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Vanderbilt Law Review

First Page

577

Abstract

This Article introduces a "work of nature" doctrine for copyright law. In 1903, the U.S. Supreme Court established the principle in copyright law that, while anyone can copy the original source of a copyrighted work, they cannot copy an author's copy of the original source. A century later, the U.S. Court of Appeals for the Ninth Circuit hinted at a "work of nature" exception, suggesting that even if copying the copy is restricted, copying elements of expression that nature displays for all observers is permissible. U.S. patent law excludes products of nature from protection, but this Article is the first to explore whether a similar principle should apply to copyright law. Art is often inspired by nature, but copyright must distinguish between creative human expression, which copyright intends to protect, and natural phenomena, which should remain free for all to use. This Article investigates when copyright should protect or exclude "works of nature," defined as: works created by nature, works that duplicate nature, and works inspired by nature. It reviews copyright claims involving dinosaur skeletons, jellyfish glass sculptures, bee jewelry, imitation wood flooring, taxidermy mannequins, plush animal toys, imitation landscape stones, and other expressive works of nature to highlight inconsistencies in how courts apply and analyze copyright doctrines in these cases. In some disputes, courts refuse copyright because the works of nature lack human authorship or originality, or because unprotectable ideas from nature have merged into the human expression of the works. Others grant thin copyright protection for works of nature, making it harder for copyright owners to prove actual copying or substantial similarity in infringement disputes. Conversely, some courts treat works of nature as original expressive works, granting them full copyright privileges despite their limited human creativity or originality. This Article examines the intertwined and complex doctrinal, theoretical, and policy implications of copyrighting works of nature. It critiques current judicial and administrative decisions involving works of nature, analyzes the language that courts use to describe works of nature, and classifies the range of copyright doctrines courts and administrative decisions used to reconcile works of nature with copyright law. Ultimately, this Article proposes a new judicial framework for handling copyright claims involving works of nature that better balances incentivizing human creativity inspired by nature with
preventing exclusive ownership and claims to nature's expressions.

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