond the fact they each had a pair of crossing dolphins, which was not a protectable element.

The court agreed with the defendant that posing the animals did not dictate whether the image could be found in nature and reaffirmed that ideas first expressed in nature are “the common heritage of humankind, and no artists may use copyright law to prevent others from depicting them.”

Examples of nonprotectable depictions include ants marching in a straight line, geese flying in a “V” formation as they migrate and a mother duck being followed by her ducklings out of a pond.

“The basic idea of copyright law is to protect unique expression, and thereby to encourage expression; it is not to give to the first artist showing what has been depicted by nature a monopoly power to bar others from depicting such a natural scene,” the panel said. “We conclude that a depiction of two dolphins crossing under sea, one in a vertical posture and the other in a horizontal posture, is an idea first expressed in nature and as such is within the common heritage of humankind. No artist may use copyright law to prevent others from depicting this ecological idea.”

Folkens held a “thin” copyright in his expression of two dolphins in black and white ink, the court said, which was not infringed by the depiction of Wyland’s colorful painting of two dolphins crossing at different angles.

“While Folkens tries to make the argument that Wyland copied his expression of two dolphins swimming, it is clear from precedent that protectable expression must be more specific than just the natural element of crossing dolphins; here, it necessarily includes their exact positioning, the stippled light, the black and white depiction, and other specific and unique elements of expression,” the panel wrote while granting summary judgment.

To read the opinion in Folkens v. Wyland Worldwide, LLC, click here.

Why it matters: Analyzing whether there was substantial similarity between the works under the extrinsic test, the Ninth Circuit made clear that ideas expressed in nature are not protectable by copyright law. “We note … that a collection of unprotectable elements—pose, attitude, gesture, muscle structure, facial expression, coat, and texture—may earn ‘thin copyright’ protection that extends to situations where many parts of the work are present in another work,” the panel wrote. “But when, as here, the only areas of commonality are elements first found in nature, expressing ideas that nature has already expressed for all, a court need not permit the case to go to a trier of fact.”



pursuant to New York DR 2-101(f)

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