Folkens v. Wyland, et al

Filing 58

ORDER signed by District Judge John A. Mendez on 04/06/16 ORDERING that defendants' 33 Motion for Summary Judgment on plaintiff's first claim for relief for copyright infringement as to the painting by Wyland entitled "Life in the Living Sea" of plaintiff's First Amended Complaint is GRANTED. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PIETER AREND FOLKENS, dba A
HIGHER PORPOISE DESIGN GROUP,

No. 2:14-cv-02197-JAM-CKD

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Plaintiff,
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ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT ON
COPYRIGHT INFRINGEMENT CLAIM

v.
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WYLAND (NFN), aka ROBERT
THOMAS WYLAND, an individual;
WYLAND WORLDWIDE, LLC, a
California Corporation;
WYLAND GALLERIES, INC., a
California Corporation;
SIGNATURE GALLERY GROUP,
INC., a Nevada Corporation
dba WYLAND GALLERIES; and
DOES 1 through 50, inclusive,
Defendants.

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This action arises from a copyright dispute between

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Plaintiff Folkens dba A Higher Porpoise Design Group

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(“Plaintiff”) and Defendants Wyland (NFN), Wyland Worldwide, LLC,

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Wyland Galleries, Inc., and Signature Gallery Group, Inc.

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(collectively, “Defendants”).

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summary judgment (Doc. #33).

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claim for relief for copyright infringement as to the painting by

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Wyland entitled “Life in the Living Sea”; the Court took this

Defendants filed a motion for
This Order addresses the first

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portion of Defendants’ motion under submission at the hearing on

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March 22, 2016. For the reasons stated below, the Court GRANTS

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the motion.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are undisputed.

Plaintiff is a wildlife

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artist, researcher, and author known for his work in the field of

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marine mammals.

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wildlife artist whose giant ‘whaling wall’ murals grace 100

First Am. Compl. (FAC) ¶ 5.

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buildings worldwide.”

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Wyland is a “marine

J.; Mem. of P. & A. (“Mot.”) 2:5–6.

Notice of Mot. & Mot. of Defs. For Summ.

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Plaintiff is the author and copyright owner of a pen and ink

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illustration, published and registered in 1979, and entitled “Two

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Tursiops Truncatus” a.k.a. “Two Dolphins.”

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FAC ¶ 14.

In 2011, Wyland created a giclée on canvas (color photocopy

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made on inkjet printers) entitled “Life in the Living Sea.”

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¶ 17; Wyland Decl. ¶ 18.

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FAC

On September 22, 2014, Plaintiff filed this lawsuit,

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claiming in part that Wyland’s “Life in the Living Sea” infringes

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Plaintiff’s “Two Dolphins” (Doc. #1).

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First Amended Complaint (Doc. #14).

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infringement claim “against the artist Wyland and Wyland

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Worldwide, LLC, the company that owns the copyright in ‘Life in

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the Living Sea.’”

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infringement claim[] against Wyland Galleries, Inc. and Signature

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Gallery Group, Inc. which he . . . asserts are art galleries that

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sold th[e] work[].”

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opposition on March 8, 2016 (Doc. #45).

Mot. 6:12–14.

Plaintiff then filed a
He asserts this copyright

“He also asserts [this]

Id. at 6:14–15.

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Plaintiff filed an
Thereafter, on March 15,

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2016, Defendants filed a reply accompanied by evidentiary

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objections (Doc. ##48, 50).

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II.

OPINION

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A.

Evidentiary Objections

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Defendants raise numerous evidentiary objections to

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Plaintiff’s declaration and exhibits (Doc. #50).

Specifically,

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Defendants object to Plaintiff’s declaration, paragraphs 16–20,

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and the corresponding exhibits that compare “Two Dolphins” with

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“Life in the Living Sea,” under Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rules of

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Evidence Rule 701 (opinion testimony by lay witness) and Rule 702

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(no qualification of expert witness).

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Court need not address these objections, however, because even if

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the Court assumes this evidence is admissible, it does not create

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a genuine issue of material fact.

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to show copying of the dolphins’ general outlines, which under

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Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), is an

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unprotectable element not entitled to copyright protection.

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Exs. 11b, 11d–g.

The

Instead, the evidence purports

Defendants also object to exhibits that compare “Life in the

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Living Sea” with “Love in the Sea.”

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¶ 31.

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because in ruling on this motion it compares “Life in the Living

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Sea” with “Two Dolphins.”

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F.3d 966, 973–74 (9th Cir. 2010).

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Exs. 19a-b; Folkens Decl.

The Court need not address these objections, however,

B.

See Norse v. City of Santa Cruz, 629

Copyright Infringement Claim
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Copyright Infringement Standard

“To demonstrate copyright infringement, the plaintiff must
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prove [two elements: (1)] ownership of a valid copyright and

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[(2)] copying of constituent elements of the work that are

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original.”

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429 F.3d 869, 876 (9th Cir. 2005).

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first element—ownership of a valid copyright.

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2:23–24 (stating “Two Dolphins as a whole is a copyrightable

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work”).

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is, whether, in creating the accused work[], Wyland copied ‘Two

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Dolphins.’”

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Twentieth Century Fox Film Corp. v. Entm’t Distrib.,
Defendants do not dispute the
See, e.g., Reply

“The instant motion addresses the second element—that

Mot. 8:26–28.

Since direct evidence of copying is not available in most

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cases, the second element—copying—“may be established by showing

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that the works in question ‘are substantially similar in their

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protected elements’ and that the infringing party ‘had access’ to

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the copyrighted work.”

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1174 (9th Cir. 2003) (quoting Metcalf v. Bochco, 294 F.3d 1069,

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1072 (9th Cir. 2002)).

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instead argue that “as a matter of law, there is no substantial

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similarity.” Mot. 9:3.

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Rice v. Fox Broad. Co., 330 F.3d 1170,

Defendants do not contest access and

In considering substantial similarities between two works,

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the Ninth Circuit employs both an extrinsic test and intrinsic

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test.

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there are substantial similarities in both ideas and expression,

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whereas the intrinsic test continues to measure expression

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subjectively.”

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1435, 1442 (9th Cir. 1994).

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substantially similar or virtually identical—determined at the

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‘extrinsic’ stage is applied at the ‘intrinsic’ stage.”

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Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 914 (9th Cir. 2010), as

“[T]he extrinsic test . . . objectively considers whether

Apple Comput., Inc. v. Microsoft Corp., 35 F.3d
“The standard for infringement—

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Mattel,

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amended on denial of reh’g (Oct. 21, 2010).

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test’ is a subjective comparison that focuses on whether the

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ordinary, reasonable audience would find the works substantially

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similar in the total concept and feel of the works.”

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Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002) (internal

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quotation marks omitted).

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“The ‘intrinsic

Cavalier v.

On a motion for summary judgement, “only the extrinsic test

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is important.” Kouf v. Walt Disney Pictures & Television, 16 F.3d

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1042, 1045 (9th Cir. 1994); see also Shaw v. Lindheim, 919 F.2d

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1353, 1359 (9th Cir. 1990) (holding that in a copyright case

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involving literary works, plaintiff’s satisfaction of the

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extrinsic test is sufficient to survive summary judgment on

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substantial similarity issue); L.A. Printex Indus., Inc. v.

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Aeropostale, Inc., 676 F.3d 841, 852 n.5 (9th Cir. 2012), as

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amended on denial of reh’g and reh’g en banc (June 13, 2012)

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(indicating “the ‘Shaw rule’ applies to art work”).

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When applying the extrinsic test, the court examines whether

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the two works share a similarity of ideas and expression, as

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measured by external, objective criteria.

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“often requires analytical dissection of a work.”

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Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000).

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accomplish analytical dissection, the court divides a work into

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its constituent parts to determine whether similarities between

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the works are attributable to protectable or unprotectable

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elements.

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from unprotectible elements and ask[s] only whether the

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protectible elements in two works are substantially similar.”

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L.A. Printex Indus., Inc., 676 F.3d at 849–50 (holding that

This examination
Three Boys
To

In other words, the court “distinguish[es] protectible

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“original selection, coordination, and arrangement of” flowers,

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buds, stems, and leaves is protectable expression).

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here, in comparing art works the court examines “the similarities

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in their ‘objective details in appearance,’ including, but not

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limited to, ‘the subject matter, shapes, colors, materials, and

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arrangement of the representations.’”

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F.3d at 826 (comparing art works)).

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As relevant

Id. (quoting Cavalier, 297

Summary judgment under the extrinsic test “is not highly
favored” in copyright cases.

L.A. Printex Indus., Inc., 676 F.3d

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at 848 (internal quotation marks omitted).

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judgement is appropriate if the court can conclude, after viewing

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the evidence and drawing inferences in a manner most favorable to

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the non-moving party, that no reasonable juror could find

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substantial similarity of ideas and expression,” i.e., no

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reasonable juror could find the extrinsic test met.

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(internal quotation marks omitted).

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2.

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However, “[s]ummary

Id.

Analysis

The parties dispute whether two dolphins crossing underwater

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is a protectable element.

Defendants argue that Plaintiff “may

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not prevent others from depicting dolphins that simply bear

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realistic features of dolphins, crossing underwater.”

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Mot. 12:4–

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Plaintiff recognizes that his “Two Dolphins” “may only

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receive ‘thin protection,’” Opp’n 9:14–15, but counters that the

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pose, attitude, perspectives, and arrangement of the two dolphins

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are protectable elements.

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dolphins’ arrangement, Plaintiff contended at the hearing that

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there is no evidence of dolphins in nature crossing in the

See id. at 10:4–6.

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As for the two

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specific pose featured in both parties’ works.
Defendants’ reply that “the only original element

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[Plaintiff] can claim that also appears in Wyland’s work is that

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the two bottlenose dolphins cross.

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depiction of actual dolphins does not amount to the ‘quantum of

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originality’ required to protect this element of Plaintiff’s

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work.” (Reply 8:3–6.)

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This generic addition to the

The main similarity between Wyland’s “Life in the Living

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Sea” and Plaintiff’s “Two Dolphins” is two dolphins swimming

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underwater, with one swimming upright and the other crossing

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horizontally.

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similarities and differences between the parties’ works).

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See Mot. 9:16–10:5 (discussing the main

But this idea of a dolphin swimming underwater is not a

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protectable element.

Much like a narwhal’s tusk, Plaintiff’s

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arguments do not help it survive in the sea of Ninth Circuit

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precedent.

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physiology are not protectable.

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Lowry, 323 F.3d 805 (9th Cir. 2003), the plaintiff asserted

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copyright protection in a glass-in-glass jellyfish sculpture.

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The Ninth Circuit held that the plaintiff “may not prevent others

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from copying aspects of his sculptures resulting from either

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jellyfish physiology or from their depiction in the glass-in-

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glass medium,” since the sculptures combined several

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unprotectable elements, including jellyfish with tentacles or

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bells, jellyfish in bright colors, and jellyfish swimming

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vertically.

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Co., the Ninth Circuit held: “No copyright protection may be

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afforded to the idea of producing stuffed dinosaur toys or to

In the Ninth Circuit, natural positioning and

Id. at 810–11.

For instance, in Satava v.

Similarly, in Aliotti v. R. Dakin &

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elements of expression that necessarily follow from the idea of

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such dolls.”

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S. Chen Corp. v. Cadona Int’l, Inc., 266 F. App’x 523, 524 (9th

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Cir. 2008) (finding the concept of “a ‘cute’ dolphin—with an open

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mouth and an uplifted, twisted tail which made it appear to be

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swimming—” is an unprotectable element); Florentine Art Studio,

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Inc. v. Vedet K. Corp., 891 F. Supp. 532, 537 (C.D. Cal. 1995)

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(finding in part that the idea of three dolphins jumping or

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leaping is unprotectable).

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831 F.2d 898, 901 (9th Cir. 1987); see also George

Moreover, Plaintiff has “failed to identify any elements” of

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his work “that are not commonplace or dictated by the idea of

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[two] swimming dolphin[s].”

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at 524.

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“necessarily follow[s] from the idea of” two dolphins swimming

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together.

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both works results from dolphin physiology and behavior since

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dolphins are social animals, they live and travel in groups, and

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for these reasons, they are commonly depicted swimming close

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together.

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Tyrannosaurus stuffed toy’s open mouth was an unprotectable

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element, since Tyrannosaurus “was a carnivore and is commonly

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pictured with its mouth open”).

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could find substantial similarity of ideas and expression, since

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the similarities between Plaintiff’s “Two Dolphins” and Wyland’s

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“Life in the Living Sea” are unprotectable elements.

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George S. Chen Corp., 266 F. App’x

The concept of two dolphins crossing underwater

Id.

Specifically, the cross-dolphin pose featured in

See Aliotti, 831 F.2d at 901 n.1 (explaining that a

Therefore, no reasonable juror

Plaintiff also argues there is evidence of direct copying.

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Opp’n 12:21–14:1.

At the hearing, he contended that this is a

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case of tracing.

However, Plaintiff’s Exhibit 12 shows a 300%
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enlargement of “Two Dolphins” over a different painting, and

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Frank McGrath’s Expert Report, Exhibit 5, compares “Two Dolphins”

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and a different painting that is not at issue in this portion of

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Defendants’ motion.

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parties’ works, it focuses on the dolphins’ general outlines,

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which is an unprotectable element, and “a [single] point of

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intersection of the two dolphins” in Plaintiff’s work, which

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Plaintiff focused on at the hearing.

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evidence of direct copying is insufficient to establish the

While Plaintiff’s Exhibit 13 compares the

Overall, this purported

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presence of a genuine dispute of material fact on the copying

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issue.

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this portion of their motion.

Therefore, summary judgment for Defendants is proper on

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III.

ORDER

For the reasons set forth above, the Court GRANTS

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Defendants’ Motion for Summary Judgment on Plaintiff’s first

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claim for relief for copyright infringement as to the painting by

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Wyland entitled “Life in the Living Sea” of Plaintiff’s First

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Amended Complaint.

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IT IS SO ORDERED.
Dated: April 6, 2016

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