Page:Herbert Rosenthal Jewelry v. Kalpakian.pdf/4

 is accomplished simply by filing a claim and depositing copies of the work with the Register of Copyrights, 17 U.S.C. §§ 11, 13. There is no administrative investigation or determination of the validity of the claim. A certificate is refused only if the object falls outside the broad category of matter subject to copyright registration. 17 U.S.C. §§ 4–5. A copyright affords little protection. It confers “only ‘the sole right of multiplying copies.’ Absent copying there can be no infringement of copyright.” Mazer v. Stein, supra, 347 U.S. at 218, 74 S.Ct. at 471 (footnotes omitted). Because the registrant’s protection is limited and the social cost therefore small, the life of the copyright is long and, under current proposals, potentially even longer—now twenty-eight years plus a renewal period of twenty-eight more, 17 U.S.C. § 24, and, under Copyright Revision Bill § 543, 91st Congress, 1st Session, the life of the author plus fifty years.

Obviously a copyright must not be treated as equivalent to a patent lest long continuing private monopolies be conferred over areas of gainful activity without first satisfying the substantive and procedural prerequisites to the grant of such privileges.

Because copyright bars only copying, perhaps this case could be disposed of on the district court’s finding that defendants did not copy plaintiff’s bee pin. It is true that defendants had access to plaintiff’s pin and that there is an obvious similarity between plaintiff’s pin and those of defendants. These two facts constitute strong circumstantial evidence of copying. But they are not conclusive. Overman v. Loesser, 205 F.2d 521, 523 (9th Cir. 1953); Nimmer on Copyright §§ 139.4, 141.2, and there was substantial evidence to support the trial court’s finding that defendants’ pin was in fact an independent creation. Defendants testified to independent creation from identified sources other than plaintiff’s pin. The evidence established defendants’ standing as designers of fine jewelry and reflected that on earlier occasions they had designed jeweled pins in the form of living creatures other than bees, including spiders, dragonflies, and other insects, birds, turtles, and frogs. Any inference of copying based upon similar appearance lost much of its strength because both pins were lifelike representations of a natural creature. Moreover, there were differences between defendants’ and plaintiff’s bees—notably in the veining of the wings.

Although this evidence would support a finding that defendants’ bees were their own work rather than copied from plaintiff’s, this resolution of the problem is not entirely satisfactory, particularly in view of the principle that copying need not be conscious, but “may be the result of subconscious memory derived from hearing, seeing or reading the copyrighted work at some time in the past.” Howell’s Copyright Law 129 (4th ed. 1962). See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936); Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 16 (9th Cir. 1933). It seems unrealistic to suppose that defendants could have closed their minds to plaintiff’s highly successful jeweled bee pin as they designed their own.

A finding that defendants “copied” plaintiff’s pin in this sense, however, would not necessarily justify judgment against them. A copyright, we have seen, bars use of the particular “expression” of an idea in a copyrighted work but does not bar use of the “idea” itself. Others are free to utilize the “idea” so long as they do not plagiarize its “expression.” As the court said in Trifari, Krussman & Fishel, Inc. v. B. Steinberg-Kaslo Co., 144 F.Supp. 577, 580 (S.D.N.Y.1956), where the copyrighted work was a jeweled pin representing a hansom cab, “though an alleged infringer gets the idea of a hansom cab pin from a copyrighted article there can be no infringement unless the article itself has been copied. The idea of a hansom cab cannot be copyrighted. Nevertheless plaintiff’s expression of that idea, as embodied in its pin, can be copyrighted.” Or as Judge Hand put