Folkens v. Wyland Worldwide, LLC, No. 16-15882 (9th Cir. 2018)
Annotate this CaseThe Ninth Circuit affirmed the district court's summary judgment in favor of defendant in an action under the Copyright Act, alleging that defendant infringed on plaintiff's pen and ink depiction of two dolphins crossing underwater. The panel applied the objective extrinsic test for substantial similarity and held 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 panel explained that when as here, the only areas of commonality are elements first found in nature, expressing ideas that nature has already expressed for all, a court need not permit the case to go to a trier of fact.
Court Description: Copyright The panel affirmed the district court’s summary judgment in favor of the defendant in an action under the Copyright Act. The plaintiff alleged that the defendant infringed on his pen and ink depiction of two dolphins crossing underwater. Applying the objective extrinsic test for substantial similarity, the panel held that this depiction was an idea that was found first in nature and was not a protectable element. Because the only area of commonality between the parties’ works was an element first found in nature, expressing ideas that nature has already expressed for all, the district court properly granted summary judgment.
The court issued a subsequent related opinion or order on February 13, 2018.
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