21575590 – dolphins at sea

The Ninth Circuit issued an opinion last Friday that seems second nature. The court affirmed summary judgment for Wyland Galleries against marine wildlife artist Pieter A. Folkens, who claimed Wyland copied Folkens’s drawing of crossing dolphins in Wyland’s giclée titled “Life in the Living Sea.”  Folkens asserted Wyland created enough of the allegedly infringing prints to net over $4 million in sales.

Folkens published his black and white drawing in 1979, which depicts one dolphin swimming vertically and the other swimming horizontally.  Wyland, best known for its “whaling wall” murals displayed worldwide, created a color print in 2011 depicting three dolphins, aquatic plants, and other wildlife.  Two of the dolphins in Wyland’s work are crossing, but do so at different angles than those in Folkens’s drawing.  Folkens acknowledged the concept of crossing dolphins occurs in nature and cannot qualify for copyright protection.  Dolphin crossing is typical behavior since dolphins are social animals and often travel in groups.  However, Folkens argued his particular expression of the dolphins warranted protection and Wyland’s work was substantially similar to his depiction.

The Eastern District of California had awarded summary judgment for Wyland in 2016, holding natural positioning and physiology of animals are not protectable.  The Ninth Circuit affirmed this decision citing the principles set forth in Satava v. Lowry, which considered whether a life-like jellyfish sculpture in clear glass could be protected.  In that case, the court recognized ideas, “first expressed in nature, are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them.”  If this were not the case, the Court noted an artist could monopolize images of geese flying in a “V” as they migrate, a mother duck leading ducklings out of a pond, a hummingbird hovering over a flower as it sucks its nectar, bats hanging upside down in cave, and countless other scenes commonly found in nature.

The Court in the instant case acknowledged an artist may receive protection for how a wildlife scene is expressed, such as pose, attitude, gesture, muscle structure, facial expression, coat and texture.  However, any such protection is “thin,” which means the defendant’s work must be virtually identical to be held infringing.  The Court found this not to be the case here where Folkens’s work is a relatively basic drawing in black and white.  Conversely, Wyland’s print is in color and features numerous additional elements.  Wyland’s dolphins also do not have the same texture and skin tone as Folkens’s, which possess distinctive ripples.  That Folkens enlisted animal trainers to create the scene he captured is irrelevant, said the Court, because the scene is merely a recreation of what commonly occurs in nature.

Barring an appeal to the California Supreme Court, the Ninth Circuit’s decision brings this dolphin tale to a close.