Page:Atari v. North American Philips Consumer Electronics.pdf/10

 expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can…. As respects plays, the controversy chiefly centers upon the characters and sequence of incident, these being the substance. (citations omitted). This “test” has proven useful in analyzing dramatic works, literary works, and motion pictures, where the recurring patterns can readily be abstracted into very general themes.

A related concept is that of idea-expression unity: where idea and expression are indistinguishable, the copyright will protect against only identical copying. Krofft, 562 F.2d at 1167–68. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971), presents a good example and discussion of this limitation. Plaintiff charged defendants with copyright infringement of a pin in the shape of a bee encrusted with jewels. The court assumed the validity of plaintiff’s copyright, but refused to find substantial similarity:

"What is basically at stake is the extent of the copyright owner’s monopoly—from how large an area of activity did Congress intend to allow the copyright owner to exclude others? We think the production of jeweled bee pins is a larger private preserve than Congress intended to be set aside in the public market without a patent. A jeweled bee pin is therefore an “idea” that defendants were free to copy. Plaintiff seems to agree, for it disavows any claim that defendants cannot manufacture and sell jeweled bee pins and concedes that only plaintiff’s particular design or “expression” of the jeweled bee pin “idea” is protected under its copyright. The difficulty, as we have noted, is that on this record the “idea” and its “expression” appear to be indistinguishable. There is no greater similarity between the pins of plaintiff and defendants than is inevitable from the use of jewel-encrusted bee forms in both.

When the “idea” and its “expression” are thus inseparable, copying the “expression” will not be barred, since protecting the “expression” in such circumstances would confer a monopoly of the “idea” upon the copyright owner free of the conditions and limitations imposed by the patent law."

Id. at 742; see also Franklin Mint Corp. v. National Wildlife Act Exchange, Inc., 575 F.2d 62 (3d Cir.), ''cert. denied'', 439 U.S. 880, 99 S.Ct. 217, 58 L.Ed.2d 193 (1978). “The idea and expression will coincide when the expression provides nothing new or additional over the idea.” Krofft, 562 F.2d at 1168.

In the context of literary works, some courts have adopted a similar scenesscènes [sic] aà [sic] faire approach. ScenesScènes [sic] aà [sic] faire refers to “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978); see Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.), ''cert. denied'', 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980). Such stock literary devices are not protectible by copyright. Reyher, 533 F.2d at 91. Thus, “similarity of expression, whether literal or nonliteral, which necessarily results from the fact that the common idea is only capable of expression in more or less stereotyped form will preclude a finding of actionable similarity.” 3 Nimmer § 13.03[A][1], at 13–28. Courts have applied this concept to written game rules, see, e.g., Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678 (1st Cir. 1967); Affiliated Hospital Products, Inc. v. Merdel Game Manufacturing Co., 513 F.2d 1183, 1188–89 (2d Cir. 1975); Durham, 630 F.2d at 914–15, and to the pictorial display of game boards, see Atari, Inc. v. Amusement World, Inc., slip op. at 11–15.

As Kalpakian and other cases show, that a work is copyrighted says very little