Pieter A. Folkens, DBA A Higher Porpoise Design Group, Plaintiff-Appellant,
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.
and Submitted November 14, 2017 San Francisco, California
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
Dale Risman (argued), Henderson, Nevada, for
Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges,
and James E. Gritzner, [*] District Judge.
panel affirmed the district court's summary judgment in
favor of the defendant in an action under the Copyright Act.
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.
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
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 ...