The US Court of Appeals for the Ninth Circuit examined the extent to which copyright protection can be granted in the expression of an idea based on elements first found in nature, and finding only a “thin copyright” in the plaintiff’s work, affirmed the district court’s summary judgment in favor of the defendant. Peter A. Folkens v. Wyland Worldwide, LLC, et al., Case No. 16-15882 (9th Cir., Feb. 2, 2018) (Gould, J). 

In 2014, wildlife artist Peter A. Folkens sued Robert T. Wyland and his galleries (together, Wyland) for copyright infringement, alleging that Wyland’s 2011 painting “Life in the Living Sea,” depicting an underwater scene consisting of various fish, aquatic plants and three dolphins—two of which are crossing—infringed Folkens’s 1979 pen and ink illustration depicting two dolphins crossing each other as one dolphin swims horizontally and the other vertically. After applying the Ninth Circuit’s extrinsic test of substantial similarity to assess copyright infringement, the district court granted summary judgment for Wyland. The court found that the main similarity between “Life and the Living Sea” and Folkens’s “Two Dolphins” illustration was the depiction of two crossing dolphins, and that the idea of dolphins swimming underwater close together in a manner resulting from “dolphin physiology and behavior” is not a protectable element under copyright.

It is well settled that copyright law does not protect an idea per se, but instead protects the manifestation or expression of an idea. Therefore, on appeal, Folkens argued that his depiction of the crossing dolphins was a unique expression of the idea of dolphins swimming underwater. To bolster his claims, Folkens alleged that the dolphins in his illustration were posed by professional animal trainers in an enclosed environment and did not appear in nature in such a configuration.

The Ninth Circuit explained that proving copyright infringement requires a plaintiff to demonstrate (1) ownership of a valid copyright and (2) copying of the constituent elements of the work that are original. Since Folkens’s ownership of the copyright was not in dispute, on appeal the Court only had to determine whether the two works were substantially similar so as to constitute improper copying by the defendants.

Typically, summary judgment is not favored to decide questions of substantial similarity in copyright cases unless “no reasonable juror could find substantial similarity of ideas and expression.” Here, the Ninth Circuit relied on an objective extrinsic test, which focuses on articulable similarities between specific expressive elements in the works at issue. Because the parties agreed that the element of similarity between the works was the two dolphins crossing, the Court’s key inquiry became whether the crossing of the dolphins was a protectable element under copyright law.

In its analysis, the Ninth Circuit first dismissed the idea that the positioning of the dolphins by a trainer removed the possibility of summary judgment, noting that the assistance of animal trainers “does not in itself dictate whether the pose could be found in nature.” Citing its own well-known copyright decision in Satava v. Lowry (pertaining to glass jellyfish sculptures), the Court reaffirmed that ideas first expressed in nature are the “common heritage of human kind,” and copyright law may not be used by one artist to prevent another from depicting such ideas as expressed by nature. At the same time, however, the Court was careful not to foreclose all copyright protection in the depiction of live animals, noting that an artist’s original expression and contributions, such as lighting, perspective and background, may earn copyright protection, but only “thin” or “narrow” protection. 

The Ninth Circuit determined that although Folkens did hold such a thin copyright in his expression of the two dolphins in dark water with certain light ripples, those protectable elements were not substantially similar to Wyland’s crossing dolphins, and thus Wyland’s work was not an infringement. Since the crossing of dolphins under the sea is an “idea first expressed in nature,” the Court explained that the only similar element of the works—the positioning of the dolphins—was not protectable under copyright law, and affirmed the district court’s grant of summary judgment in favor of Wyland.