Page:Aliotti v. R. Dakin.pdf/5

 Under the intrinsic test, we may find substantial similarity of expression only if a reasonable observer would infer that Dakin’s dolls capture the “total concept and feel” of Shelley Aliotti’s designs. Litchfield, 786 F.2d at 1357; Krofft, 562 F.2d at 1167. Because children are the intended market for the dolls, we must filter the intrinsic inquiry through the perception of children. See Krofft, 562 F.2d at 1166–67; Ideal Toy Corp. v. Fab-Lu Ltd., 261 F.Supp. 238, 241–42 (S.D.N.Y.1966), aff’d, 360 F.2d 1021 (2d Cir.1966). Upon de novo review, we find that summary judgment was appropriate because there exists no substantial similarity of protectable expression.

Appellants, relying upon dictum in Krofft that was based upon Professor Nimmer’s treatise, argue strenuously that the district court erred in failing to decrease the quantum of similarity required in this case, where Dakin’s access to her designs has been demonstrated. See Krofft, 562 F.2d at 1172. However, our finding that there exists no substantial similarity of protectable expression makes appellants’ argument inapplicable, given that “[n]o amount of proof of access will suffice to show copying if there are no similarities.” Id. See 3 M. Nimmer, The Law of Copyright § 13.03[D] (1987) (stating that “clear and convincing evidence of access will not avoid the necessity of also proving substantial similarity since access without similarity cannot create an inference of copying”). We thus need not address the continuing viability of Professor Nimmer’s proposal, which has been employed by no Ninth Circuit case since Krofft and had been earlier criticized for “confus[ing] and even conceal[ing]” the requirement of substantial similarity. See ARC Music Corp. v. Lee, 296 F.2d 186, 187–88 (2d Cir.1961).

II. State Law Claims

Appellants challenge the district court’s grant of summary judgment on their claims that Dakin breached an implied-in-fact contract by using Shelley Aliotti’s designs without compensating her and that it committed a breach of confidence by disclosing her designs without permission. We review de novo the district court’s grant of summary judgment on appellants’ state law claims, see Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986), and we apply California law, see Landsberg v. Scrabble Crossword Game Players, Inc., 802 F.2d 1193, 1196 (9th Cir.1986).

Under California law, “for an implied-in-fact contract one must show: that he or she prepared the work; that he or she disclosed the work to the offeree for sale; under all circumstances attending disclosure it can be concluded that the offeree voluntarily accepted the disclosure knowing the conditions on which it was tendered (i.e., the offeree must have the opportunity to reject the attempted disclosure if the conditions were unacceptable); and the reasonable value of the work.” Faris v. Enberg, 97 Cal.App.3d 309, 318, 158 Cal.Rptr. 704, 709 (1979). “If disclosure occurs before it is known that compensation is a condition of its use, … no contract will be implied.” Landsberg, 802 F.2d at 1196 (citing Desny v. Wilder, 46 Cal.2d 715, 733, 299 P.2d 257, 270 (1956)).

The affidavits demonstrate that Shelley Aliotti made her presentation to Dakin not to sell her designs herself but to help persuade Dakin to buy Favorite Things. She argues that she disclosed her ideas because she hoped to obtain employment with Dakin, but no contract may be implied where an idea has been disclosed not to gain compensation for that idea but for the sole purpose of inducing the defendant to enter a future business relationship. See Faris,