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."