strong public policy corollary to this axiom permitting all to use freely ideas contained in a copyrightable work, so long as the protected expression itself is not appropriated. Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (9th Cir.1984), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984). Thus, to the extent the similarities between plaintiff’s and defendant’s works are confined to ideas and general concepts, these similarities are noninfringing.
The Ninth Circuit has developed a two-step test for the purposes of determining substantial similarity. McCulloch, 823 F.2d at 319; Krofft, 562 F.2d at 1164. First, an “extrinsic” test is used to determine whether two ideas are substantially similar. This is an objective test which rests upon specific criteria that can be listed and analyzed. Krofft, id. Second, an “intrinsic” test is used to compare forms of expression. This is a subjective test which depends on the response of the ordinary reasonable person. Id.
In applying the extrinsic test, the district court found that the idea expressed in plaintiff’s game and in defendant’s game is identical. The idea of the games was described by the court as follows:
“… a martial arts karate combat game conducted between two combatants, and presided over by a referee, all of which are represented by visual images, and providing a method of scoring accomplished by full and half point scores for each player, and utilizing dots to depict full point scores and half point scores.”
The district court further found that:
“In each of the games, the phases of martial arts combat are conducted against still background images purporting to depict geographic or locality situses and located at the top of the screen as the game is viewed. The action of the combatants in each of the games takes place in the lower portion of the screen as the game is viewed, and is against a one color background in that portion of the screen as the game is viewed.”
Once an idea is found to be similar or identical, as in this case, the second or intrinsic step is applied to determine whether similarity of the expression of the idea occurs. This exists when the “total concept and feel of the works” is substantially similar. Aliotti v. R. Dakin & Co., 831 F.2d 898 (9th Cir.1987). Analytic dissection of the dissimilarities as opposed to the similarities is not appropriate under this test because it distracts a reasonable observer from a comparison of the total concept and feel of the works. Id.
The rule in the Ninth Circuit, however, is that “[n]o substantial similarity of expression will be found when ‘the idea and its expression are … inseparable,’ given that ‘protecting the expression in such circumstances would confer a monopoly of the idea upon the copyright owner.’ ” Id. (quoting Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971)) (emphasis added); see also Landsberg, 736 F.2d at 489 (factual works); See v. Durang, 711 F.2d 141, 143 (9th Cir.1983) (scenes a faire doctrine); Krofft, 562 F.2d at 1168.
Nor can copyright protection be afforded to elements of expression that necessarily follow from an idea, or to “scenes a faire,” i.e., expressions that are “as a practical matter, indispensable or at least standard in the treatment of a given [idea].” Aliotti, 831 F.2d at 901 (quoting Atari, Inc. v. North American Phillips Consumer Elecs Corp., 672 F.2d 607, 616 (7th Cir.1982), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982)).
To determine whether similarities result from unprotectable expression, analytic dissection of similarities may be performed. If this demonstrates that all similarities in expression arise from use of common ideas, then no substantial similarity can be found. Id.
The district court performed what can be described as an analytic dissection of similarities in its findings of fact and stated:
form in which it is described, explained, illustrated, or embodied in such work.”
