Under the Sea, Under the ©? Ninth Circuit Considers Art Inspired by Nature

Folkens (left) vs. Wyland (right)

By Yonah Reback

The intersection of copyright law and the animal kingdom reached new heights during the global phenomenon of Naruto v. Slater. When wildlife photographer David Slater traveled to the jungles of Indonesia in 2011, he surely expected to take snapshots of its native inhabitants. To Slater’s surprise, a macaque nicknamed Naruto grabbed his camera and took what soon became the infamous “monkey selfie.” Thus began a six-year legal saga as to whether Naruto or Slater owned the copyright for the photograph. Although the U.S. Copyright Office indicated that there was no basis for extending copyright ownership to animals, the case—filed by PETA in defense of the monkey—ultimately settled, leaving the public wanting for legal analysis of the issue.

Now, a Ninth Circuit copyright case provides further proof that one can’t hold a copyright on elements found in nature. In September 2014, Peter A. Folkens, a “world-renowned wildlife artist, illustrator, photographer, researcher, and author,” filed suit alleging that famed marine life painter Robert Wyland infringed his copyright on a pen and ink illustration entitled “Two Dolphins.” According to court filings, “Two Dolphins” is a black and white depiction of two dolphins crossing each other, one swimming vertically and the other swimming horizontally. Wyland’s painting, “Life in the Living Sea,” depicted an underwater scene consisting of three dolphins, two of which are crossing, various fish, and aquatic plants. Folkens alleged that Wyland’s painting constituted an unauthorized copy of “Two Dolphins” because the scenes they depicted were substantially similar.

In May 2016, a federal district judge dismissed the case on the grounds that Folkens couldn’t lay claim to “the idea of a dolphin swimming underwater,” since natural positioning and physiology aren’t protectable.

This month, the Ninth Circuit affirmed the lower court ruling, emphasizing that nature is not copyrightable. Interestingly, Folkens conceded this fact from the outset. To Folkens, the strength of his copyright stemmed from the fact that there was something unique about his expression of two dolphins swimming underwater. Since the dolphins he depicted were based on dolphins “posed by professional animal trainers in an enclosed environment,” Folkens argued that he was not trying to lay claim to a “copyright on nature.”

The Ninth Circuit, however, found little substance in Folkens’ argument. As they explained, the fact that a pose involving animals can effectively be staged by trainers doesn’t mean that the same pose can’t occur in nature. The Court also pointed to its 2003 ruling in Satava v. Lowery, which made clear that “no artist may use copyright law to prevent others from depicting ideas first expressed by nature.” While an artist could achieve copyright protection by adding his own original expression to the work, the bar for reaching this level of protectability when dealing with subject matter drawn from nature was relatively high.

Fourteen years later, the Ninth Circuit reaffirmed this standard in evaluating the copyrightability of subject matter based on nature. To this end, it was theoretically possible for Wyland’s work to have infringed on Folkens’ depiction of dolphins. Yet, given the high bar for achieving protection on works inspired by elements of nature, Folkens’ expression of dolphins constituted a “thin” copyright. Consequently, the dolphins weren’t a protectable element in Folkens’ work. While other aspects of the work were protectable, a substantial similarity analysis revealed that Wyland’s work was in fact distinguishable from Folkens’ work in elements such as color and light. The court therefore concluded that Wyland’s work didn’t infringe on “Two Dolphins.”

As the case was only decided this month, it’s not immediately clear whether Folkens will appeal. If anything seems certain, it’s that this will likely not be the last time an artist seeks copyright protection for art inspired by nature. One can only hope that courts will continue to ensure that nature remains in the public domain.

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