The question of whether renderings of ancient dinosaurs can be copyright protected as original "art" remains unresolved, after a settlement was reached in a federal lawsuit in Montana over bone castings from three well-known Tyrannosaurus rex specimens.
Because of the settlement, a hearing scheduled for Tuesday that would have struck at the heart of the dispute was cancelled by U.S. District Judge Sam Haddon.
Parties in the case said Monday that they could not reveal the terms of the deal under a mutual confidentiality agreement.
The case pitted South Dakota-based Black Hills Institute of Geological Research against a Montana nonprofit that allegedly made unauthorized copies of castings from two T-rexes, dubbed Stan and Sue.
Fort Peck Paleontology, Inc. allegedly used the castings to fill out incomplete portions of a third Tyrannosaurus rex, known as Peck's Rex, and sell replicas.
That prompted Black Hills to file a copyright infringement lawsuit in 2010 seeking $7.4 million in damages. Fort Peck Paleontology chairman John Rabenberg also was named as a defendant.
Attorney Antoinette Tease said Monday that Fort Peck Paleontology is likely to be dissolved after it was unable to file its annual report with the Secretary of State's office by an April 15 deadline.
Replicas of Peck's Rex are in museums including the Carnegie Museum of Natural History in Pittsburgh, the Wyoming Dinosaur Center and the Maryland Science Center, according to court documents.
The original bones are held by the Museum of the Rockies in Bozeman. The museum's director, acclaimed paleontologist John "Jack" Horner, said Monday that he followed the Black Hills-Fort Peck lawsuit out of curiosity, but it had no direct bearing on the museum or the fossil itself.
"We're not in the commercial business so we don't have a dog in the fight," he said. "We just take care of Peck's Rex."
The amount of damages sought in the Black Hills case underscores how lucrative the trade in dinosaur bones and replicas has become in recent years. The company's website lists full-skeleton replicas of Stan for sale for $100,000. The skull alone is listed at $9,500.
The original Sue is a permanent feature at the Field Museum of Natural History in Chicago, which bought the specimen at auction for almost $8.4 million.
The sale came after an ownership dispute in which the federal government took the dinosaur from the Black Hills Institute following its 1990 discovery, saying it had been taken from Indian land held under federal trust.
The defendants said that as a result of losing ownership, Black Hills had no right to file for a copyright on the castings made from Sue. They also said the company's claims should be rejected because the statute of limitations on the alleged actions expired by the time the lawsuit was filed two years ago.
Black Hills owner Peter Larson said he was pleased with last week's settlement and maintained his side would have prevailed if the case had been decided by the court.
"We're happy we were able to have an amicable settlement with them," he said. Black Hills' attorney, Luke Santangelo of Fort Collins, Colo., said the case represented a "vindication" for the notion that copyrights can apply in the field of paleontology.
Tease disputed that claim and said it was unfounded.
In court documents, the defendants argued that the castings of dinosaur fossils constitute exact replicas of objects found in nature and as such are not subject to copyright. Any work done to reproduce missing bones or other features of the original dinosaurs was based on past scientific research - not the creative imaginings of Black Hills employees, the defendants said.
"There was no agreement concerning the validity of these copyrights," Tease said. "That issue was not resolved and this case was settled prior to the hearing on that motion."
But Larson said the fossilized bones that his company finds in the ground bear no resemblance to the replicas Black Hills creates after the bones are extracted then painstakingly cleaned, restored and glued together before castings are made from molds of the originals.
To reinforce the point, Black Hills filed with the court a deposition from Fort Peck founder Boone Whitmer in which he referred to the "artistic ability" that goes into making an incomplete set of bones look like a full Tyrannosaurus rex.
"If you look at Sue, Sue was a cliff face. That's the natural object, and everything else is our interpretation of it," Larson said.