Tuesday, January 22, 2008

Copyright Claim in Frog Croaks

The Ninth Circuit has taken a singularly restrictive approach to claims of copyright in sculptural works depicting real animals. For example, See Satava v. Lowry, 323 F.3d 805, 810 (9th Cir.2003) the court held that a glass jellyfish sculpture was unprotectible as “commonplace and typical of jellyfish physiology.” The most recent case is George S. Chen Corp. v. Cadona International, Inc., 2008 WL 152651 (9th Cir. Jan. 17, 2008). The opinion is marked not for publication, but it contains a substantial dissent by Betty Fletcher, illustrating once again the lawless of courts in attempting to deny precedential value to opinions that contain important discussions of law: if the issues were important enough for Judge Fletcher to dissent, the opinion is enough to issue as published.

Plaintiff claimed infringement of copyrights on dolphin, frog, and moon/star wind chime ornaments, and on a stand-alone frog ornament. The district court granted summary judgment to defendant; the court of appeals affirmed.

Plaintiff testified that it tried to make its works “approximately true to life,” testimony that the court of appeals seemed to be quite important, but why? There is no Platonic frog, and even among frogs, there are many different types, and among types many different looking individual specimens. Additionally, all sculptors must decide which features to emphasize, de-emphasize, delete, or add. As a parent who has bought dozens and dozens of stuffed animal toys, I can testify that even among frogs there is a wide variety to choose from, some of which are a hit at home, and others rejected.

The court placed on plaintiff, apparently, an obligation “to identify any elements of the dolphin or frog that it selected that are not commonplace or dictated by the idea of a swimming dolphin or sitting frog sculpture” According to the majority, plaintiff’s owner’s concept was

“to make a ‘cute’ dolphin-with an open mouth and an uplifted, twisted tail which made it appear to be swimming-but these features necessarily follow from the idea of a swimming dolphin.… There is no indication that the frog is anything but a stereotypical frog, sitting as a frog would sit in nature. Although a combination of unprotectable elements may qualify, [plaintiff] points to no elements that, considered together, have a sufficient quantum of originality for copyright protection. …Nor does [plaintiff] show any respect in which George Chen made choices that contributed a non-trivial, original feature. Accordingly, [plaintiff] has failed to show the quantum of originality that is required … for even thin protection.

In her dissent, Judge Fletcher noted that plaintiff’s registration entitled it, prima facie, to protection, and that defendant:

Cadona did not offer any evidence of its own to rebut that presumption, relying instead on the bare legal argument that under our decision in Satava v. Lowry, GSC's works do not merit copyright protection because they are based on items that exist in nature. 323 F.3d 805 (9th Cir.2003). Satava, which was not a summary judgment case, does not so hold. Id. at 812 (“We do not hold that realistic depictions of live animals cannot be protected by copyright.”). It is true that in Satava the court found that copyright protection for items from nature does not extend to aspects of a work “resulting from [an animal's] physiology.” Id. at 810. But this language from Satava does not empower the district court, nor this court, to act as fact-finder and arbiter of originality on summary judgment. North Coast, 972 F.2d at 1035 (“The plaintiff was entitled to have the validity of its copyright determined by a trier-of-fact.”).

Even if Cadona had carried its burden on summary judgment-and it did not-contrary to the majority's suggestion, [plaintiff] placed in the record a declaration from [plaintiff’s- president identifying artistic choices made in creating the ornaments sufficient to raise a triable issue of fact on originality. …

The majority apparently shares the district court's subjective opinion that the plaintiff's works are simply too “stereotypical” to warrant copyright protection. Maj. op. at 2. But the Copyright Act does not allow copyright registrations to be invalidated on nothing more than a failure to conform to a particular judge's idiosyncratic notions of creativity. An artist or craftsperson can create a work based on an animal using his skill and artistry and imagination that is “original.” He can copyright his creation. And if a defendant makes an exact copy of that work, that artist is entitled to have a jury decide whether or not his work is original enough. I respectfully dissent.

Without having seen the works oneself, it is not possible to take sides, but in the abstract, Judge Fletcher states the better case.


Anonymous said...

three thoughts.

1. as the folks at Fark might say, ttiwwp. I did some searching this morning and I can't find any images of cadona dolphins. The closest I came was this miniature panda business card holder for sale at the San Diego Zoo:


However, George S. Chen has done a better job of marketing its products on the internet. Here is a site displaying a line of their dolphin figurines:


The frogs are there too. And not that this should be the standard necessary to establish copyright protection, but I don't think any of this stuff is ever going to go on display at the MOMA. To my eyes at least, all of it falls into the category of sculptural work that I would classify as "crap." This is the stuff your great-aunt's house is full of when she dies, and you throw it all away after the estate sale because nobody bought it and your wife won't allow it in your house.

2. If both plaintiff and defendant are copying nature, and reach a similar result, as was the situation in the jellyfish case, then no copyright protection should attach when one sculpture resembles the other. I think the 9th circuit is exactly right- if your art is an attempt to make an exact reproduction of something that occurs in nature, there is no public policy argument that can support preventing others from attempting the same thing.

Put another way, just becuase Georgia O'Keefe painted a lot of flowers should not mean that nobody else can give it a shot. My read is that Plaintiff claimed that he had an exclusive and comprehensive license to bar any other attempts to create realistic dolphin sculputres, which is such obvious nonsense that it hardly bears discussion.

3. If defendant simply cast their dolphin figurines from the same molds produced by plaintiff, or used one of plaintiff's figurines to create a mold and produced exact copies, I would agree that the dissent has a point, and perhaps the case should have come out differently. But the majority has clearly decided that's not what happened, and in the absence of clear evidence to the contrary, I don't think the dissent provides a convincing argument why we shouldn't simply take them at their word.

Either the figures are exact copies, or they are not. Casual inspection should be enough to determine which is true. If they're not exact copies, SJ for defendant.

William Patry said...

Tekel, thanks for your extensive comments and research, which far exceeds the modest posting itself.

Anonymous said...

I can understand (and support) tekel's comments to an extent, but IMO the impact of this case's public fallout is greater than the ruling and (non) publication of dissent. It would be all too easy for the popular press to run with this as "proof that anything with an animal in it is non-protectable", which with due acceptance of tekel's position is clearly not true - Mattel relies on the notion that "Barbie" is not simply an anatomical depiction of a mammal and Damian Hurst's shark is not simply a dead fish in a box (OK, to some it is...)

I can't believe that either the position or the underlying intent of the ruling was to remove protection from anything based on nature or physiology, and without transcripts I have to assume that the decision was on the point of law rather than the 'accuracy of the frog'. It seems to me that copyright law has a glitch, or at least a fuzzy patch, when deciding how the protection of one artist extends to the control of others where the original work contains "creativity" but is also a commonplace idea likely to be executed similarly by others but without specific intent to infringe. Creativity can repeat itself without needing derivation.

Drawing away from the frogs for a second, would the same argument not apply as used in photography - you can take an image of the NYC skyline and copyright it, thereafter I can take a shot from the same location and copyright mine too - the intent to infringe isn't present, only a visual similarity in our works because of the "accuracy" of our representations of the real vista. The point is not "do they look the same?" but "did I derive my work from your photograph, or the city?"

In other words, was it "a" frog, or "the" frog?

William Patry said...

DM, your distinction between "the" and "a" is what I was referring as the Platonic frog ("the" frog).

Ampersand said...

The cause of candor would be furthered if courts had a new category of unpublished opinion called:


Anonymous said...

vincent - I believe the category you're alluding to is called 'Jurispetulance'.

Andrew Oh-Willeke said...

So does this destroy protection for the cutsie pop songs with extended riffs comprised of samples of dogs barking?

Anonymous said...

This is ridiculous- All us wholesalers know that George Chen rips some of his designs from DWK Corporation. (Now THEY have some good "crap" on their site!)

Anonymous said...

I was one of the appellant's counsel.

In answer to several posts, yes the evidence (and the finding at the trial court level) was that Cadona exactly duplicated GSC's figurines.

David Cooper