Ninth Circuit Holds Copyright In Drawing Of Dolphins Not Infringed, Even If Drawing Copied
On February 2, 2018, the United States Court of Appeals for the Ninth Circuit affirmed a district court’s ruling that even if a gallery owner had copied an artist’s drawing of two dolphins, the copied elements were unprotectable “ideas that nature has already expressed for all.” Folkens v. Wyland Worldwide, No. 16-15882 (9th Cir. Feb. 2, 2018).
Plaintiff Pieter A. Folkens made a black-and-white pen-and-ink drawing of two dolphins, one swimming horizontally and one vertically across each other. He alleged that he based the drawing on photos that “were posed by professional animal trainers in an enclosed environment,” and that defendant Wyland Worldwide had copied his drawing when creating its painting entitled “Life in the Living Sea,” from which, he alleged, Wyland had made more than $4,000,000 in sales.
“Life in the Living Sea” is a color painting that shows two dolphins crossing as in Folkens’s drawing, but also shows another dolphin, various fish, and aquatic plants. The parties agreed that the element of similarity between the two works was the two dolphins crossing.
The Ninth Circuit held that this element was not protectable by copyright because it was a “naturally occurring element.” The court explained that “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 court found that even if the element was created by professional trainers as Folkens alleged, that fact alone did not render the element protectable: “the fact that a pose can be achieved with the assistance of animal trainers does not in itself dictate that whether the pose can be found in nature.” The court concluded that the element of similarity between the two works “is an idea first expressed in nature and as such is within the common heritage of humankind.”
It is important to note, however, that this holding does not mean that art based on natural subjects is unprotected by copyright. There is copyright protection for such art, but that protection is “thin.” It is limited to protectable elements—in this case, for example, perhaps the light ripples on one of Folkens’s dolphins, and the angle at which his dolphins crossed; in other cases, perhaps “the pose, attitude, gesture, muscle structure, facial expression, coat, or texture” of an animal. A copyright holder must be able to identify similarities between its work and an alleged infringing work that include such protectable elements to be successful in asserting a “thin” copyright to its work.