Page:Herbert Rosenthal Jewelry v. Kalpakian.pdf/2

 Charles Sonnenreich (argued), New York City, Levy & Tannenbaum, Los Angeles, Cal., for plaintiff-appellant.

Marvin Jubas (argued), of Spensley, Horn & Jubas, Los Angeles, Cal., for defendants-appellees.

Before BROWNING, ELY, and HUFSTEDLER, Circuit Judges.

BROWNING, Circuit Judge:

Plaintiff and defendants are engaged in the design, manufacture, and sale of fine jewelry.

Plaintiff charged defendants with in­ fringing plaintiff’s copyright registration of a pin in the shape of a bee formed of gold encrusted with jewels. A consent decree was entered, reciting that the parties had agreed to a settlement of the action and entry of the decree. It provided that plaintiff’s copyright of the jeweled bee was “good and valid in law,” that defendants had manufactured a jeweled bee “alleged to be similar,” and that defendants were enjoined from infringing plaintiff’s copyright and from manufacturing or selling copies of plaintiff’s jeweled bee pin.

Later plaintiff filed a motion for an order holding defendants in contempt of the consent decree. The district court, after an evidentiary hearing, found that while defendants had manufactured and sold a line of jeweled bee pins, they designed their pins themselves after a study of bees in nature and in published works and did not copy plaintiff’s copyrighted bee. The court further found that defendants’ jeweled bees were “not substantially similar” to plaintiff’s bees, except that both “do look like bees.” The court concluded that defendants had neither infringed plaintiff’s copyright nor violated the consent decree, and entered a judgment order denying plaintiff’s motion. We affirm.

Both in this court and below, the parties have assumed that defendants are bound by their concession of the validity of plaintiff’s copyright in the consent decree. Although we accept that assumption for purposes of this litigation, we expressly save the question