|Folkens (left) v. Wyland (right)|
The differences between these two are relatively clear: coloring, "lighting," background, and so forth. But there are undeniable similarities, and the primary similarity is the dolphin "pose," which is strikingly similar. It is this similarity (and the Ninth Circuit's treatment of it) that I'd like to explore. Nothing in this analysis, however, should be taken to mean that I think Folkens should necessarily win here. My concern is only with how the court got there, as I discuss below.
This is all a form of non-literal copying, but the discussion begins with Burrow-Giles Litho. v. Sarony, which was a literal copying case. The question there was whether a photograph could be copyrighted. The court said yes. In particular,
plaintiff made the same . . . entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression….This posing and other creative choice was sufficient to provide original expression. Professor Justin Hughes points out in his work that Sarony was well known for posing his subjects.
After Burrow-Giles comes Gross v. Seligman, in which a photographer recreated a photograph some years later (the facts are a bit more complicated – the photographer sold the copyright and then recreated his own work – but the holding doesn’t depend on the particular facts). The court ruled that though there were differences between the pictures, the identical poses were enough to render the second a copy of the first.
The identity of the artist and the many close identities of pose, light, and shade, etc., indicate very strongly that the first picture was used to produce the second. …. The eye of an artist or a connoisseur will, no doubt, find differences between these two photographs. The backgrounds are not identical, the model in one case is sedate, in the other smiling; moreover the young woman was two years older when the later photograph was taken, and some slight changes in the contours of her figure are discoverable. But the identities are much greater than the differences, and it seems to us that the artist was careful to introduce only enough differences to argue about, while undertaking to make what would seem to be a copy to the ordinary purchaser who did not have both photographs before him at the same time. In this undertaking we think he succeeded.This sounds like the photos were nearly identical, but a look at the actual photos shows that they weren’t that close. The backgrounds were different, the lighting was somewhat different, the model was posed with the cherry, and so forth. In other words, they were no more similar than, say, the dolphins in the images above.
|Rogers (photo) v. Koons (sculpture)|
The court ruled that the posed dogs were protected, even when the other photographic elements were stripped away:
Defendants do not challenge plaintiff's ownership of a valid copyright, but assert instead that the portion of Rogers' work allegedly infringed was not an original work of authorship protected under the 1976 Copyright Act. Since the law protects authors' exclusive rights to their works, the cornerstone of that law is that the work protected must be original. … Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved [citing Burrow-Giles]. To the extent that these factors are involved, "Puppies" is the product of plaintiff's artistic creation. Rogers’ inventive efforts in posing the group for the photograph, taking the picture, and printing "Puppies" suffices to meet the original work of art criteria.We now come to the core of the defense here: can one protect a pose that’s simple or common? Koons tried this defense, and was rebuffed:
We recognize that ideas, concepts, and the like found in the common domain are the inheritance of everyone. What is protected is the original or unique way that an author expresses those ideas, concepts, principles or processes. Hence, in looking at these two works of art to determine whether they are substantially similar, focus must be on the similarity of the expression of an idea or fact, not on the similarity of the facts, ideas or concepts themselves. It is not therefore the idea of a couple with eight small puppies seated on a bench that is protected, but rather Roger's expression of this idea — as caught in the placement, in the particular light, and in the expressions of the subjects — that gives the photograph its charming and unique character, that is to say, makes it original and copyrightable.
Thus, had appellant simply used the idea presented by the photo, there would not have been infringing copying. But here Koons used the identical expression of the idea that Rogers created; the composition, the poses, and the expressions were all incorporated into the sculpture to the extent that, under the ordinary observer test, we conclude that no reasonable jury could have differed on the issue of substantial similarity.
This brings us to Folkens. Using these cases as a backdrop, it seems like we should ask whether the dolphin pose was original, whether the accused work used similar expression, etc. One interesting feature of all these opinions is the use of light. But to my (untrained) eye, the lighting is not that similar in Gross or in Rogers. And the lighting is somewhat similar in Folkens, but the similarities are due to the way light is refracted underwater. After all, Folkens went to a great deal of trouble to pose the dolphins in the particular manner depicted:
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….But the court never gets to these types of questions. Instead, the Ninth Circuit went in another direction, holding first that pose is not ordinarily copyrightable unless combined with something else:
We note… 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.And the court goes on to rule that the dolphins posing here do not count, because dolphins may cross in nature:
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.This phrasing, to me, turns the analysis on its ear. In Rogers, surely the photographer did not create novel pose, and simply got the dogs and people to hold a position they could have assumed in nature. Even more so in Gross or Burrow-Giles, where the poses were merely of people who could easily assume the positions at issue, and in fact may have done so in the past.
Some of my colleagues describe this as a case of scenes a faire – elements common to the genre that should be free for all to use. But I wonder whether this argument proves too much. Taken to its extreme, then any pose by anyone would qualify – just about every non-radical pose is out there naturally, just waiting for someone to recreate and photograph or paint. Koons made a similar argument and lost; it wasn’t just people holding dogs--it was specific people holding specific dogs in a specific way.
The court does recognize that there could be copying if there were other similarities:
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. 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.But here is where I leave it – are the differences so stark that we can say there was no copying without resorting to a jury? The differences, to my undiscerning eye, seem no greater than the two images in Gross v. Seligman or the two works in Rogers v. Koons. As I note above, I’ve got no qualms if folks find that these two are different. But I think there are some real similarities here – enough that I’m not ready to say, “there’s nothing similar but the natural idea of crossing dolphins.”
It may be that Gross and/or Rogers are decided wrongly on the facts (something some of my colleagues have suggested), and in fact the similarities there were great enough to render the second work non-copied. However, the different framing of the legal question in these cases is difficult to square. The idea that we ignore near identical poses with near identical subjects simply because the pose might occur in nature troubles me a bit.