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, 111 S.Ct. 1282 (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.[1]
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 v. Skyy Spirits, Inc., 323 F.3d at 766 (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
- ↑ 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.
