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Folkens v. Wyland Worldwide, LLC

United States Court of Appeals, Ninth Circuit

February 2, 2018

Pieter A. Folkens, DBA A Higher Porpoise Design Group, Plaintiff-Appellant,
v.
Wyland Worldwide, LLC, a California Corporation; Wyland Galleries, Inc., a California Corporation; Signature Gallery Group, Inc., DBA Wyland Galleries, a Nevada Corporation; (NFN) Wyland, AKA Robert Thomas Wyland, Defendants-Appellees.

          Argued and Submitted November 14, 2017 San Francisco, California

         Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding D.C. No. 2:14-cv-02197-JAM-CKD

          Geoffrey Wm. Steele (argued), Karl Folkens, Scott D. Reep, and Stephen Gizzi, Gizzi Reep Foley, Benicia, California, for Plaintiff-Appellant.

          Marc Dale Risman (argued), Henderson, Nevada, for Defendants-Appellees.

          Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and James E. Gritzner, [*] District Judge.

         SUMMARY [**]

         Copyright

         The panel affirmed the district court's summary judgment in favor of the defendant in an action under the Copyright Act.

         The plaintiff alleged that the defendant infringed on his pen and ink depiction of two dolphins crossing underwater. Applying the objective extrinsic test for substantial similarity, the panel held that this depiction was an idea that was found first in nature and was not a protectable element. Because the only area of commonality between the parties' works was an element first found in nature, expressing ideas that nature has already expressed for all, the district court properly granted summary judgment.

          OPINION

          GOULD, Circuit Judge:

         Plaintiff Peter A. Folkens ("Folkens") alleges that Defendant Robert T. Wyland ("Wyland") infringed on his pen and ink depiction of two dolphins crossing underwater. Folkens contends that Wyland's depiction of an underwater scene infringes on his drawing by copying the crossing dolphins, and that the similar element of two dolphins crossing underwater is protectable under copyright law, entitling him to proceed to trial on the issue of whether Wyland's painting violates his copyright. We consider whether two dolphins crossing underwater is a protectable element under the objective standard of this Court's extrinsic test for substantial similarity. We hold that the depiction of two dolphins crossing underwater in this case is an idea that is found first in nature and is not a protectable element. We note, as we did in Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), 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. 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. We affirm the district court.

         I

         A

         Folkens states he is a "world-renowned wildlife artist, illustrator, photographer, researcher, and author best known for his work in the field of marine mammals." He is the author and copyright owner of a pen and ink illustration titled "Two Tursiops Truncatus" also known as "Two Dolphins, " which he created in 1979. Two Dolphins is a black and white depiction of two dolphins crossing each other, one swimming vertically and the other swimming horizontally. No other subjects ...


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