In February the United States Court of Appeals for the Ninth Circuit decided in the case of Folkens v Wyland that, under the objective standards for substantial similarity, the depiction of two dolphins crossing underwater was an idea “found first in nature” and thus “not a protectable element” under copyright law.

The issue at hand came due to Folkens’s allegation that his pen and ink artwork Two Dolphins was copied without authorisation in Wyland’s Life in the Living Sea. Folkens’s allegation was based upon the fact that both works depict two dolphins crossing one another, and claimed that Wyland and his associates had created enough prints to make $4,195,250 from sales of ‘Life in the Living Sea’.

To prove a copyright infringement the onus was upon the plaintiff (Folkens) to meet the criteria of Feist Publications v Rural Telephone that he had ownership of a valid copyright, and that there had been copying of constituent elements of the original work by the defendant (Wyland). The defendant conceded that whilst there was a copyright in play, it was not copied by ‘Life in the Living Sea’.

Two Dolphins. Credit: Folkens

In finding whether there was copying of original elements of the work the plaintiff had to establish that the defendant had access to the work of the plaintiff, and that the two works were substantially similar as per Printex Industries Inc v Aeropostale Inc. Wyland did not contest that he had access to the work, but that there was no substantial similarity between his work and ‘Two Dolphins’.

Whilst both parties agreed that the element of similarity was the two dolphins crossing, the court considered the reasoning of Swirsky v Carey, to first consider whether the disputed expression was indeed a protected material in the plaintiff’s work, which could then undergo the substantial similarity test.

The court agreed that the crossing was a naturally occurring element that was not protectable under copyright law due to two key reasons. Firstly, they rejected the plaintiff’s argument that as dolphin trainers were used to make the pose in question, it was a copyrightable depiction. The court rejected this on the basis that two dolphins crossing was a pose which was induced for a period of time rather than a novel pose. Secondly, the court held that given the circumstances it invoked the reasoning of Satava v Lowry, holding that the element Folkens sought to hold under his copyright was one “first expressed in nature” and as such “the common heritage of humankind” which “no artist may use copyright law to prevent others from depicting”.

It is clear that if there were substantial similarities other than the crossing itself, that might have provided protection under copyright. But as the reader can clearly identify from the illustrations, and indeed as the two parties established, the only similarity to be contested was the issue of the crossing of the dolphins.

Consequently, the idea of two dolphins swimming underwater is not a protectable element, given that natural positioning and physiology of are not protectable under the Ninth Circuit precedent.

In affirming the summary judgment of the district court in favour of the defendant, the Court of Appeal remarked that the guiding principle of copyright law is to “protect unique expression, and thereby to encourage expression” and not to grant a monopoly to the first artist showing an expression in nature.