Page:Landsberg v. Scrabble Crossword Game Players.pdf/5

 Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir.1980), ''cert. denied'', 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980), illustrates this. Hoehling wrote a factual account of the destruction of the dirigible Hindenburg in which he theorized that Eric Spehl, a rigger on the Hindenburg, caused the explosion. Hoehling claimed that Universal had infringed his copyright by using his theory in a motion picture on the disaster. Universal’s use of Hoehling’s description of how Spehl sabotaged the Hindenburg might have been held a substantially similar infringement if Hoehling had written a fictional work. But because Hoehling’s theory related to historical fact, Universal’s use of it did not infringe so long as Universal did not “bodily appropriate” Hoehling’s expression. 618 F.2d at 980. See also Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir.1981).

The doctrine of scenesscènes [sic] aà [sic] faire is another illustration of how the substantial similarity that constitutes infringement varies according to the idea expressed. Under that doctrine, a second author does not infringe even if he reproduces verbatim the first author’s expression, if that expression constitutes “stock scenes or scenes that flow[ ] necessarily from common unprotectable ideas,” See v. Durang, 711 F.2d 141, 143 (9th Cir.1983), because to hold otherwise would give the first author a monopoly on the commonplace ideas behind the scenesscènes [sic] aà [sic] faire.

C. S & R’s Handbook.

We have reviewed Landsberg’s work, S & R’s work, and Exhibit 45, a comparative table of similarities between the two works. While we find similarities between the two works, we think there is no more than the similarity that must unavoidably be produced by anyone who wishes to use and restate the unprotectable ideas contained in Landsberg’s work. If we were to hold S & R’s work to be an infringement, we do not see how anyone could state Landsberg’s ideas without also being held to have infringed. Landsberg would in effect have obtained a copyright on the ideas contained in his work.

The substantial similarity inquiry will vary according to the context in which it is applied. The copyright law protects expression of unprotectable ideas only insofar as is possible without protecting the ideas themselves. The district court therefore applied the substantial similarity test too broadly by expanding it to cover Landsberg’s ideas and stock expressions.

S & R’s work does not duplicate the selection, coordination, and arrangement of the ideas in Landsberg’s work, so we need not decide whether a work that rephrased in the same order as the original a substantial part of the ideas in another work might be held to infringe that work as a compilation, see 17 U.S.C. §§ 101, 103, even though none of the rephrasings of the individual ideas would constitute infringement when viewed in isolation.

III. CONTRACT REMEDY

Landsberg cannot recover under the copyright laws, but he may have a remedy in California contract law. Landsberg alleged as his second cause of action that S & R had breached a contract to pay him for the use of his Strategy Book. California law will enforce a contract, whether express or implied-in-fact, to pay for the disclosure of an uncopyrightable idea. Weitzenkorn v. Lesser, 40 Cal.2d at 790–791, 256 P.2d at 957–59; Desny v. Wilder, 46 Cal.2d 715, 299 P.2d 257 (1956).

The district court found as a fact that “[b]ased upon S & R’s conduct, Plaintiff reasonably believed that S & R would not use or copy his manuscript, or any portion thereof, without his consent and without payment to him of an acceptable sum.” This is conduct that can create an implied-in-fact contract. However, an implied-in-fact contract to pay for the conveyance of an idea will be enforced only if circumstances and conduct manifesting the terms and existence of a contract precede or attend disclosure of the idea. Desny v. Wilder, 46 Cal.2d at 738, 299 P.2d at 270.