Folkens v. Wyland Worldwide, LLC, No. 16-15882 (9th Cir. 2018)Annotate this Case
The 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.
The court issued a subsequent related opinion or order on February 13, 2018.