From the use of copyright to combat revenge porn, to protecting slavish reproductions of public domain artworks, copyright law is sometimes invoked in circumstances where it either doesn’t, or shouldn’t, apply.1 Smith’s latest piece adds another (wonderful!) example to the growing list: the utilization of copyright to protect works that faithfully copy naturally occurring objects—from animals and flowers, to rocks and wood grain. In doing so, she sifts through a thicket of discordant case law to tease out a point of agreement: copyright protects only human contributions. This declaration should sound profoundly familiar to those following the ongoing battle between copyright and generative AI, in which the Copyright Office has explicitly limited registration to works—or the portion(s) of works—attributable to a human. Smith’s fascinating dissection of the case law surrounding copyright for natural objects demonstrates that there’s really nothing new about the copyrightability questions presented by generative AI, while her prescription for a “work of nature” doctrine offers a prospective blueprint for a “work of humans” doctrine with application far beyond the nature context.
In the 2003 case of Satava v. Lowry, the Ninth Circuit considered the copyrightability of glass-in-glass jellyfish sculptures. Ultimately, it issued an opinion that governs the copyrightability of creative works concerning natural objects today; namely, 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.” The first part of this holding—that no copyright protection extends to the idea of a glass-in-glass jellyfish sculpture—merely restates copyright’s long-standing idea-expression dichotomy, which says that copyright protects only expressions, and not mere ideas. This explains, among other things, the curiously extensive collection of young adult vampire romance novels.2
The second part of the holding—that copyright protection should additionally be withheld from any part of an expression that naturally follows from the idea—lends substantially less clarity. In its relatively short opinion, the Ninth Circuit makes several (ultimately unsatisfying, in my opinion) attempts to unpack this: They assert that copyright won’t protect any aspects of the sculptures resulting from jellyfish physiology, for example, nor their vertical depiction, as jellyfish swim vertically in nature. The court concludes that “[n]ature gives us ideas of animals in their natural surroundings…[t]hese ideas, first expressed by nature, are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them.”
Smith’s thorough, quirky, and captivating deep-dive into the jurisprudence of artists’ attempts to copyright their works created by, duplicating, or inspired by nature, demonstrates that this holding has been applied with frustrating inconsistency, to the detriment of both artists and the public. Through analysis of cases ranging from museum-grade T. rex skeletons to bejeweled bee pendants to imitation wood flooring to stuffed animals, Smith identifies three broad categories of works involving nature: (1) works created by nature, (2) works duplicating nature, and (3) works inspired by nature. The first category can be dealt with summarily: no copyright protection for, say, a piece of driftwood shaped by a river’s currents, because copyright requires a work to be created by a human being. The second category, which Smith defines as works technically authored by humans but which are, by design, exact duplicates of natural objects—such as a mold of an actual stone—presents only slightly more friction: slavish copies are typically devoid of even the modicum of creativity required for copyright protection. In other words, exact replicas of naturally-occurring phenomena don’t involve a sufficient amount of human intervention, and so they too don’t merit copyright protection.
The third category is where things get interesting, and where Smith offers an eloquent and timely intervention that urges consideration of copyright validity, actual copying, and substantial similarity. Beginning with validity, Smith reminds us that a copyrightable work must involve human creativity and something beyond what is readily observable in nature, and suggests (convincingly) that the merger doctrine can help to delineate creative choices made by a human from those dictated by nature. When it comes to claims for copyright infringement, Smith first emphasizes that copyright’s “actual copying” requirement excludes expression independently created by a defendant observing the same natural phenomena. Then and only then, should we filter out the elements owing to nature and focus on substantial similarity between the original (and additional) human-added expression(s). In so doing, she concludes, we can encourage both artistic and scientific progress while preserving the public domain of nature that belongs to all of us. Smith’s article is a fun and informative read, highly recommended for those seeking to better understand copyright law and its limitations.
- For a plethora of examples, see, e.g., Blake E. Reid, What Copyright Can’t Do, 52 Pepp. L. Rev. 519 (2025).
- By one count, at least 159 distinct titles. Goodreads, Young Adult Vampire Romance.
