This is a story about two works of art designed to appeal to the dolphin lover that lives within each of us. The plaintiff’s (on the left in the accompanying image) is in pen and ink; the defendant’s (on the right) is a full-color painting. Each depicts two dolphins in an open sea, with one swimming (more or less) vertically, and the other (more or less) horizontally, nestling past each other with apparent fishy affection. (Yes, I know dolphins are mammals, but "fishy" sounds better.) Are they lovers? Siblings? Friends? The artists leave that to our imagination. (Please forgive the poor image quality. These are taken from the complaint. You can see the defendant's work in full color here.)
Last week, the Ninth Circuit affirmed the lower court's dismissal of the case on summary judgment, holding 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."
This case presents another example of the "idea-expression" dichotomy in action, a principle which is fundamental to copyright law (and embedded in the statute itself). Copyright law does not allow a single creator to hold a monopoly on the depiction of concepts and ideas; instead, copyright protection is limited to the original way in which a creator brings to life those concepts and ideas. Ideas are free for all to use, repurpose, and "make our own." Or, to say it more simply: copyright law does not protect ideas; it protects only the original way that an artist expresses those ideas. While easy to state, this principle sometimes can be difficult to apply in practice.
Despite the similarity between the way that the dolphins are depicted in each work, there is no question that the court got this one right. However, we should be careful not to take away from the court's holding that "things found nature are not protectable under copyright." That is just plain wrong. There are an infinite number of ways that any particular "idea" found in nature can be brought to life by artists with sufficient originality to merit protection under copyright law. As the Ninth Circuit notes "[a]n artist may obtain a copyright by varying the background, lighting, perspective, animal pose, animal attitude, and animal coat and texture, but that will earn the artist only a narrow degree of copyright protection." Indeed, a careful analysis of the two works at issue here illustrates many differences in the way that each artist chose to depict the concept of "two dolphins crossing."