Pieter Folkens v. Wyland Worldwide
882 F.3d 768
9th Cir.2018Background
- Plaintiff Peter A. Folkens owns a 1979 pen-and-ink illustration titled “Two Dolphins” (copyrighted) showing two dolphins crossing: one vertical, one horizontal.
- Defendant Robert T. Wyland painted “Life in the Living Sea” (color) depicting three dolphins, two crossing, plus fish and plants; Folkens alleges Wyland copied his work and sold prints.
- Folkens sued for copyright infringement; the district court granted summary judgment for defendants after applying the Ninth Circuit’s extrinsic-substantial-similarity test.
- The district court found the only meaningful similarity was the crossing-dolphins motif, which it deemed an unprotectable idea because it derives from nature and dolphin physiology/behavior.
- Folkens appealed, arguing his specific posed depiction (allegedly produced with trainers) is original and protectable; defendants argued the pose and scene are natural and unprotectable.
- The Ninth Circuit affirmed summary judgment, holding the crossing-dolphins element is an idea found in nature and not protectable; Folkens’s copyright is “thin” and the works are not substantially similar in protectable expression.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the shared element—two dolphins crossing (one vertical, one horizontal)—is a protectable element of expression | Folkens: his particular posed depiction (based on trainer-posed photos) is original expression and protectable | Wyland: the crossing-dolphins motif is a natural idea/scene and therefore unprotectable; other elements differ | Held: Crossing dolphins is an idea first expressed in nature and not protectable; summary judgment for defendants affirmed |
| Whether a trainer-induced pose changes its nature from natural idea to protectable expression | Folkens: use of trainers produced a unique, non-natural pose warranting protection | Wyland: trainer use does not render naturally occurring poses original | Held: Trainer-assisted poses that replicate natural postures do not make the underlying idea protectable |
| Whether Folkens showed substantial similarity of protectable elements | Folkens: overall impression and specific elements amount to substantial similarity | Wyland: differences in medium, color, lighting, angles, additional elements negate similarity in protectable features | Held: No substantial similarity of protectable elements; Folkens’s thin copyright not infringed |
| Whether summary judgment was appropriate on extrinsic test grounds | Folkens: factual dispute (e.g., natural occurrence) should preclude summary judgment | Wyland: extrinsic test is objective and supports judgment as a matter of law | Held: Summary judgment appropriate; no reasonable juror could find substantial similarity of protectable elements |
Key Cases Cited
- Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003) (ideas first expressed in nature are not protectable; realistic animal depictions may earn only thin, narrow protection)
- L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841 (9th Cir. 2012) (two-part substantial similarity test; extrinsic/intrinsic framework)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (U.S. 1991) (copyright protects original expression, not ideas)
- Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004) (distinguish protectable from unprotectable material; access lowers proof threshold for similarity)
- Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904 (9th Cir. 2010) (general concepts unprotectable; specific expressive details may be protected)
- Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990) (summary judgment can be appropriate where no reasonable juror could find substantial similarity)
- Smith v. Jackson, 84 F.3d 1213 (9th Cir. 1996) (on extrinsic test, use analytic dissection and expert testimony to assess objective similarities)