9th Circuit rules Wyland painting doesn't infringe on other artist's copyright

By Angela Underwood | Feb 15, 2018

A federal appeals panel has ruled there was no copyright infringement in a case involving two works of art created 32 years apart.

SAN FRANCISCO — A federal appeals panel has ruled there was no copyright infringement in a case involving two works of art created 32 years apart. 

Judges Ronald M. Gould and Mary H. Murguia James E. Gritzner ruled Feb. 2 the district court properly granted summary judgment for Peter A. Folken's complaint against Robert T. Wyland alleging copyright infringement of his 1979 creation of “Two Dolphins." The district court had found Wyland’s art is not a protectable element since the idea is first found in nature rather than Wyland’s creative mind, according to background information in the appeals court opinion.

Authoring judge Gould begins the opinion citing Satava v. Lowry 2003 to explain the “thin copyright” protection most often seen in two similar pieces of art, which a court does not have to fact test when the cohesive elements are derived from nature first. Though Wyland’s 2017 “Life in the Living Sea” painting has dolphins crossing it, the painting is a color painting with three dolphins, unlike Wyland’s black-and-white pen-and-ink art with two dolphins.

The district court used the 9th Circuit’s “extrinsic test of substantial similarity” between the two cross-dolphin works -- "Two Dolphins" that had one crossing upright and the other horizontally -- to determine the alleged infringement that Folken, who calls himself a world-renowned wildlife researcher, photographer, author and artist, said Wyland made more than $4 million from.

Citing Satava and the behavior of the social animals, Gould explained “the district court concluded that ‘this idea of a dolphin swimming underwater is not a protectable element’ because natural positioning and physiology are not protectable under Ninth Circuit precedent,” according to the appeal.

Gould detailed how in Satava, the copyright infringement case based on a life-like glass-in-glass jellyfish sculpture, the 9th Circuit was also asked to rule if a district court wrongly ordered the defendant from producing similar rising jellyfish sculptures.

“We reasoned that the plaintiff could not prevent others from depicting jellyfish within a clear outer layer of glass because that was an appropriate setting for an aquatic animal and he could not prevent others from depicting jellyfish with tendril-like tentacles or rounded bells because many jellyfish possess those parts,” Gould wrote in the appeal.

Gould noted like Satava, that for a copyright infringement claim to subsist summary judgment under the extrinsic test “protectable elements could not be ideas expressed in nature subject to a thin copyright that may extend only to the pose, attitude, gesture, muscle structure, facial expression, coat, or texture of the animal."

“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,” Gould wrote.

Furthermore, Gould explained that the panel of judges "hold that under the circumstance of this case, the district court did not err by granting summary judgment for Defendants because the similar element of Two Dolphins and Life in the Living Sea, two dolphins crossing one another, one vertical and the other horizontal, is not protectable and the other particularities of the scene depicted are not the same."

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