A first-of-its-kind case of paleontological piracy pits one group of fossil preservation experts against another over whether sculpted castings of dinosaur bones are sufficiently original to merit copyright protection.

"Peck's rex" at Fort Peck Interpretive Center

The Black Hills Institute (BHI) of Geological Research of Hill City, S.D., filed the $8.2 million lawsuit last month after fossil researchers in Fort Peck, Mont., allegedly misused castings from two of its famous Tyrannosaurus rex recreations to put together the “Peck's rex” specimen. Incomplete portions of a T. rex skeleton had been found near Fort Peck in 1997.

After BHI loaned the castings in 2002 to Fort Peck Paleontology, Inc. (FPPI), “for the sole purpose of aiding in the identification and preparation” of “Peck's rex,” the complaint alleges, the Montana group incorporated them into the skeleton without consent, “pirat[ing] Plaintiff's labor, expertise and artistic work for their own financial gain.”

The battle isn't just about any old bones, the Black Hills boys say. Complete T.rex skeletons have sold at auction for more than $8 million and, if paleontologists can cut corners by copying the painstaking work of others, the business would become more profitable.

BHI has registered copyrights on its “Stan” and “Sue” T. rex specimens as well as castings used to create them. But it will have to show that the castings — which are essentially copies of natural objects — are original enough to qualify as “artistic work” under copyright law.

In what may be the closest precedent, the 9th U.S. Circuit Court of Appeals in 2003 denied copyright protection to lifelike glass-in-glass sculptures of jellyfish, finding that “ideas, first expressed by nature, are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them.” Satava v. Lowry, 323 F.3d 805.

Since fossilized remnants are all that's left of the dinosaurs that once ruled the Earth, scientists use castings to replace the bones missing from the skeletal puzzle. “Such original sculptures can be combined with any complete, perhaps unfinished fossilized remains to create individual bone components, and perhaps fully-realized dinosaur renditions,” BHI says in its suit.

“Stan,” parts of which were first discovered in South Dakota in 1987, “required nearly 30,000 hours of creation and rendering” before it was ready to be exhibited to the public.

BHI says it “temporarily loaned to Defendant FPPI multiple originally sculpted T. rex fossil casts” after the “Peck's rex” discovery, including the skull cast from “Stan.” Using copies of those casts, FPPI created at least five complete Peck's rex skeletons that are now on display around the country, BHI alleges.

The suit, filed in Montana federal court, seeks damages and injunctive relief for copyright infringement, unfair competition, conversion, and misappropriation. “It's very important that we aggressively protect our copyright,” BHI president Peter Larson told the Rapid City Journal. “If these guys can do it, so can anybody else.”

As the U.S. Supreme Court has noted, “The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author.” Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991). BHI stresses that its castings are original “interpretations” of “missing bones and/or bone fragments.”

In Satava, the 9th Circuit said an artist “may not prevent others from copying elements of expression that nature displays for all observers.” But the opinion went on to note that

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.

BHI's highly original piracy case may hinge on whether its castings include original “variations” on ideas “first expressed in nature.”

By Matthew Heller
12/30/10