Page:Sid & Marty Krofft Television Productions v. McDonald's Corporation.pdf/13

 supra, 388 F.2d at 951 (cowboy statuettes); Day-Brite Lighting, Inc. v. Sta-Brite FlourescentFluorescent [sic] Manufacturing Co., 308 F.2d 377, 380 (5 Cir. 1962) (catalogue).

No standard more demanding than that of substantial similarity should be imposed here. This is not a case where the idea is indistinguishable as a matter of law from the expression of that idea. See Goodson-Todman Enterprises, Inc. v. Kellogg Co., supra, 513 F.2d at 914. The expression inherent in the H. R. Pufnstuf series differs markedly from its relatively simple idea. The characters each have developed personalities and particular ways of interacting with one another and their environment. The physical setting also has several unique features.

Lest we fall prey to defendants’ invitation to dissect the works, however, we should remember that it is the combination of many different elements which may command copyright protection because of its particular subjective quality. Reyher v. Children’s Television Workshop, Inc., supra, 533 F.2d at 91–92; Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 624 (2 Cir. 1962). As the court said in Malkin v. Dubinsky, 146 F.Supp. 111, 114 (S.D.N.Y.1956): “While any one similarity taken by itself seems trivial, I cannot say at this time that it would be improper for a jury to find that the over-all impact and effect indicate substantial appropriation.” The same is true here.

Defendants argue that the first amendment operates in this case to limit the protection for plaintiffs’ works. They seem to suggest that a more demanding standard than that of substantial similarity should be imposed, and that the threshold question about copying becomes one of “constitutional fact” to be reviewed de novo on appeal. Defendants attempt to analogize the copyright area to those of obscenity and defamation in suggesting that prior law must be modified to accommodate expanding first amendment rights.

The constitutionality of the copyright law was settled long ago by the Supreme Court. In Kalem Co. v. Harper Brothers, 222 U.S. 55, 32 S.Ct. 20, 56 L.Ed. 92 (1911), the defendant argued that the copyright law could not grant an author an exclusive right to dramatize his works. In rejecting this contention, the Court stated: