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Copyright Claim in Frog Croaks

By William Patry

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 The opinion is marked not for publication, but it contains a substantial dissent by Betty Fletcher, illustrating once again the lawless of courts in attempting to deny precedential value to opinions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, [plainfitiff] 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.

Full post as published by The Patry Copyright Blog on January 22, 2008 (boomark / email).