Kent Dyer is a wildlife photographer who staged an elaborate photograph of a mountain lion holding a cub in her mouth. He alleged that defendant artist Jason Napier infringed his copyright to this image by sculpting a bronze mountain lion and cub in the same position.

In considering the infringement claim, the district court described a two-pronged test used by the Ninth Circuit to prove substantial similarity. First, the district court looked at the copyrightable portions of both works as measured by objective criteria (e.g. subject, posture, background, lighting and perspective); this is referred to as the “extrinsic test”. Second, the district court asks whether a reasonable audience would find the works substantially similar in overall concept and feel (the “intrinsic test”).

The district court only used the extrinsic test in granting Napier’s motion for summary judgment. It ruled that none of the protectable elements of the photograph—location, background, perspective, lighting and shading, timing, angling and framing, and the choice of film and camera—were copied in Napier’s sculpture. Ideas are not subject to copyright protection, and thus the concept of a protective mountain lion holding her cub could not be infringed.

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