CITE: 2003 U.S. App. LEXIS 5380 
CMON: March 2003
PLAIN: Richard Satava
DEFND: Christopher Lowry, Christopher Richards
COURT: United States Court of Appeals for the Ninth Circuit  
DATE: March 20, 2003
Appeal from the United States District Court for the Eastern District
of California. D.C. No. CV-01-00701-GEB. Garland E. Burrell, District
Judge, Presiding.  

  Copyright is very narrow for artworks of natural objects.  An original
  combination of numerous uncopyrightable elements may be copyrightable.

JUDGE: GOULD, Circuit Judge

Barry G. Silverman and Ronald M. Gould, Circuit Judges, and Charles R.
Weiner, Senior District Judge. Opinion by Judge Gould. The Honorable
Charles R. Weiner, Senior United States District Judge for Eastern
Pennsylvania, sitting by designation. 


In the Copyright Act, Congress sought to benefit the public by encouraging
artists' creative expression. Congress carefully drew the contours of
copyright protection to achieve this goal. It granted artists the exclusive
right to the original expression in their works, thereby giving them a
financial incentive to create works to enrich our culture.  {n1}  But it
denied artists the exclusive right to ideas and standard elements in their
works, thereby preventing them from monopolizing what rightfully belongs to
the public. In this case, we must locate the faint line between unprotected
idea and original expression in the context of realistic animal sculpture.
We must decide whether an artist's lifelike glass-in-glass sculptures of
jellyfish are protectable by copyright. Because we conclude that the
sculptures are composed of unprotectable ideas and standard elements, and
also that the combination of those unprotectable elements is unprotectable,
we reverse the judgment of the district court.


Plaintiff Richard Satava is a glass artist from California. In the late
1980s, Satava was inspired by the jellyfish display at an aquarium. He
began experimenting with jellyfish sculptures in the glass-in-glass medium
and, in 1990, began selling glass-in-glass jellyfish sculptures.  The
sculptures sold well, and Satava made more of them. By 2002, Satava was
designing and creating about three hundred jellyfish sculptures each month.
Satava's sculptures are sold in galleries and gift shops in forty states,
and they sell for hundreds or thousands of dollars, depending on size.
Satava has registered several of his works with the Register of Copyrights.
Satava describes his sculptures as "vertically oriented, colorful, fanciful
jellyfish with tendril-like tentacles and a rounded bell encased in an
outer layer of rounded clear glass that is bulbous at the top and tapering
toward the bottom to form roughly a bullet shape, with the jellyfish
portion of the sculpture filling almost the entire volume of the outer, 
clear-glass shroud." Satava's jellyfish appear lifelike. They resemble the
pelagia colorata that live in the Pacific Ocean:

                          [SEE PHOTO IN ORIGINAL]

During the 1990s, defendant Christopher Lowry, a glass artist from Hawaii,
also began making glass-in-glass jellyfish sculptures. Lowry's sculptures
look like Satava's, and many people confuse them:

                          [SEE PHOTO IN ORIGINAL]

In Hawaii, Satava's sculptures have appeared in tourist brochures and art
magazines. The sculptures are sold in sixteen galleries and gift shops,
and they appear in many store windows. Lowry admits he saw a picture of
Satava's jellyfish sculptures in American Craft magazine in 1996. And he
admits he examined a Satava jellyfish sculpture that a customer brought
him for repair in 1997.

Glass-in-glass sculpture is a centuries-old art form that consists of a
glass sculpture inside a second glass layer, commonly called the shroud.
The artist creates an inner glass sculpture and then dips it into molten
glass, encasing it in a solid outer glass shroud. The shroud is malleable
before it cools, and the artist can manipulate it into any shape he or 
she desires.

Satava filed suit against Lowry accusing him of copyright infringement.
Satava requested, and the district court granted, a preliminary injunction,
enjoining Lowry from making sculptures that resemble Satava's.  {n2}
Lowry appealed to us.


A preliminary injunction must be affirmed on appeal unless the district
court (1) abused its discretion or (2) based its decision on an erroneous
legal standard or on clearly erroneous findings of fact. United States v.
Peninsula Communications, Inc., 287 F.3d 832, 839 (9th Cir. 2002). We hold
that the district court based its decision on an erroneous legal standard,
so we reverse.  Copyright protection is available for "original works of
authorship fixed in any tangible medium of expression, now known or later
developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device."
17 U.S.C. Section 102(a). Copyright protection does not, however, "extend
to any idea, procedure, process, system, method of operation, concept,
principle, or discovery ...." 17 U.S.C. Section 102(b).

Any copyrighted expression must be "original".  Feist Pubs., Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340, 345, 113 L. Ed. 2d 358, 111 S. Ct.
1282 (1991). Although the amount of creative input by the author required
to meet the originality standard is low, it is not negligible. See Feist,
499 U.S. at 362. There must be something more than a "merely trivial"
variation, something recognizably the artist's own. Three Boys Music Corp.
v. Bolton, 212 F.3d 477, 489 (9th Cir. 2000).

The originality requirement mandates that objective "facts" and ideas are
not copyrightable. Baker v. Selden, 101 U.S. (11 Otto) 99, 25 L. Ed. 841
(1879); Feist, 499 U.S. at 347; Roth Greeting Cards v. United Card Co.,
429 F.2d 1106, 1109-10 (9th Cir. 1970). Similarly, expressions that are
standard, stock, or common to a particular subject matter or medium are
not protectable under copyright law. n3 See v. Durang, 711 F.2d 141, 143
(9th Cir. 1983).

It follows from these principles that no copyright protection may be
afforded to the idea of producing a glass-in-glass jellyfish sculpture
or to elements of expression that naturally follow from the idea of such
a sculpture. See Aliotti v. R. Dakin & Co., 831 F.2d 898, 901 (9th Cir.
1987) ("No copyright protection may be afforded to the idea of producing
stuffed dinosaur toys or to elements of expression that necessarily
follow from the idea of such dolls."). 

Satava may not prevent others from copying aspects of his sculptures
resulting from either jellyfish physiology or from their depiction in
the glass-in-glass medium. See id. ("Appellants therefore may place no
reliance upon any similarity in expression resulting from either the
physiognomy of dinosaurs or from the nature of stuffed animals.").

Satava may not prevent others from depicting jellyfish with tendril-like
tentacles or rounded bells, because many jellyfish possess those body
parts. He may not prevent others from depicting jellyfish in bright
colors, because many jellyfish are brightly colored. He may not prevent
others from depicting jellyfish swimming vertically, because jellyfish
swim vertically in nature and often are depicted swimming vertically.
{n4}  See id. at 901 n.1 (noting that a Tyrannosaurus stuffed animal's
open mouth was not an element protected by copyright because Tyrannosaurus
"was a carnivore and is commonly pictured with its mouth open").
Satava may not prevent others from depicting jellyfish within a clear
outer layer of glass, because clear glass is the most appropriate setting
for an aquatic animal. See id. (noting that a Pterodactyl stuffed animal's
depiction as a mobile hanging from the ceiling was not protectable
because Pterodactyl "was a winged creature and thus is appropriate for
such treatment"). He may not prevent others from depicting jellyfish
"almost filling the entire volume" of the outer glass shroud, because
such proportion is standard in glass-in-glass sculpture. And he may not
prevent others from tapering the shape of their shrouds, because that
shape is standard in glass-in-glass sculpture.

Satava's glass-in-glass jellyfish sculptures, though beautiful, combine
several unprotectable ideas and standard elements. These elements are part
of the public domain. They are the common property of all, and Satava may
not use copyright law to seize them for his exclusive use.

It is true, of course, that a combination of unprotectable elements may
qualify for copyright protection. Apple Computer, Inc. v. Microsoft Corp.,
35 F.3d 1435, 1446 (9th Cir. 1994); United States v. Hamilton, 583 F.2d
448, 451 (9th Cir. 1978) (Kennedy, J.) ("[O]riginality may be found
in taking the commonplace and making it into a new combination or
arrangement."). See also Metcalf v. Bochco, 294 F.3d 1069, 1074 ("The
particular sequence in which an author strings a significant number of
unprotectable elements can itself be a protectable element. Each note in
a scale, for example, is not protectable, but a pattern of notes in a tune
may earn copyright protection."). But it is not true that any combination
of unprotectable elements automatically qualifies for copyright protection.
Our case law suggests, and we hold today, that a combination of
unprotectable elements is eligible for copyright protection only if those
elements are numerous enough and their selection and arrangement original
enough that their combination constitutes an original work of authorship.
See Metcalf, 294 F.3d at 1074; Apple Computer, Inc., 35 F.3d at 1446. See
also Feist, 499 U.S. at 358 ("[T]he principal focus should be on whether
the selection, coordination, and arrangement are sufficiently original 
to merit protection.").

The combination of unprotectable elements in Satava's sculpture falls short
of this standard. The selection of the clear glass, oblong shroud, bright
colors, proportion, vertical orientation, and stereotyped jellyfish form,
considered together, lacks the quantum of originality needed to merit
copyright protection. See Hamilton, 583 F.2d at 451 ("Trivial elements of
compilation and arrangement, of course, are not copyrightable because they
fall below the threshold of originality."). These elements are so commonplace
in glass-in-glass sculpture and so typical of jellyfish physiology that 
to recognize copyright protection in their combination effectively would
give Satava a monopoly on lifelike glass-in-glass sculptures of single
jellyfish with vertical tentacles. See Feist, 499 U.S. at 363 (noting that
the selection, coordination, and arrangement of phone numbers in a
directory "is not only unoriginal, it is practically inevitable"). Because
the quantum of originality Satava added in combining these standard and
stereotyped elements must be considered "trivial" under our case law,
Satava cannot prevent other artists from combining them. {n5}
We do not mean to suggest that Satava has added nothing copyrightable to
his jellyfish sculptures. He has made some copyrightable contributions:
the distinctive curls of particular tendrils; the arrangement of certain
hues; the unique shape of jellyfishes' bells. To the extent that these
and other artistic choices were not governed by jellyfish physiology or
the glass-in-glass medium, they are original elements that Satava
theoretically may protect through copyright law.  Satava's copyright on
these original elements (or their combination) is "thin", however,
comprising no more than his original contribution to ideas already in
the public domain. Stated another way, Satava may prevent others from
copying the original features he contributed, but he may not prevent
others from copying elements of expression that nature displays for all
observers, or that the glass-in-glass medium suggests to all sculptors.
Satava possesses a thin copyright that protects against only virtually
identical copying. See Ets-Hokin, 2003 U.S. App. LEXIS 4510, F.3d at
(9th Cir. 2003) ("When we apply the limiting doctrines, subtracting the
unoriginal elements, Ets-Hokin is left with ... a 'thin' copyright,
which protects against only virtually identical copying."); Apple,
35 F.3d at 1439 ("When the range of protectable expression is narrow,
the appropriate standard for illicit copying is virtual identity.").

We do not hold that realistic depictions of live animals cannot be
protected by copyright. In fact, we have held to the contrary. See
Kamar Int'l, Inc. v. Russ Berrie and Co., 657 F.2d 1059, 1061 (9th
Cir. 1981). We recognize, however, that the scope of copyright protection
in such works is narrow. See Herbert Rosenthal Jewelry Corp. v. Kalpakian,
446 F.2d 738, 741 (9th Cir. 1971) ("Any inference of copying based upon
similar appearance lost much of its strength because both [works] were
lifelike representations of a natural creature."). Nature gives us ideas
of animals in their natural surroundings: an eagle with talons extended
to snatch a mouse; a grizzly bear clutching a salmon between its teeth;
a butterfly emerging from its cocoon; a wolf howling at the full moon;
a jellyfish swimming through tropical waters. These ideas, first expressed
by nature, are the common heritage of humankind, and no artist may use 
copyright law to prevent others from depicting them.

An artist may, however, protect the original expression he or she
contributes to these ideas. An artist may vary the pose, attitude,
gesture, muscle structure, facial expression, coat, or texture of
animal. An artist may vary the background, lighting, or perspective.
Such variations, if original, may earn copyright protection. Because
Satava's jellyfish sculptures contain few variations of this type, the
scope of his copyright is narrow.

We do not mean to short-change the legitimate need of creative artists
to protect their original works. After all, copyright law achieves its
high purpose of enriching our culture by giving artists a financial
incentive to create. But we must be careful in copyright cases not to
cheat the public domain. Only by vigorously policing the line between
idea and expression can we ensure both that artists receive due reward 
for their original creations and that proper latitude is granted other
artists to make use of ideas that properly belong to us all.



{n1} Justice Potter Stewart explained this feature of copyright law: "The
immediate effect of our copyright law is to secure a fair return for an
'author's' creative labor. But the ultimate aim is, by this incentive, to
stimulate artistic creativity for the general public good."
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

{n2} The injunction prevented Lowry from making or selling sculptures with
"a vertically oriented, colorful, fanciful jellyfish with tendril-like
tentacles and a rounded bell encased in an outer layer of rounded clear glass 
that is bulbous at the top and tapering toward the bottom to form roughly
a bullet shape, with the jellyfish portion of the sculpture filling almost
the entire volume of the outer, clear glass shroud."

{n3} Standard elements sometimes are called "scenes a faire", vaguely
French for "scenes which 'must' be done".  Ets-Hokin v. Skyy Spirits,
Inc., 225 F.3d 1068, 1082 n.17 (9th Cir. 2000). The Ninth Circuit treats
scenes a faire as a defense to infringement rather than as a barrier
to copyrightability. Id. See also Ets-Hokin v. Skyy Spirits, Inc.,
2003 U.S. App. LEXIS 4510, F.3d (9th Cir. 2003) (reviewing the district
court's decision after remand).

{n4} Vertical orientation is a standard element partly because human
beings prefer the world right-side-up.

{n5} We reach this conclusion based in part on our examination of the
dozens of photographs of glass-in-glass jellyfish sculptures in the
record. Some of the sculptures depict almost colorless jellyfish. Some of
the sculptures have spherical shrouds. Some have shrouds encased in opaque
black glass with clear windows cut through.  Though none of the sculptures
are identical, all of them are substantially similar. They differ only
insofar as an artist has added or omitted some standard element. To give
Satava a copyright on this basic combination of elements would effectively
give him a monopoly on the idea of glass-in-glass sculptures of single
vertical jellyfish. Congress did not intend for artists to fence off
private preserves from within the public domain, and, if we recognized
Satava's copyright, we would permit him to do exactly that.  Our analysis
above suggests that the "merger doctrine" might apply in this case. Under
the merger doctrine, courts will not protect a copyrighted work from
infringement if the idea underlying the copyrighted work can be expressed
in only one way, lest there be a monopoly on the underlying idea. CDN Inc.
v. Kapes, 197 F.3d 1256, 1261 (9th Cir. 1999). In light of our holding
that Satava cannot prevent other artists from using the standard and 
stereotyped elements in his sculptures, or the combination of those
elements, we find it unnecessary to consider the application of the
merger doctrine.