Page:Herbert Rosenthal Jewelry v. Kalpakian.pdf/5

 it in Sheldon v. Metro-Goldwyn Pictures Corp., supra, 81 F.2d at 54, “defendants were entitled to use, not only all that had gone before, but even the plaintiffs’ contribution itself, if they drew from it only the more general patterns; that is, if they kept clear of its ‘expression.’” See also Millworth Converting Corp. v. Slifka, 276 F.2d 443, 445 (2d Cir. 1960).

The critical distinction between “idea” and “expression” is difficult to draw. As Judge Hand candidly wrote, “Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). At least in close cases, one may suspect, the classification the court selects may simply state the result reached rather than the reason for it. In our view, the difference is really one of degree as Judge Hand suggested in his striking “abstraction” formulation in Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930). The guiding consideration in drawing the line is the preservation of the balance between competition and protection reflected in the patent and copyright laws.

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. Baker v. Selden, 101 U.S. 99, 103, 25 L.Ed. 841 (1879); Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678–679 (1st Cir. 1967); Crume v. Pacific Mut. Life Ins. Co., 140 F.2d 182, 184 (7th Cir. 1944). See also Continental Cas. Co. v. Beardsley, 253 F.2d 702, 705–706 (2d Cir. 1958).

Affirmed.