27 February, 2018

Doesn't Pose a Threat - Can You Have Copyright in a Pose?

The arrangement of a picture can hugely affect its effect on the viewer, and potentially its artistic merit. This includes the various poses that any subjects in the picture have, which often are intended to convey certain emotions, thoughts and commentary the artist had in mind. We discussed the potential rights that one might have in yoga poses some time ago, and after a recent action in the US courts, a similar case has pushed its way into the Court of Appeal. In the light of this, can you have copyright in poses?

The case of Folkens v Wyland Worldwide LLC concerned an illustration created by Mr Folkens titled "Two Tursiops Truncatus" or otherwise known as "Two Dolphins", in the late 1970s. In the illustration two dolphins cross each other in an underwater scene, one swimming vertically and the other horizontally. No other marine animals are in the illustration. Mr Wyland created his own work in 2011 titled "Life in the Living Sea", which consisted of an underwater scene, including three dolphins, two of which cross each other similarly to Mr Folken's work, and other marine animals and flora. Having learned of Mr Wyland's work sometime after its creation, Mr Folkens took him to court for copyright infringement.

The matter hinged on whether the pose exhibited by the two dolphins could be protected by copyright.

As set out in Feist (discussed more here), to prove infringement the claimant has to show "…ownership of a valid copyright and the copying of constituent elements of the work that are original". Should no evidence exist as to copying, a claimant can prove this by showing "…that the defendant had access to the plaintiff's work and that the two works are substantially similar". The defendant agreed that they had access to the work, but contended that they were not substantially similar.

Tom's poses were always on point
For there to be copying, the Court did first have to assess whether the two dolphins crossing element would be one that can be protected. What also plays an element in this is whether the pose struck by the dolphins is one that could occur in nature.

Judge Gould, handing down the Court's judgment, set out that "…ideas, first expressed in nature, are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them". This would arguably include the natural movements of dolphins. They did, however, emphasise that, as was set in Satava v Lowry, "…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". This generally would exclude depictions of ideas first expressed by nature, but any original expression contributed to these ideas could potentially be protected, albeit narrowly.

 The Court concluded that, following the above, a depiction of two dolphins crossing under sea, one in a vertical posture and the other in a horizontal posture, is an idea first expressed in nature and as such is within the common heritage of humankind. The behavior exhibited in the image is something that social animals such as dolphins would normally do. Other examples would be ants marching in a straight line or birds flying in a V-shape.

The rights held by Folkens are much narrower than what is sought, i.e. in a very specific expression of the natural behavior. In his image this includes "…the [dolphins'] exact positioning, the stippled light, the black and white depiction, and other specific and unique elements of expression". His rights were not infringed by Wyland by exhibiting the same behavior in a different setting.

The Court therefore dismissed the appeal, and upheld the District Court's summary judgment on the matter.

The case is by no means ground-breaking, but does illustrate the difficulty in protecting common, natural elements, such as poses and animal behavior. The more common the pose, the harder it is to protect it, albeit it is possible via the unique expression of that idea.

Source: Written Description

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