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

Results Breakdown - Canadian Supreme Court Rules on Infringing Websites and Google Search Results

When reading this case this writer pondered what he would do in a world without Google (or search engines in general). Finding information on a web that's very close to an unrestricted space is both very useful, and can produce results you never expected, both in the good and the bad. Through the sheer power of the search engine, finding details online is quite easy, and can present an ingenius searcher with plenty of legitimate and illegitimate materials. This still poses the question: should search engines have to, or be forced to, restrict their results, to prevent the infringement of someone's rights? While this question often falls due to issues of jurisdiction, the Canadian Supreme Court endeavoured to answer it in a Canadian context only last week (with the BC Supreme Court decision having been discussed here).

The case of Google Inc. v Equustek Solutions Inc. dealt with the sale of devices that allow complex industrial equipment made by one manufacturer to communicate with complex industrial equipment made by another manufacturer. Equustek have developed, manufactured and sold such devices for some time. Former employees of Equustek, having left the company, started their own competing company, which developed and sold a similar device online, over which an injunction was granted by the Canadian courts. After a long legal battle, the respondents fled Canada and abandoned the proceedings, with Equustek subsequently pursuing Google to remove the website selling the infringing devices from their search results. Having initially received the injunction (limited only to Google.ca), Google pursued the matter further in the courts, ultimately ending up in the highest court in Canada.

What the case was all about was whether Equustek could pursue a worldwide interlocutory injunction through the Canadian courts against Google and its search results.

Initially, the Court set out the three-part test that determines whether a court should exercise its discretion to grant an interlocutory injunction: "...[1] is there a serious issue to be tried; [2] would the person applying for the injunction suffer irreparable harm if the injunction were not granted; and [3] is the balance of convenience in favour of granting the interlocutory injunction or denying it. The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case".

Google agreed that there was a serious issue to be tried; however, they presented a multitude of arguments for the Court against the injunction. This included that the injunction is not necessary nor would it be effective; a third-party should not be bound by an order on another party (and therefore be subject to the injunction); and that issuing an interlocutory injunction with extraterritorial effect would be improper.



Search results - the great unknown (Source: xkcd)

Justice Abella considered that, due to the global nature of the Internet, any injunction involving multi-national, cross-border entities like Google would have to be applied globally. In short, as the majority of Google's business happens outside of Canada "...Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were de-indexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet".

She also added that an interlocutory injunction, such as in this case, is therefore necessary to prevent the defendants' infringement online. Without Google's indexing of their site their business would not be feasible. Justice Abella also determined that there would be no issue with the freedom of expression, as no other nations' laws would be violated by the injunction.

The judge followed with the notion that this injunction would not affect Google's 'content neutral character', as it does not impose further monitoring obligations on the company, but merely the removal of the specified web addresses from its index. The same would not cause any undue expense on Google, which is something they already do for other illegal, more severe content online, and actively complies with DMCA notices over copyright infringement.

While the respondents' business can only thrive through Google's services, the court acknowledged that they are not responsible for the harm caused; however, Google has the power to end the harm by de-indexing the content. Ultimately, Justice Abella dismissed Google's appeal.

Two judges, Rowe and Côté, dissented from the majority's opinion, arguing that the injunction should not have been granted. In their view, the injunction's effects on Google would be final, with no recourse (unless to adjust its terms through the courts), and that Google is not a party to the dispute and should not be subjected to the injunction in question. Finally, the judges saw that the injunction is mandatory, with very little proven effect on its purpose, and the courts are presented with alternatives such as an asset freeze or injunctive relief against the ISPs preventing access to the website.

Ultimately, the case turns on the fact that it can open the floodgates for a stream of applications seeking similar injunctions, impacting both Google's business and the Canadian judicial system as a whole. The Court did leave the matter quite open, and this writer is confident that more applications will follow the decision, since, as the Court observed, Google already complies with similar obligations on a regular basis. Worldwide injunctions should not be a common weapon used, but an extraordinary one, so this writer does hope that the Canadian courts will restrict its application to only instances where they are truly needed.