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`Court of Appeals Case No. 16-15882
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`PIETER AREND FOLKENS, dba A HIGHER PORPOISE DESIGN GROUP
`Plaintiffs-Appellants,
`v.
`
`WYLAND (NFN) aka ROBERT THOMAS WYLAND, et al.
` Defendants-Appellees.
`
`Appeal from the United States District Court
`Eastern District of California District Court
`No. 2:14-cv-02197-GEB-JAM The
`Honorable John A. Mendez
`
`APPELLEES’ ANSWERING BRIEF
`
`Marc Risman (CA State Bar No. 82678)
`10120 S. Eastern Ave., Ste. 206
`Henderson, NV 89052
`Telephone: (702) 388-8100
`Facsimile: (702) 492-4992
`E-Mail: marcrisman@calneva-law.com
`Attorney for Defendants-Appellees
`
`
`
`Court of Appeals Case No. 16-15882
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`PIETER AREND FOLKENS, dba A HIGHER PORPOISE DESIGN GROUP
`Plaintiffs-Appellants,
`v.
`
`WYLAND (NFN) aka ROBERT THOMAS WYLAND, et al.
` Defendants-Appellees.
`
`Appeal from the United States District Court
`Eastern District of California District Court
`No. 2:14-cv-02197-GEB-JAM The
`Honorable John A. Mendez
`
`APPELLEES’ ANSWERING BRIEF
`
`Marc Risman (CA State Bar No. 82678)
`10120 S. Eastern Ave., Ste. 206
`Henderson, NV 89052
`Telephone: (702) 388-8100
`Facsimile: (702) 492-4992
`E-Mail: marcrisman@calneva-law.com
`Attorney for Defendants-Appellees
`
`
`
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`CORPORATE DISCLOSURE STATEMENT
`(Fed. R. App. P. 26.1)
`Defendants-Respondents have no corporate interests or affiliations to disclose.
`Dated: November 30, 2016
`Respectfully submitted,
`
`/s/ Marc Risman
`
`
`
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`TABLE OF CONTENTS
`
`PAGE(S)
`
`I.
`
`II.
`
`INTRODUCTION.......................................................................................... 1
`
`STATEMENT OF THE ISSUES PRESENTED FOR APPEAL ................. 1
`
`III.
`
`STATEMENT OF THE CASE ...................................................................... 2
`
`IV. ARGUMENT ................................................................................................. 4
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`The District Court’s Findings Should Be Affirmed........................................4
`
`The District Court Followed Ninth Circuit Precedent and Guidelines...........4
`
`Red Herrings Concerning Similarities............................................................7
`
`Red Herrings Concerning the Use of a Trainer and Photographs..................8
`
`Additional Facts, Findings, and Case Law in Support of Affirming
`Summary Judgment ......................................................................................10
`
`Leading Cases Upholding Summary Judgment for the Defendants in Other
`Jurisdictions ................................................................................................15
`
`V.
`
`CONCLUSION............................................................................................. 18
`
`VI.
`
`STATEMENT OF RELATED CASES ........................................................19
`
`i.
`
`
`
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`TABLE OF AUTHORITIES
`
`Cases Pages
`Aliotti v. R. Dakin & Co., 831 F.2d 898 (9thCir.1987)...................................5, 8, 11
`
`Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994) ......10
`
`Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir.1994)..................17
`
`Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002)......................11
`
`Cavalier v. Random House, Inc., 297 F.3d 815, 826 (9th Cir. 2002)....................12
`
`Currin, et al., v. Arista Records, Inc., 724 F. Supp. 2d 286 (2010) .....................16
`
`Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 348;
`
`111 S.Ct.1282.........................................................................................................17
`
`Florentine Art Studio, Inc. v. Vedet K. Corp., 891 F. Supp. 532, 537 (C.D. Cal.
`
`1995) ........................................................................................................................7
`
`George S. Chen Corp. v. Cadona International, Inc., 266 Fed.Appx. 523 (9th
`
`Cir.2008). .......................................................................................................5, 6, 15
`
`George S. Chen Corp. v. Cadona International, Inc., 266 Fed.Appx. 523, 524 (9th
`
`Cir.2008).............................................................................................................7, 13
`
`ii.
`
`
`
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`Giangrasso v. CBS, Inc., MTM Enterprises, Inc., et.al., 534 F. Supp. 472
`
`(1982).......................................................................................................................16
`
`Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1247 (11th Cir.1999) ...................17
`
`Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.1980) ...15, 16
`
`Hogan v. DC Comics, 48 F. Supp. 2d 298, 309 (S.D.N.Y.1999) ...........................17
`
`Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) ..........................16
`
`Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995) ......................17
`
`Kouf v. Walt Disney Pictures & Television, 16 F.3rd 1042, 1045 (9th Cir.1994).11
`
`L.A. Printex Industries, Inc. v. Aeropostale, Inc., 676 F.3rd 841, 852 (9th
`
`Cir.2012) .................................................................................................................11
`
`L.A. Printex Industries, Inc. v. Aeropostale, Inc., 676 F.3rd 841, 849-850 (9th
`
`Cir.2012)..................................................................................................................11
`
`L.A. Printex Industries, Inc. v. Aeropostale, Inc., 676 F.3rd 841, 848 (9th
`
`Cir.2012) .................................................................................................................12
`
`Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3rd 904, 914 (9th Cir. 2010).......11
`
`Oravec v. Sunny Isles Luxury Ventures, L.C., et al., 527 F.3d 1218 (2008) .........17
`
`Satava v. Lowry, 323 F.3rd 805, 810 (9th 2003) .........................................5, 6, 8, 10
`
`Shaw v. Lindheim, 919 F.2nd 1353, 1359 (9th Cir.1990)...................................... 11
`
`iii.
`
`
`
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` Silverman v. CBS, Inc., 632 F. Supp. 1344, 1352 (S.D.N.Y.1986) .......................16
`
`Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706, 709
`
`(S.D.N.Y.1987) .......................................................................................................16
`
`Sportsman’s Warehouse v. Fair, 576 F.Supp.2d 1175 (D.Colo. 2008) ................15
`
`Three Boys Music Corp. v. Bolton, 212 F.3rd 477, 485 (9th Cir.2000) .................11
`
`Twentieth Century–Fox Film Corp. v. Entm't Distrib., 429 F.3d 869, 876 (9th Cir.
`
`2005) .......................................................................................................................10
`
`iv.
`
`
`
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`I. INTRODUCTION
`Respondent, Wyland, first drew crossing dolphins in 1977. This was at least
`
`a year before Appellant created his work that he claims was copied. Nonetheless,
`
`Plaintiff sued Respondent claiming that Wyland’s work, “Life in the Living Sea,”
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`infringed upon Plaintiff’s work entitled, “Two Dolphins.” The District Court
`
`found that no protectable elements of “Two Dolphins” were copied in “Life in the
`
`Living Sea,” and granted summary judgment in favor of the Defendants. See
`
`Respondents’ Excerpts of Record p. 148.
`
`II. STATEMENT OF THE ISSUES PRESENTED FOR APPEAL Should
`
`the District Court's granting of Defendants' Motion for Summary Judgment on
`
`Plaintiff's claim for copyright infringement be upheld?
`
`Does any similarity between the works of art involve elements that are
`
`found in nature, or derived therefrom, and therefore, not subject to copyright
`
`protection?
`
`Are the dolphins in Life in the Living Sea similar and consistent to dolphins
`
`in other original works by Wyland as opposed to copying Appellant's work?
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`1
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`III. STATEMENT OF THE CASE
`
`In creating "Life in the Living Sea," Defendant, Wyland, did not copy
`
`Appellant's work. Evidence of this was presented in Defendants' Motion for
`
`Summary Judgment. See Respondents’ Excerpts of Record p. 3-29.
`
`Respondent, Wyland, first drew crossing dolphins in 1977. See
`
`Respondents’ Excerpts of Record at 14:24-26. This was at least a year before
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`Appellant created his work that he claims was infringed upon by Defendant,
`
`Wyland.
`
`Appellant fails to make a prima facie case of copyright infringement. The
`
`idea and subject matter of dolphins swimming under water is not protected as it is
`
`the depiction of a natural subject doing a natural behavior.
`
`The District Court’s Order Granting Summary Judgment shows that it
`
`considered the Ninth Circuit’s standards for granting summary judgment on behalf
`
`of a plaintiff in this case. The District Court reviewed the pleadings and exhibits
`
`submitted by both parties. See Respondents’ Excerpts of Record p.137-145.
`
`The District Court paid particular attention to the main similarities and
`differences between the parties’ works, particularly: Wyland’s work is in color;
`plaintiff’s is in black-and-white; Wyland’s work features three dolphins, the
`plaintiff’s only two; Wyland’s work features other exotic fish, brightly colored, as
`well as plant-life that fills no less than one-third of the canvas at the sides and
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`2
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`bottom, while the plaintiff’s work shows no fish other than the two dolphins and
`no plant-life or any other figure at all; in Wyland’s work, the surface of the water
`is shown from below, while in the plaintiff’s work the surface is not shown. Both
`works feature light streaming from above, but in Wyland’s work, the light is a
`minor feature, suggested by subtle strokes at the top of the painting, while in
`Folkens’ work, the lighting effect is almost as prominent a visual feature as the
`dolphins themselves, represented by “stippling,” or cascading white dots that
`pervade the entire drawing; in Wyland’s painting, the source of the light –
`presumably the sun or moon – is a conspicuous feature, represented by bright
`ripples at the surface of the water, while in Folkens’ work, the source of the light
`is not represented or suggested by any means; the tails of the parties’ dolphins are
`distinctly different, Wyland’s with a wide, flowing curve, indented at the middle,
`while Folkens’ is short, straight and triangular; both parties’ works feature
`dolphins crossing underwater, but the angles created by the respective dolphins are
`different, with Wyland’s angle broader, because he depicts the horizontal dolphin
`more horizontal, and the upright dolphin less upright; Wyland’s horizontal dolphin
`has swum further past the upright dolphin than Folkens’, as can be seen by noting
`that its dorsal fin is beyond the upright dolphin, while the dorsal fin of the upright
`dolphin in Folkens’ drawing is squarely in front of the horizontal dolphin; and the
`right flipper of Wyland’s upright dolphin curves away from its body, casting a
`shadow across its underside, while the corresponding flipper of the upright
`dolphin in Folkens drawing is flat against its body and throws no shadow. See
`Defendants’ Motion for Summary Judgment 9:16-10:5(Respondents’ Excerpts of
`Record 17:16-18:5) as cited in the Order Granting Summary Judgment. See
`Respondents’ Excerpts of Record 143:8-12.
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`3
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`These differences are magnified by the generic nature of the subject matter.
`The District Court found “the main similarity between Wyland’s ‘Life in the
`Living Sea’ and Plaintiff’s ‘Two Dolphins’ is two dolphins swimming underwater,
`with one swimming upright and the other crossing horizontally. See Mot.
`9:16-10:5. (Respondents’ Excerpts of Record 17:16-18:5)” Respondents’ Excerpts
`of Record 143:8-12.
`
`IV. ARGUMENT
`A. The District Court’s Findings Should Be Affirmed.
`Respondents maintain that the District Court reviewed all evidence presented
`on the record diligently, and viewing the inferences to be drawn from the facts in
`the light most favorable to the party opposing the motion, found that no genuine
`issues of fact remained, and that as a matter of law, Defendant, Wyland, did not
`infringe Plaintiff's work. The court found that “the main similarity between
`Wyland's ‘Life in the Living Sea’ and Plaintiff's ‘Two Dolphins’ is two dolphins
`swimming underwater, with one swimming upright and the other crossing
`horizontally.” See Respondents’ Excerpts of Record 143:8-12. The Court further
`found that the main similarity between the works is found in nature and therefore,
`Appellant's work was not subject to copyright protection.
`B. The District Court Followed Ninth Circuit Precedent and Guidelines
`When Granting Summary Judgment In Favor of Defendants.
`The District Court followed, and cited, the Ninth Circuit extensively in
`granting Summary Judgment to the Respondents. See Respondents’ Excerpts of
`Record 143:13-144:25 Respondents argue that being guided by rulings of this
`Ninth Circuit Court of Appeals, the District Court acted within its discretion in
`properly granting summary judgment on behalf of Defendants/Respondents.
`
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`Respondents maintain that even upon de novo review, this Court will find
`that the record does not contain facts or evidence to sustain a prima facie case that
`Respondent, Wyland, copied protected elements of Appellant's work. Therefore,
`this honorable Court will also find that as a matter of law, Respondents did not
`infringe on any of Appellant's rights under U.S. copyright law. Respondents
`request that the Ninth Circuit recognize the deference that the District Court Judge
`gave to Ninth Circuit Court decisions. When considering these decisions of the
`Ninth Circuit Court of Appeals, stare decisis will guide this Court to reach de
`novo findings that affirm the decision of the court below.
`The record from the District Court, even when viewed in a light most
`favorable to Plaintiff/Appellant, supports an uncontroverted finding, which leaves
`no material issue of fact, that "dolphins do in nature in fact swim vertically and are
`often depicted swimming vertically."
`Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003) and George S. Chen Corp. v.
`Cadona International, Inc., 266 Fed.Appx. 523 2008 (9th Cir.2008) are two Ninth
`Circuit cases that were relied upon by the District Court and contain facts almost
`identical to the case at bar. See Respondents’ Excerpts of Record 143:17-144:15.
`The subject art works in Satava were glass-in-glass jellyfish sculptures. In
`the case at bar, the subject matter is dolphins depicted on a two-dimensional
`surface. Both mediums, glass-in-glass and canvas, are “centuries-old art forms.”
`In Satava, supra, the Ninth Circuit (Judge Gould writing the majority opinion)
`found that the Copyright Act “denied artists the exclusive right to ideas and
`standard elements in their works, thereby preventing them from monopolizing
`what rightfully belongs to the public.”
`In Satava, supra, the Ninth Circuit had to “locate the faint line between
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`unprotected idea and original expression in the context of realistic animal
`sculpture.” The Ninth Circuit concluded “that the sculptures are composed of
`unprotectable ideas and standard elements, and also that the combination of those
`unprotectable elements is unprotectable.”
`In George S. Chen Corp. v. Cadona International, Inc., supra, and the case at
`bar, the subject matter of the artwork was the same, i.e., dolphins. George S. Chen
`Corp. sued Cadona International, Inc. for infringing on its dolphin ornaments.
`In George S. Chen Corp. v. Cadona International, Inc., supra, the lower court
`granted Summary Judgment on behalf of Defendant/Appellant, Cadonoa, finding
`no material issues of fact remaining, and that as a matter of law there was no
`infringement. In the case at bar, the lower court ruled that there were no material
`issues of fact remaining, and that as a matter of law there was no infringement.
`In the Order Granting Summary Judgment in the case at bar, (Respondents’
`Excerpts of Record 143:13-144:9), Judge Mendez wrote, “But this idea of a
`dolphin swimming underwater is not a protectable element. Much like a narwhal's
`tusk, Plaintiff's arguments do not help it survive in the sea of Ninth Circuit
`precedent. In the Ninth Circuit, natural positioning and physiology are not
`protectable. For instance, in Satava v. Lowry, 323 F.3d 5 (9th Cir. 2003), the
`plaintiff asserted copyright protection in a glass-in-glass jellyfish sculpture. The
`Ninth Circuit held that the plaintiff "may not prevent others from copying aspects
`of his sculptures resulting from either jellyfish physiology or from their depiction
`in the glass-in-glass medium," since the sculptures combined several unprotectable
`elements, including jellyfish with tentacles or bells, jellyfish in bright colors, and
`jellyfish swimming vertically. Id. at 810-11. Similarly, in Aliotti v. R. Dakin &
`Co., 831 F.2d 898 (9th Cir.2008) the Ninth Circuit held: "No copyright protection
`
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`may be afforded to the idea of producing stuffed dinosaur toys or to elements of
`expression that necessarily follow from the idea of such dolls." 831 F.2d 898, 901
`(9th Cir. 1987); see also George S. Chen Corp. v. Cadona Int'l, Inc., 266 F. App'x
`523, 524 (9th Cir. 2008) (finding the concept of "a 'cute' dolphin-with an open
`mouth and an uplifted, twisted tail which made it appear to be swimming-" is an
`unprotectable element); Florentine Art Studio, Inc. v. Vedet K. Corp., 891 F.
`Supp. 532, 537 (C.D. Cal. 1995) (finding in part that the idea of three dolphins
`jumping or leaping is unprotectable).”
`C. Red Herrings Concerning Similarities
`Appellant's Opening Brief alleges, "Respondent captured Appellant's
`protected expression using mechanical assistance, resulting in a degree of
`similarity that the "virtually identical" standard, if it is indeed the applicable
`standard, is met in regards to the arrangement (pose and perspective) of the
`subject matter on a two-dimensional surface creating the illusion of a
`three-dimensional waterscape."
`First, Appellant cites nothing in the record that supports his contention that
`Respondent used mechanical assistance. Respondent, Wyland, has painted
`hundreds of dolphins in front of live audiences (at art shows, painting of murals,
`and on television) and has never used "mechanical assistance." Appellant cannot
`conjure up allegations with no foundation and claim that he has created a material
`issue of fact.
`Second, the District Court did not find any copying of protected expression.
`Appellant did not, and does not, have a prima facie case for copying of any
`protected expression. "In regards to the arrangement (pose and perspective) of
`the subject matter..." dolphins swimming vertically and crossing in the wild have
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`been photographed since the 1950's. As a diver, Respondent, Wyland, has
`observed dolphins swimming vertically and crossing in the wild and even drew
`such a pose and prospective a year before Appellant created his work. Scenes
`found in nature cannot be protected under our copyright laws.
`There is no similarity to be considered based on the "subject matter” being
`created “on a two-dimensional surface creating the illusion of a three-dimensional
`waterscape." This element of Appellant’s work is not protected and was not
`copied. Wyland has created hundreds of paintings of dolphins on canvas and
`paper, i.e., two dimensional surfaces. Each of them has a backdrop of the ocean,
`i.e. a waterscape. Every artist strives to create the illusion of their paintings being
`three dimensional. This common medium being a protectable element was
`rejected in Satava.
`There is no triable issue of material fact concerning Wyland's painting, on
`paper or canvas, of dolphins in a pose found in nature with an ocean backdrop,
`being a copy of any protected expression in Appellant's work.
`D. Red Herrings Concerning the Use of a Trainer and Photographs
`Appellant claims original expression, because he had a trainer pose two
`dolphins. Appellant fails to rebut the finding that dolphins behave in a
`substantially similar manner in nature. Even if an experienced trainer was used to
`help pose the two dolphins, no trainer could get two dolphins to pose in a manner
`that was completely contrary to what they would be able to physically do in
`nature. A dog can be trained to sit on command, but that is because sitting is
`something a dog naturally does. The trainer can make the dog do something on
`command that it naturally does. A dog cannot be trained to smoke a cigar or do
`chin ups. Likewise, Appellant fails to establish that the trainer posed the dolphins
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`in any manner substantially different than what exists in nature.
`Although Appellant claims that he was able to get the dolphins to "pose" for
`him, that "pose" also happens to exist in nature and evidence of such was
`considered by the court in determining that as a matter of law, Defendants were
`entitled to Summary Judgment.
` Wyland’s 1977 work was based on his experiences and observations as a
`scuba diver. He witnessed dolphins swimming upright while others crossed
`horizontally.
`Appellant claims that he painted his two dolphins from a copyrighted
`photograph. There is no allegation, or proof, that Respondent ever saw, or had
`access to, those photographs. Therefore, any copyright claims related to these
`photographs are not relevant to this appeal. The issue, as stated in Plaintiff’s
`Complaint, is whether Wyland copied protected elements of Appellant's painting.
`The answer is that there was no copying of any protected element. That conclusion
`can be reached (and was reached by the District Court) upon review of the entire
`record, comparison of the respective works of art, and considering all facts in a
`light most favorable to Appellant. Respondent, Wyland, did not copy Appellant's
`work and there is not sufficient similarity of any protected portion, or element,
`between the subject artworks of the Respondent and Appellant to submit to a trier
`of fact.
`E. Findings, Holdings, and Authorities From the District Court’s Order
`Support Affirmation of Summary Judgment
`Upon considering all proposed evidence in a light most favorable to
`Plaintiff/Appellant, the District Court correctly determined that there were no
`genuine issues of material fact and that as a matter of law, the works at issue "are
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`dissimilar in every respect but one: both show two dolphins, crossing underwater."
`The District Court further found, "the evidence purports to show copying of the
`two dolphins' general outline, which under Satva v. Lowry, 323 F.3d 805 (9th Circ.
`2003), is an unprotectable element not entitled to copyright protection." See
`Respondents’ Excerpts of Record 139:16-19.
`“To demonstrate copyright infringement, the plaintiff must prove...(2)
`copying of constituent elements of the work that are original.” Twentieth Century
`Fox Film Corp v. Entm't Distrib., 429 F.3d 869, 876 (9th Cir. 2005) as cited by the
`District Court in its Order Granting Summary Judgment (p. 3, ll. 28-p. 4, ll. 4).,
`which establishes the issue of how to determine whether, in creating the accused
`work, Wyland copied ‘Two Dolphins.’ See Respondents’ Excerpts of Record
`139:28-140:9.
`“In considering substantial similarities between two works, the Ninth Circuit
`employs both an extrinsic test and intrinsic test. ‘[T]he extrinsic test . . .
`objectively considers whether there are substantial similarities in both ideas and
`expressions, whereas the intrinsic test continues to measure expression
`subjectively.’ Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir.
`1994). ‘The standard for infringement-substantially similar or virtually identical-
`determined at the 'extrinsic' stage is applied at the 'intrinsic' stage.’ Mattel, Inc. v.
`MGA Entm't, Inc., 616 F.3d 904, 914 (9th Cir. 2010), as amended on denial of reh'
`g (Oct. 21, 2010). ‘The intrinsic test' is a subjective comparison that focuses on
`whether the ordinary, reasonable audience would find the works substantially
`similar in the total concept and feel of the works." Cavalier v. Random House,
`Inc., 297 F.3d 815, 822 (9th Cir. 2002) internal quotation marks omitted).” See
`Respondents’ Excerpts of Record 140:19-141:16.
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`The District Court’s Order correctly held, on p. 86:7-16, that on a motion for
`summary judgment, "only the extrinsic test is important." Kouf v. Walt Disney
`Pictures & Television, 17 F.3d 1042, 1045 (9th Cir. 1994); see also Shaw v.
`Lindheim, 919 F.2d 1353, 1359 (9th Cir. 1990) (holding that in a copyright case
`involving literary works, plaintiff’s satisfaction of the extrinsic test is sufficient to
`survive summary judgment on substantial similarity issue) L.A. Printex Indus.,
`Inc. v. Aeropostale, Inc., 676 F.3d 841, 852 (9th Cir. 2012), as amended on denial
`of reh'g and reh'g en bane (June 13, 2012) (indicating "the `Shaw rule' applies to
`art work"). See Respondents’ Excerpts of Record 141:7-16.
`“When applying the extrinsic test, the court examines whether the two works
`share a similarity of ideas and expression, as measured by external, objective
`criteria. This examination ‘often requires analytical dissection of a work.’ Three
`Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000). To accomplish
`analytical dissection, the court divides a work into its constituent parts to
`determine whether similarities between the works are attributable to protectable or
`unprotectable elements. In other words, the court ‘distinguish[es] protectable from
`unprotectible elements and ask[s] only whether the protectable element in two
`works are substantially similar.’ L.A. Printex Indus., Inc., 676 F.3d at 849-50
`(holding that ‘original selection, coordination, and arrangement of’ flowers, buds,
`stems, and leaves is protectable expression). As relevant here, in comparing art
`works the court examines "the similarities in their 'objective details in appearance,'
`including, but not limited to, 'the subject matter, shapes, colors, materials and
`arrangement of the representations.'” Id. (quoting Cavalier, 297 F.3d at 826
`(comparing art work)).” See Respondents’ Excerpts of Record 141:17-142:7.
`The District Court recognized that “although summary judgment under the
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`Case: 16-15882, 12/01/2016, ID: 10217708, DktEntry: 27-1, Page 18 of 25
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`extrinsic test "is not highly favored" in copyright cases, L.A. Printex Indus., Inc.,
`676 F.3d at 848 (internal quotation marks omitted), "[s]ummary judgment is
`appropriate if the court can conclude, after viewing the evidence and drawing
`inferences in a manner most favorable to the non-moving party, that no reasonable
`juror could find substantial similarity of ideas and expression," i.e., no reasonable
`juror could find the extrinsic test met. Id. (internal quotation marks omitted).” See
`Respondents’ Excerpts of Record 142:8-16.
`The District Court reviewed the pleadings and exhibits submitted by both
`parties, and paid particular attention to the main similarities and differences
`between the parties’ works, particularly: Wyland’s work is in color; plaintiff’s is in
`black-and-white; Wyland’s work features three dolphins, the plaintiff’s only two;
`Wyland’s work features other exotic fish, brightly colored, as well as plantlife that
`fills no less than one-third of the canvas at the sides and bottom, while the
`plaintiff’s work shows no fish other than the two dolphins and no plant-life or any
`other figure at all; in Wyland’s work, the surface of the water is shown from
`below, while in the plaintiff’s work the surface is not shown. Both works feature
`light streaming from above, but in Wyland’s work, the light is a minor feature,
`suggested by subtle strokes at the top of the painting, while in Folkens’ work, the
`lighting effect is almost as prominent a visual feature as the dolphins themselves,
`represented by “stippling,” or cascading white dots that pervade the entire
`drawing; in Wyland’s painting, the source of the light – presumably the sun or
`moon – is a conspicuous feature, represented by bright ripples at the surface of the
`water, while in Folkens’ work, the source of the light is not represented or
`suggested by any means; the tails of the parties’ dolphins are distinctly different,
`Wyland’s with a wide, flowing curve, indented at the middle, while Folkens’ is
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`short, straight and triangular; both parties’ works feature dolphins crossing
`underwater, but the angles created by the respective dolphins are different, with
`Wyland’s angle broader, because he depicts the horizontal dolphin more
`horizontal, and the upright dolphin less upright; Wyland’s horizontal dolphin has
`swum further past the upright dolphin than Folkens’, as can be seen by noting that
`its dorsal fin is beyond the upright dolphin, while the dorsal fin of the upright
`dolphin in Folkens’ drawing is squarely in front of the horizontal dolphin; and the
`right flipper of Wyland’s upright dolphin curves away from its body, casting a
`shadow across its underside, while the corresponding flipper of the upright
`dolphin in Folkens drawing is flat against its body and throws no shadow.
`These differences are magnified by the generic nature of the subject matter.
`The lower court found that the main similarity, between the two works, is two
`dolphins swimming underwater, with one swimming upright and the other
`crossing horizontally.
`“Moreover, Plaintiff has ‘failed to identify any elements’ of his work ‘that
`are not commonplace or dictated by the idea of dolphin[s].’ George S. Chen Corp.,
`266 F. App'x at 524. The concept of two dolphins crossing underwater
`"necessarily follow[s] from the idea of" two dolphins swimming together. Id.
`Specifically, the cross-dolphin pose featured in both works results from dolphin
`physiology and behavior since dolphins are social animals, they live and travel in
`groups, and for these reasons, they are commonly depicted swimming close
`together. See Aliotti, 831 F.2d at 901 n.1 (explaining that a Tyrannosaurus stuffed
`toy's open mouth was an unprotectable element, since Tyrannosaurus "was a
`carnivore and is commonly pictured with its mouth open"). Therefore, no
`reasonable juror could find substantial similarity of ideas and expression, since the
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`similarities between Plaintiff's "Two Dolphins" and Wyland's "Life in the Living
`Sea" are unprotectable elements.” See Respondents’ Excerpts of Record
`144:10-25.
`“Plaintiff also argues there is evidence of direct copying. Opp'n 12:21-14:1.
`At the hearing, he contended that this is a case of tracing. However, Plaintiff's
`Exhibit 12 shows a 300% enlargement of "Two Dolphins" over a different
`painting, and Frank McGrath's Expert Report, Exhibit 5, compares "Two
`Dolphins" and a different painting that is not at issue in this portion of Defendants'
`motion. While Plaintiff's Exhibit 13 compares the parties' works, it focuses on the
`dolphins' general outlines, which is an unprotectable element, and ‘a [single] point
`of intersection of the two dolphins’ in Plaintiff's work, which Plaintiff focused on
`at the hearing. Overall, this purported evidence of direct copying is insufficient to
`establish the presence of a genuine dispute of material fact on the copying issue.
`Therefore, summary judgment for Defendants is proper on this portion of their
`motion.” See Respondents’ Excerpts of Record 144:26-145:12.
`F. Leading Cases Upholding Summary Judgment for Defendants in
`Copyright Cases in Other Jurisdictions
`The leading case that contains similar facts and cites Ninth Circuit authority,
`George S. Chen Corp. v. Cadona Int'l, Inc., supra., is Sportsman’s Warehouse v.
`Fair, 576 F.Supp.2d 1175 (D.Colo. 2008). In that case, the court entered Summary
`Judgment, on behalf of defendant, declaring that certain sculptures by the
`defendant do not infringe on the moving party’s copyrighted sculpture. Like in the
`case at bar, the appellate court in Sportsman’s Warehouse v. Fair, supra, reviewed
`the matter de novo. Like in the case at bar, Sportsman’s Warehouse v. Fair,
`supra, involved artwork (sculptures) depicting mammals (elk) made by artists with
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`Case: 16-15882, 12/01/2016, ID: 10217708, Dk
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