PIETER A. FOLKENS , DBA A Higher Porpoise Design Group v. WYLAND WORLDWIDE, LLC, a California Corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
P IETER A. FOLKENS , DBA A Higher
Porpoise Design Group,
Plaintiff-Appellant,
v.
W YLAND W ORLDWIDE, LLC, a
California Corporation; W YLAND
GALLERIES, INC ., a California
Corporation; S IGNATURE GALLERY
GROUP , INC ., DBA Wyland
Galleries, a Nevada Corporation;
(NFN) W YLAND , AKA Robert
Thomas Wyland,
Defendants-Appellees.
No. 16-15882
D.C. No.
2:14-cv-02197-
JAM-CKD
ORDER AND
OPINION
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted November 14, 2017
San Francisco, California
Filed February 13, 2018

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2 FOLKENS V. W YLAND W ORLDWIDE
Before: Ronald M. Gould and Mary H. Murguia, Circuit
Judges, and James E. Gritzner,* District Judge.
Order;
Opinion by Judge Gould
SUMMARY**
Copyright
The panel filed (1) an order withdrawing the opinion
filed February 2, 2018, and (2) a new opinion affirming 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 Honorable James E. Gritzner, United States District Judge for
the Southern District of Iowa, sitting by designation.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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FOLKENS V. W YLAND W ORLDWIDE 3
COUNSEL
Geoffrey Wm. Steele (argued), Karl Folkens, Scott D. Reep,
and Stephen Gizzi, Gizzi Reep Foley, Benicia, California,
for Plaintiff-Appellant.
Marc Dale Risman (argued), Henderson, Nevada, for
Defendants-Appellees.
ORDER
The opinion disposition filed February 2, 2018, is
withdrawn and a new opinion disposition is filed
concurrently with this order. The time for filing a petition
for rehearing or petition for rehearing en banc is calculated
from the date of the filing of this new opinion.
OPINION
GOULD, Circuit Judge:
Plaintiff Peter A. Folkens (“Folkens”) alleges that
Defendant Robert T. Wyland (“Wyland”) infringed on his
pen and ink depiction of two dolphins crossing underwater.
Folkens contends that Wyland’s depiction of an underwater
scene infringes on his drawing by copying the crossing
dolphins, and that the similar element of two dolphins
crossing underwater is protectable under copyright law,
entitling him to proceed to trial on the issue of whether
Wyland’s painting violates his copyright. We consider
whether two dolphins crossing underwater is a protectable
element under the objective standard of this Court’s extrinsic
test for substantial similarity. We hold that the depiction of

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4 FOLKENS V. W YLAND W ORLDWIDE
two dolphins crossing underwater in this case is an idea that
is found first in nature and is not a protectable element. We
note, as we did in Satava v. Lowry, 323 F.3d 805 (9th Cir.
2003), that a collection of unprotectable elements—pose,
attitude, gesture, muscle structure, facial expression, coat,
and texture—may earn “thin copyright” protection that
extends to situations where many parts of the work are
present in another work. But 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. We
affirm the district court.
I
A
Folkens states he is a “world-renowned wildlife artist,
illustrator, photographer, researcher, and author best known
for his work in the field of marine mammals.” He is the
author and copyright owner of a pen and ink illustration
titled “Two Tursiops Truncatus” also known as “Two
Dolphins,” which he created in 1979. Two Dolphins is a
black and white depiction of two dolphins crossing each
other, one swimming vertically and the other swimming
horizontally. No other subjects appear in the pen and ink
illustration. The illustration has at least one copyright
registration, VA 31-890.

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FOLKENS V. W YLAND W ORLDWIDE 5
Folken’s Two Dolphins

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Folkens alleges that in 2011 Wyland created an
unauthorized copy of Two Dolphins in a painting titled “Life
in the Living Sea.”1 Wyland’s Life in the Living Sea
painting is a color depiction of an underwater scene
consisting of three dolphins, two of which are crossing,
various fish, and aquatic plants.
1 Folkens also filed a claim for infringement based on Defendants’
sculpture known as the Wyland Dolphin, but the grant of summary
judgment in favor of Defendants on that claim is not at issue on this
appeal.

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FOLKENS V. W YLAND W ORLDWIDE 7
Wyland’s Life in the Living Sea2
2 Appellant and Appellees submitted black and white copies of
Wyland’s Life in the Living Sea to this court in their excerpts of records.

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8 FOLKENS V. W YLAND W ORLDWIDE
Folkens alleges that in total Defendants3 created enough
prints to make $4,195,250 from sales of Life in the Living
Sea. Folkens further alleges that Defendants have created
other unauthorized copies of Two Dolphins for use in
advertising on the internet. Folkens alleges that Defendants
currently display the infringing works at galleries around the
country. Folkens states that he found out about the
infringement in October 2013, and that he informed
Defendants about their infringing works on or about
September 18, 2014. This lawsuit followed.
B
The district court granted summary judgment for
Defendants after applying the Ninth Circuit’s extrinsic test
of substantial similarity to assess whether the Defendants’
work infringed Folkens’s copyright. Copyright protection
only extends to original works and the district court had to
first dissect the works, Two Dolphins and Life in the Living
Sea, to determine what elements were original and
protectable, and what elements were unprotectable. Then,
under the extrinsic test, the district court properly only
compared the works’ protectable elements to determine if
the works were substantially similar as measured by
external, objective criteria.
Both parties agree, however, that Life in the Living Sea is a color
painting. We retrieved the color depiction of the painting reproduced
above from the district court’s docket as the exhibit submitted to the
district court on summary judgment was in color. See Folkens v. Wyland
Worldwide, et al., 2:14-cv-02197-JAM-CKD, Docket 33-13, Ex. J at 2.
3 Wyland, Wyland Worldwide, LLC, Wyland Galleries, Inc, and
Signature Gallery Group, Inc., d/b/a Wyland Galleries are collectively
referred to as Defendants.

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FOLKENS V. W YLAND W ORLDWIDE 9
The district court found that “the main similarity
between Wyland’s ‘Life in the Living Sea’ and Folkens’s
‘Two Dolphins’ is two dolphins swimming underwater, with
one swimming upright and the other crossing horizontally.”
The district court concluded that “this idea of a dolphin
swimming underwater is not a protectable element” because
natural positioning and physiology are not protectable under
Ninth Circuit precedent, citing Satava. The district court
commented that “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, [dolphins] are commonly depicted
swimming close together.” The district court further found
that Folkens had not identified any elements of his work that
are not commonplace or dictated by the idea of two
swimming dolphins. The district court concluded that no
reasonable juror could find substantial similarity between
the two works because the element of similarity between
Two Dolphins and Life in the Living Sea was not a
protectable element.
II
We review a district court’s decision to grant summary
judgment de novo. L.A. Printex Indus., Inc. v. Aeropostale,
Inc., 676 F.3d 841, 846 (9th Cir. 2012), as amended on
denial of reh’g and reh’g en banc (June 13, 2012). Summary
judgment is appropriate if “there is no genuine dispute of
material fact” viewing the evidence in the light most
favorable to the nonmoving party. Id. (citing Fed. R. Civ. P.
56(a)). A genuine dispute of a material fact is “one that
could reasonably be resolved in favor of either party.”
Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

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III
Folkens concedes that the idea of dolphins swimming
underwater is not protected, but argues that his unique
expression of that idea is protected. Folkens contends that
the dolphins here do not exhibit behavior shown in nature
because the dolphins in the photos that Two Dolphins was
based upon were posed by professional animal trainers in an
enclosed environment. Folkens contends that Defendants
offered no evidence that the crossing of two dolphins in this
way occurs in nature, and that fact alone should have
precluded summary judgment.4
Defendants argue that the district court correctly
concluded that scenes found in nature, such as dolphins
crossing in the wild, are not protected by copyright laws and
that there were no protectable elements that were similar
based on the shared subject matter. Defendants further argue
that Folkens’s reliance on the fact that the dolphins were
posed is a red herring because animal trainers can pose
animals to capture positions that naturally occur in the wild.
To prove copyright infringement, a plaintiff must show:
“(1) ownership of a valid copyright and (2) copying of
constituent elements of the work that are original.” Feist
Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
(1991). The parties do not dispute that Folkens owns a valid
copyright, but instead focus on element two—whether
4 Both parties offer other arguments that are not relevant to the main
issue and this Court’s decision in this case. Folkens contends that Life
in the Living Sea is a mere enlargement of Two Dolphins, and
Defendants contend that Wyland drew dolphins crossing prior to when
Folkens created Two Dolphins.

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FOLKENS V. W YLAND W ORLDWIDE 11
Wyland copied constituent elements of the work that are
original.
Because direct evidence of copying is often not
available, a plaintiff can establish copying by showing
(1) that the defendant had access to the plaintiff’s work and
(2) that the two works are substantially similar. L.A. Printex
Indus., Inc., 676 F.3d at 846. Defendants do not contest
access to the works, but argue, among other things, that “as
a matter of law, there is no substantial similarity” between
Two Dolphins and Life in the Living Sea. We must
determine whether the two works are substantially similar.
Summary judgment is “not highly favored” on questions
of substantial similarity, but it is appropriate if we can
conclude that “no reasonable juror could find substantial
similarity of ideas and expression.” Shaw v. Lindheim,
919 F.2d 1353, 1355 (9th Cir. 1990). To determine whether
works are substantially similar, we apply a two-part test: an
extrinsic test and an intrinsic test. L.A. Printex, Indus. Inc.,
676 F.3d at 848. On summary judgment, we consider only
the extrinsic test—an objective comparison of specific
expressive elements focusing on articulable similarities
between the two works. Smith v. Jackson, 84 F.3d 1213,
1218 (9th Cir. 1996). Analytic dissection of a work and
expert testimony are appropriate for the extrinsic test. Id.
“Where a high degree of access is shown, we require a lower
standard of proof of substantial similarity.” Swirsky v.
Carey, 376 F.3d 841, 844 (9th Cir. 2004), as amended on
denial of reh’g (Aug. 24, 2004). However, “[b]ecause the
requirement is one of substantial similarity to protected
elements of the copyrighted work, it is essential to
distinguish between the protected and unprotected material
in a plaintiff’s work.” Id. at 845. “The key question always
is: Are the works substantially similar beyond the fact that

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12 FOLKENS V. W YLAND W ORLDWIDE
they depict the same idea?” Mattel, Inc. v. MGA Entm’t,
Inc., 616 F.3d 904, 917 (9th Cir. 2010), as amended on
denial of reh’g (Oct. 21, 2010).
The parties agree that the element of similarity is the two
dolphins crossing. The key inquiry is whether the crossing
dolphins are a protectable element. Swirsky, 376 F.3d at 845.
Folkens contends that his expression of two dolphins
crossing is a protectable element, while Defendants argue,
and the district court concluded, that it was a naturally
occurring element and therefore not protectable under
copyright law.
First, we observe that the fact that a pose can be achieved
with the assistance of animal trainers does not in itself dictate
whether the pose can be found in nature. For example, an
animal trainer may be used to get a dog to sit still while a
photograph is taken or a painting is done, but no one would
argue that the position of a dog sitting was not an idea first
expressed in nature. In that case, the trainer’s purpose was
not to create a novel pose, but to induce the dog to hold that
pose for a period of time. Similarly, here, the dolphin trainer
got one dolphin to swim upwards while its photo was taken,
and got another to swim horizontally while its picture was
taken. Neither of these swimming postures was novel. The
positioning of the dolphins by a trainer does not entitle
Folkens to survive summary judgment.
Further, we have held that ideas, “first expressed in
nature, are the common heritage of humankind, and no artist
may use copyright law to prevent others from depicting
them.” Satava, 323 F.3d at 813. We reaffirm that basic
principle. An 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. Id.

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FOLKENS V. W YLAND W ORLDWIDE 13
There is no question that the other aspects of Two Dolphins
and Life in the Living Sea, beyond the two dolphins
crossing, are different—Life in the Living Sea is in color,
includes a third dolphin, has different lighting, and includes
several species of fish and marine plants.
In Satava, we considered a case where a plaintiff
attempted to assert a copyright infringement claim for glass-
in-glass sculptures of jellyfish rising in the ocean. Id. at 807.
The sculpture was described as a “vertically oriented,
colorful, fanciful jellyfish with tendril-like tentacles and a
rounded bell encased in an outer layer of rounded clear glass
that is bulbous at the top and tapering toward the bottom to
form a roughly bullet shape;” the jellyfish appeared
“lifelike.” Id. We were asked to determine whether the
district court erred in enjoining the defendant from making
sculptures similar to the plaintiff’s jellyfish. Id. at 809–10.
We reasoned that the plaintiff could not prevent others from
depicting jellyfish within a clear outer layer of glass because
that was an appropriate setting for an aquatic animal and he
could not prevent others from depicting jellyfish with
tendril-like tentacles or rounded bells because many jellyfish
possess those parts. Id. at 811. More generally, we held that
no artist may use copyright law to prevent others from
depicting ideas first expressed by nature, but cautioned that
this did not mean that no realistic depiction of live animals
can be protected by copyright. Id. at 812–13. We indicated
that an artist can protect the “original expression he or she
contributes to these ideas” and “may earn copyright
protection,” but that “the scope of [his or her] copyright is
narrow.” Id. at 813.
We make a similar distinction today. We conclude that
a depiction of two dolphins crossing under sea, one in a
vertical posture and the other in a horizontal posture, is an

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idea first expressed in nature and as such is within the
common heritage of humankind. See id. No artist may use
copyright law to prevent others from depicting this
ecological idea. See id.; see also George S. Chen Corp. v.
Cadona Intern., Inc., 266 F. App’x 523, 524 (9th Cir. 2008)
(holding that an ornament of a dolphin with “an open mouth
and an uplifted, twisted tail” follows from the idea of a
swimming dolphin and is not protectable). Folkens’s Two
Dolphins arises from the fact that dolphins are social
animals, often depicted swimming in groups—as they are
found in nature. Two Dolphins also represents dolphins
swimming vertically and horizontally, ideas requiring no
stretch of the average person’s imagination because dolphins
do this in nature. Nature provides us with numerous iconic
depictions of animals: ants marching in a straight line; geese
flying in a “V” as they migrate; a mother duck being
followed by her ducklings out of a pond; a hummingbird
hovering as it sucks nectar from a flower; and bats hanging
upside down from a cave ceiling, to name a few illustrative
examples. As a general rule, under our copyright law, an
artist may not use copyright law to prevent others from
depicting such ideas first expressed by nature. See Satava,
323 F.3d at 813. The basic idea of copyright law is to protect
unique expression, and thereby to encourage expression; it
is not to give to the first artist showing what has been
depicted by nature a monopoly power to bar others from
depicting such a natural scene.
Folkens holds a thin copyright in his expression of the
two dolphins in dark water, with ripples of light on one
dolphin, in black and white, but that copyright is narrow. See
id. The protectable elements that form Folkens’s thin
copyright in Two Dolphins are not substantially similar to
Wyland’s crossing dolphins in Life in the Living Sea.
Wyland’s dolphins are in color, do not show light ripples off

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FOLKENS V. W YLAND W ORLDWIDE 15
the body of a dolphin, and the dolphins cross at different
angles. Based on our careful consideration of the total
circumstances presented, we conclude that Folkens’s thin
copyright is not infringed by Wyland’s picture.
While Folkens tries to make the argument that Wyland
copied his expression of two dolphins swimming, it is clear
from precedent that protectable expression must be more
specific than just the natural element of crossing dolphins;
here, it necessarily includes their exact positioning, the
stippled light, the black and white depiction, and other
specific and unique elements of expression. See id.
(recognizing that an artist “may, however, protect the
original expression he or she contributes to these ideas”
including “the pose, attitude, gesture, muscle structure,
facial expression, coat, or texture of [the] animal . . . and the
background, lighting, or perspective”); cf. Mattel, Inc.,
616 F.3d at 915–16 (concluding that that the concept of
depicting a young, fashionable female with exaggerated
features is unoriginal and an unprotectable idea while
particular expressions including hair, eye, and skin color,
outfit, and shoes may be protectable).
We hold that under the circumstance of this case, the
district court did not err by granting summary judgment for
Defendants because the similar element of Two Dolphins
and Life in the Living Sea, two dolphins crossing one
another, one vertical and the other horizontal, is not
protectable and the other particularities of the scene depicted
are not the same.
IV
When determining whether a copyright infringement
claim will survive summary judgment, the court must
analyze whether there is substantial similarity between the

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16 FOLKENS V. W YLAND W ORLDWIDE
works under the extrinsic test. The extrinsic test considers
only the protectable elements of a work. In Satava, we made
clear that those protectable elements could not be ideas
expressed in nature subject to a thin copyright that may
extend only to the pose, attitude, gesture, muscle structure,
facial expression, coat, or texture of the animal. Because the
depictions of two dolphins crossing here share no similarities
other than in their non-protectable elements of the dolphins
crossing, we affirm the judgment of the district court.
AFFIRMED.

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