Folkens v. Wyland

Full title: PIETER AREND FOLKENS, dba A HIGHER PORPOISE DESIGN GROUP, Plaintiff, v…

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

Date published: Mar 28, 2016

Case No. 2:14-cv-02197-JAM-CKD (E.D. Cal. Mar. 28, 2016)

Opinion

Case No. 2:14-cv-02197-JAM-CKD

03-28-2016

PIETER AREND FOLKENS, dba A HIGHER PORPOISE DESIGN GROUP, Plaintiff, v. WYLAND (NFN) AKA ROBERT THOMAS WYLAND, et al., Defendant.

John A. Mendez United States District Court Judge

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Having reviewed the Motion for Summary Judgment and supporting papers by defendants Wyland, Wyland Worldwide, LLC, Wyland Galleries, Inc., and Signature Gallery Group, Inc., and the opposition papers by Plaintiff Pieter Arend Folkens, dba A Higher Porpoise Design Group, and heard the oral arguments of counsel, the Court hereby rules that the motion is GRANTED in part, DENIED in part, and submitted in part, as follows:

1. The Court GRANTS the motion as to the first claim for relief for copyright infringement as to the Lucite sculpture known as "Wyland Dolphin" and dismisses the claim with prejudice on the grounds that the posture of a sisngle vertical dolphin is not an element protected by copyright (George S. Chen Corp. v. Cadona Int'l, Inc., 266 F. App'x 523, 524 (9^th Cir. 2008)) and Plaintiff cannot satisfy the extrinsic test for substantial similarity of protected elements;

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2. The Court takes under submission the first claim for relief for copyright infringement as to the painting by defendant Wyland known as "Life in the Living Sea";

2. The Court DENIES the motion as to the second claim for relief for breach of settlement agreement on the ground that there are triable issues of fact;

3. The Court DENIES the motion as to the third claim for relief for declaratory relief on the ground that there are triable issues of fact;

4. The Court GRANTS the motion as to the fourth claim for relief for false promise and dismisses the claim with prejudice on the ground that a claim for false promise requires something more than mere non-performance to prove the defendant's intent not to perform his promise (Magpali v. Farmers Group, Inc., 48 Cal. App. 4 471, 481, as modified on denial of reh'g (1996)), which has not been demonstrated by Plaintiff. DATED: 3/28/2016

/s/ John A. Mendez

John A. Mendez

United States District Court Judge