Page:McCulloch v. Albert E. Price.pdf/4

 485, 488 (9th Cir.), ''cert. denied'', 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984) (citing Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977)). In this case, it is undisputed that ORP owns the copyright in its work, and that Price, Inc. had access to it.

We have developed a two-step test to determine substantial similarity in the ideas of a work and their expression. Cooling Systems, 777 F.2d at 492 n. 9; Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.1984), ''cert. denied'', 470 U.S. 1052, 105 S.Ct. 1753, 84 L.Ed.2d 817 (1985). Similarity of ideas may be shown by an extrinsic test which focuses on similarities in the objective details of the works. Litchfield, 736 F.2d at 1356. This step is extrinsic “because it depends not on the responses of the trier of fact, but on specific criteria which can be listed and analyzed.” Krofft, 562 F.2d at 1164. The extrinsic test “may often be decided as a matter of law.” Id.

Similarity of expression depends on a subjective, intrinsic test which focuses on the response of the “ordinary reasonable person” to the works. Litchfield, 736 F.2d at 1356. The issue is whether the “ordinary reasonable person” would find the “total concept and feel” of the works showed substantial similarity. Id. at 1357. The intrinsic test “is uniquely suited for determination by the trier of fact….” Krofft, 562 F.2d at 1166.

Price, Inc. contends the district court failed to apply this court’s two-step test for substantial similarity. Price, Inc. argues “the district court short circuited this two-step test by proceeding directly to the second step,” and that “no findings were made on the idea behind ORP’s plate or on the substantial similarity of ideas behind ORP’s plate and Price’s plate.” (Emphasis added).

Paragraph 17 of the district court’s Findings of Fact states that Price, Inc.’s plate “is confusingly similar in appearance to Plaintiffs’ plate….” This finding satisfies the similarity of ideas prong of the two-part test applied in Litchfield. In Litchfield, we stated that the similarity of ideas prong may be shown by focusing on the similarities in the objective details of the works. 736 F.2d at 1356. Concluding that the plates are “confusingly similar in appearance” is tantamount to finding substantial similarities in the objective details of the plates. Thus, although the district court did not expressly state that it was applying the two-part test, it is clear from the record that the court found a similarity of ideas and expression.

Price, Inc. next argues that “[e]ven if the ideas behind the ORP plate and the Price plate are substantially similar, the failure to identify the idea behind the ORP plate undermined the district court’s ability to properly evaluate the scope of copyright protection to be accorded ORP’s work.”

Under our two-part test for copyright infringement, it is not necessary to determine the scope of copyright protection or to identify the idea behind the ORP plate as suggested by Price, Inc. Price, Inc. has not cited any authority which supplements this court’s two-part test for copyright infringement with these additional elements, and our research has disclosed none. The district court did not err in failing to identify the idea behind the ORP plate or to determine the scope of copyright protection accorded the ORP plate.

Price, Inc. also contends the district court’s finding that the ORP plate and the Price, Inc. plate are substantially similar is clearly erroneous. Price, Inc. argues that “[a]ny similarities in the two plates are the unavoidable consequence of expressing the same uncopyrightable idea,” relying on Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir.1971).

In Kalpakian, plaintiff sued for copyright infringement of its jeweled bee pin claiming it should be protected against the manufacture of any substantially similar object. 446 F.2d at 739. We concluded that the plaintiff had failed to establish substantial similarity.

What is basically at stake is the extent of the copyright owner’s