Friday, October 06, 2006

Mountain Lion Expert

A September 25th opinion from the District of Arizona, Dyer v. Napier, 2006 WL 2730747, demonstrates the continuing problems with the admissibility of expert testimony. At issue was whether a sculptor had infringed a photographer. Defendant offered someone who was neither a photographer nor a sculptor, but a business person who had represented photographers in licensing their works. That might be fine if she was being offered as an expert on damages, but she wasn't. She was retained to "evaluate and identify any copyrightable element" and "provide an opinion as to whether there were more similarities than differences" between the two works. Access had been conceded.

There is no room for expert testimony on such issues regardless of the facts. The danger is admitting the terstimony was played out when the expert's testimony was used as the basis for granting defendant's motion for summary judgment. For those who dislike the Satava jellfish opinion from the Ninth Circuit, this case will be your worst fear. Here is the relevant part from the court's opinion. Ms Kinne is the expert:

"Applying Satava here, it is clear that the image of a mother mountain lion perched on a rock with a kitten in her mouth is an idea “first expressed by nature” that is “the common heritage of humankind, and no artist may use copyright law to prevent others from depicting [it]” ( id.). See Dkt. 57, Exh. 7. As a result, Plaintiffs cannot prevent Defendants from any copying aspect of the mother mountain lion or kitten that naturally result from the physiology of mountain lions. See id. at 811 (plaintiff may not prevent others from depicting the body parts of jellyfish); Aliotti, 831 F.2d at 901 (“Appellants therefore may place no reliance upon any similarity in expression resulting from ··· the physiognomy of dinosaurs····”). Moreover, Plaintiffs may not prevent Defendants from depicting a mother mountain lion perched on a boulder with a kitten in her mouth, because, as Plaintiffs concede (dkt. 57 at pp. 4-11), mother mountain lions in nature instinctively carry their kittens with their mouths. See Satava, 323 F.3d at 811 (plaintiff may not prevent others from depicting jellyfish swimming vertically because jellyfish swim vertically in nature); Aliotti, 831 F.2d at 901 n. 1 (noting that a Tyrannosaurus stuffed animal's open mouth was not an element protected by copyright because Tyrannosaurus “was a carnivore and is commonly pictured with its mouth open”).


Plaintiffs concede that Satava applies here because there is no variation between an actual, alive mother mountain lion holding her kitten and the Mother Mountain Lion Photo. See dkt. 57 at pp. 19-20.*9 The Court rejects Plaintiffs' argument that work associated with getting the mountain lions into the “ideal pose” is a protectable element (dkt. 62 at 7, 15), because they have not demonstrated that the poses struck by both the mother mountain lion and the kitten are original and were created by Plaintiff Dyer, rather than naturally occurring poses created and displayed by nature. To the contrary, both Plaintiff Dyer and Troy Hyde admit that it is natural and instinctive for a mother mountain lion to pick up and carry kittens in her mouth. See Dkt. 57, pp. 4-11. Moreover, it cannot reasonably be disputed that the poses at issue here-the mother mountain lion holding a kitten in her mouth-were necessary to the expression of the underlying idea of the protective nature of a mother mountain lion. Thus, the similarities relating to the mountain lions' poses are encompassed within the unprotectable subject matter of the Mother Mountain Lion Photo. See Satava, 323 F.3d at 811-12.While Satava's holding dictates that the subject matter of Plaintiffs' Mother Mountain Lion Photo-a mother mountain lion perched on a boulder with a kitten in her mouth-is not copyrightable, Plaintiffs' original contributions to the Mother Mountain Lion Photo enjoy a “thin” copyright that comprises “no more than his original contribution to ideas already in the pubic domain.” Id. at 812. Given the evidence presented in this case, it is clear that the protectable elements of Plaintiffs' Mother Mountain Lion Photograph are the following: the choice of location ( i.e., the mountains of Montana), background ( i.e., snow-covered mountains, forest of trees, and blue sky), perspective, lighting/shading, timing, angle, framing, film, and camera. See Dkt. 1, Ex. B; Dkt. 62 at 10. In this case, however, all of the similarities in expression between the two works at issue consist of unprotectable elements or themes that flow predictably from the underlying subject matter. See supra at 14-15; compare Dkt. 1, Ex. B with Dkt. 1, Exs. C-I. Plaintiffs have not presented any evidence (and do not contend) that Defendants' Precious Cargo sculpture is similar with respect to the choice of location, background, perspective, lighting/shading, timing, angle, framing, film, or camera. Nor have Plaintiffs shown that the attitude, gesture, muscle structure, facial expression, coat, and texture of the mother mountain lion and her kitten are original features contributed by Plaintiff Dyer, rather than expressions and features displayed by mountain lions in nature for all observers. See Satava, 323 F.3d at 813 (an eagle with talons extended to catch a mouse is an idea nature provides of animals in their natural surroundings). Because Plaintiffs have failed to produce evidence that would permit a reasonable jury to find that Plaintiffs have satisfied the extrinsic evidence test, the Court will grant summary judgment for Defendants on the issue of liability. The Court's conclusion regarding the lack of substantial similarity between protectable elements of the Mother Mountain Lion Photo and the Precious Cargo sculpture is supported by the expert opinion of Ms. Kinne. Ms. Kinne recognized that both the Mother Mountain Lion Photo and the Precious Cargo sculpture reflect the protective nature of a mother mountain lion with a kitten in her mouth, which is not protectable because mountain lions in this same pose “exist in nature and they are common to all of us.” (Dkt. 57 at p. 19.) Moreover, according to Ms. Kinne, the Precious Cargo sculpture is an artist's interpretation of mountain lions existing in nature because the rock “is a highly polished, idealized rock,” and “some of what might appear in a natural living mountain lion” has also been altered. ( Id. at pp. 19-20.) The Mother Mountain Lion Photo, by contrast, is a realistic depiction of both mountain lions in a “total scene,” including trees, the sky, and a snow-covered mountain. ( Id. at pp. 19-20.) Thus, in Ms. Kinne's opinion, the copyrightable elements of the Mother Mountain Lion Photo are “the lighting, the scene, the entire scene, the angle, and because of making those choices, his choice of film and lens,” none of which were copied by Defendant Napier in creating the Precious Cargo sculpture."

8 comments:

Anonymous said...

I agree 100% about the problems with the expert's testimony, which seems on its face to go directly to the legal questions of the case.

But, the result to me seems correct nonetheless; indeed, I wonder why the court felt the need to consider the expert's opinion at all.

William Patry said...

I will try and get pictures of both works and post them

Michael M. said...

Sorry, I'm baffled by what the problem is here. If the question is, "Do mountain lion mothers perch on a rock, holding their kittens in their mouth?", then what's wrong with expert testimony to that effect? If an expert claimed that a particular pose or positioning of the (otherwise natural) elements depicted in an artwork is wholly artificial, that would seem to give the arrangement of elements in the artwork particular consideration in determining how "thick" the copyright protection ought to be. If, on the other hand, the arrangement is naturalistic, then there's no particularly protectable quality to one artwork's depiction vs. another's.

It seems to me that expert testimony can be helpful in making that determination.

Anonymous said...

So, michael m., what you mean to say is that an expert naturalist on the issue of mountain lion behavior would be admissable. I doubt Prof. Patry would disagree with that notion. But this expert has probably never seen a mountain lion in the wild, much less holding its young.

William Patry said...

My problem is this: for infringement, experts should be permitted if at all for establsing copying; not copyrightability and certainly not substantial similarity. The mountain lion lady testified about these last two, hence my disapproval

Berne Baby, Berne said...

Having reviewed the decision, images of the two works, and some of the briefing, I can only say that the court got the issues completely wrong. The defendant sculptor admitted that he worked off the photograph to create the sculpture. I believe that the court went astray in failing to distinguish between independent creation and making a derivative work. The court made things worse by accepting the defendants' argument that finding infringement in this case would preclude anyone from depicting a mountain lion holding a cub in its mouth. However, independent creation allows anyone to create a likeness of their idea of what a mountain lion carrying a cub might look like. What you cannot do is copy the essential elements of another person's work in doing so. The photo shows the mountain lion with her rump pointed up into the air, an outstretched neck, and holding the cub over free space. The sculpture similarly depicts the mountain lion with her rump pointed up into the air, an outstretched neck, and holding the cub over free space. The sculpture has some stylistic differences but they are no greater than differences between the works at issue in Rodgers v. Koons (and in my opinion less so). This case illustrates one of the problems with Satava. Jellyfish live their lives suspended vertically in water and depend on the currents and local turbulence for their posture in water. Mountain lions are free-roaming high-level vertebrates and capable of multiple postures. An artist who wants to depict jellyfish will likely produce works that are similar to others because jellyfish have a limited number of ways of being protected. Artists who create independent works should be protected by the doctrine of merger and not by a questionable position that depecitions of "natural things" have inherently weak copyrights. Napier was free to to come up with his own vision for depicting a mountain lion. Instead of doing so, he copied a photograph.

William Patry said...

I have the photos of the works and will try and post them later today

Anonymous said...

what happened to the pictures?