In 1979, “world-renowned wildlife artist, illustrator, photographer, researcher, and author” Pieter Folkens illustrated an underwater scene of two dolphins crossing each other. The black and white, pen and ink depiction did not feature other subjects and was based on photographs of two dolphins posed by animal trainers. It was titled “Two Tursiops Truncatus” (also known as “Two Dolphins”) and had copyright registration under VA 31-890.

Over 30 years later, Robert Wyland allegedly created an unauthorized copy of Two Dolphins in an illustration titled “Life in the Living Sea.” The colorful depiction was an underwater scene featuring three dolphins–two of which were crossing each other–various fish, and aquatic plants. Wyalnd created and sold prints of Life in the Living Sea, amounting to $4,195,250 in sales according to Folkens. Folkens also claimed that the Wyalnd was displaying the infringing work in galleries around the country. Folkens stated that he learned about Life in the Living Sea in 2013, informed Wyland about the infringement  in 2014, and filed a lawsuit thereafter.

The question originally presented to the District Court for the Eastern District of California and later the Ninth Circuit Court of Appeals was whether two dolphins crossing one another underwater is a protectable element under the Ninth Circuit’s test for substantial similarity. Both courts answered no, holding that the depiction of two dolphins crossing underwater is an idea found in nature and therefore not a protectable element.

The court of appeals first reviewed the district court’s foundational findings. The district court held that this particular depiction was not protectable under copyright because “the cross-dolphin pose featured in both works results from dolphin physiology and behavior since dolphins are social animals, they live and travel in groups, and for these reasons, [dolphins] are commonly depicted swimming close together.” The district court added that Folkens had not identified any elements that were not commonplace or based on the idea of two swimming dolphins. As a result, the district court concluded that no reasonable jury could find substantial similarity as the point of similarity, the dolphins crossing, was not protectable.

A plaintiff can establish unauthorized copying by showing that the defendant had access to the plaintiff’s work and that the two works are substantially similar. Here, Wyland does not contest access but instead argues that the works are not substantially similar as a matter of law. The court of appeals revisited the question of whether the works were substantially similar enough to reach unauthorized copying of protectable elements. Although the Ninth Circuit usually applies a two-part, extrinsic and instrict test to determine substantially similarity, only the extrinsic test is considered on summary judgment. The extrinsic test is “an objective comparison of specific expressive elements focusing on articulable similarities between the two works.” The Ninth Circuit specified that this test only applies to the protected elements of the copyrighted work, therefore making it essential to first distinguish between the protected and unprotected materials.  

Thus, the Ninth Circuit considered whether the similar expression in both works, the dolphins crossing, was protectable as the next step in the substantial similarity analysis. The appellate court stated that the animal trainer guided pose was not novel and did not entitle Folkens to summary judgment. The appellate court reiterated its holding in Satava, a similar case about glass sculptures of jellyfish. In Satava, the Ninth Circuit explained that artists cannot use copyright law to claim ownership over ideas “first expressed by nature.” The appellate court clarified that an artist may obtain copyright by “varying the background, lighting, perspective, animal pose, animal attitude, and animal coat and texture” but that this will only earn thin protection. The appellate court adds that allowing artists to claim a monopoly over natural scenes would run contrary to the basic idea of copyright law, which is to protect and encourage unique expressions.

As such, Folken has a narrow copyright “in his expression of the two dolphins in dark water, with ripples of light on one dolphin in black and white.” However, these protectable aspects of Folken’s dolphins are not substantially similar to Wyland’s depiction of dolphins which “are in color, do not show light ripples off the body of a dolphin, and . . . cross at different angles”.

The Ninth Circuit concludes that “protectable expression must be more specific than just the natural element of crossing dolphins” such as “their exact positioning, the stippled light, the black and white depiction, and other specific and unique elements of expression.” Thus, the Ninth Circuit affirmed the district court’s grant of summary judgment, because “the depictions of two dolphins crossing here share no similarities other than in their non-protectable elements . . .”

Michael Risch, Can You Copyright A Pose? (Written Description)

Kelsey Farish, Posing some difficult questions: the COPYKAT investigates (The 1709 Blog)

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