Page:Sid & Marty Krofft Television Productions v. McDonald's Corporation.pdf/7

 of being found to be infringers if their statues were substantially similar and access were shown. The burden of proof on the plaintiff would be minimal, since most statues of nudes would in all probability be substantially similar to the cheaply manufactured plaster one.

Clearly the scope of copyright protection does not go this far. A limiting principle is needed. This is provided by the classic distinction between an “idea” and the “expression” of that idea. It is an axiom of copyright law that the protection granted to a copyrighted work extends only to the particular expression of the idea and never to the idea itself. Mazer v. Stein, 347 U.S. 201, 217–18, 74 S.Ct. 460, 98 L.Ed. 630 (1954); Baker v. Selden, 101 U.S. 99, 102–03, 25 L.Ed. 841 (1879). This principle attempts to reconcile two competing social interests: rewarding an individual’s creativity and effort while at the same time permitting the nation to enjoy the benefits and progress from use of the same subject matter.

The real task in a copyright infringement action, then, is to determine whether there has been copying of the expression of an idea rather than just the idea itself. “[N]o one infringes, unless he descends so far into what is concrete [in a work] as to invade … [its] expression.” National Comics Publications v. Fawcett Publications, 191 F.2d 594, 600 (2 Cir. 1951). Only this expression may be protected and only it may be infringed.

The difficulty comes in attempting to distill the unprotected idea from the protected expression. No court or commentator in making this search has been able to improve upon Judge Learned Hand’s famous “abstractions test” articulated in Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2 Cir. 1930), ''cert. denied'', 282 U.S. 902, 51 5.Ct. 216, 75 L.Ed. 795 (1931): "“Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended.” 45 F.2d at 121."