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Peter A. Folkens drew a picture of two dolphins crossing underwater. Robert Wyland painted a similar picture.
The artists appreciate the same marine animals, but they have had different commercial successes. Folkens' drawing, adapted for a Greenpeace card, sells for 1.50 Euros. Wyland's art sells for a lot more.
Folkens thought he could capture some of Wyland's earnings by suing for copyright in Folkens v. Wyland Worldwide. A federal appeals court said there is no copyright in a naturally occuring scene.
The U.S. Ninth Circuit Court of Appeals affirmed a summary judgment against the plaintiff, a self-proclaimed "world-renowned wildlife artist, illustrator, photographer, researcher, and author best known for his work in the field of marine mammals." He copyrighted an illustration of two dolphins swimming across each other in 1979.
In his lawsuit, Folkens says that Wyland infringed when he painted a similar underwater scene with three dolphins -- two crossing each other -- and other fish and plants. He alleged that Wyland made enough prints to collect $4.1 million from the sales.
A trial judge reviewed the works to determine if they were "substantially similar." The judge said the main similarity -- two dolphins crossing each other -- was a natural position that was not protected by copyright law.
Folkens appealed, but the Ninth Circuirt agreed with the trial judge.
"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," the appeals panel said.
The judges said the dolphins' swimming postures were commonplace. Even though a dolphin trainer guided the dolphins to cross paths, it was not a novel pose.
The appeals court said it reached a similar result in a case involving glass sculptures of jellyfish. In Satava v. Lowry, the Ninth Circuit said depicting the animals in a clear glass was "an appropriate setting for an aquatic animal."
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