II
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. § 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. § 102(b).
Any copyrighted expression must be “original.” Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (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, 111 S.Ct. 1282. 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, 111 S.Ct. 1282; 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.[1] 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.”).
- ↑ Standard elements sometimes are called “sc# 30# nes # 2A# 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 sc# 30# nes # 2A# faire as a defense to infringement rather than as a barrier to copyrightability. Id.See also Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 (9th Cir.2003) (reviewing the district court’s decision after remand).
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.”
