Cite as 831 F.2d 898 (9th Cir. 1987)
here because both lines of products depict the same subject matter—stuffed dinosaur toys. See McCulloch v. Albert E. Price, Inc., 823 F.2d 316, 319 (9th Cir.1987) (finding the extrinsic test to have been conducted adequately where the district court’s findings indicated that it had found a similarity of ideas).
Appellants argue correctly that the district court’s determination as to substantial similarity of expression relied incorrectly on the analytic dissection of the dissimilar characteristics of the dolls. See Krofft, 562 F.2d at 1164 (observing that analytic dissection is not appropriate under the intrinsic test). Similarity of expression exists only when “the total concept and feel of the works” is substantially similar. See Litchfield v. Spielberg, 736 F.2d 1352, 1357 (1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1753, 84 L.Ed.2d 817 (1985); Krofft, 562 F.2d at 1164. Dissection of dissimilarities is inappropriate because it distracts a reasonable observer from a comparison of the total concept and feel of the works.
The inquiry into similarity of expression is modified by a line of cases recognized by Krofft but never satisfactorily integrated into the two-part Krofft framework. See Krofft, 562 F.2d at 1167–69. No 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.” Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.1971). See Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 489 (9th Cir.), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984) (factual works); See v. Durang, 711 F.2d 141, 143 (9th Cir.1983) (scenes a faire doctrine); Krofft, 562 F.2d at 1168.
Because these cases involve elements of expression, they properly may be assimilated within the analytical framework of the intrinsic test. To the extent that it is necessary to determine whether similarities result from unprotectable expression, it is appropriate under Krofft’s intrinsic test to perform analytic dissection of similarities. Although even unprotectable material should be considered when determining if there is substantial similarity of expression, see McCulloch, 823 F.2d at 320–21, no substantial similarity may be found under the intrinsic test where analytic dissection demonstrates that all similarities in expression arise from the use of common ideas.
No copyright protection may be afforded to the idea of producing stuffed dinosaur toys or to elements of expression that necessarily follow from the idea of such dolls. See, e.g., Herbert Rosenthal Jewelry Corp., 446 F.2d 738 (finding the idea and the expression of jeweled bee pins to be inseparable). Appellants therefore may place no reliance upon any similarity in expression resulting from either the physiognomy of dinosaurs or from the nature of stuffed animals. See Frybarger, 812 F.2d at 529–30 (quoting Atari, Inc. v. North American Philips Consumer Elecs. Corp., 672 F.2d 607, 616 (7th Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982)) (finding that certain video game features are “as a practical matter indispensable, or at least standard, in the treatment of a given [idea]”).
Thus, the intrinsic test is not satisfied merely because the Ding-A-Saurs and the Prehistoric Pets share similar postures and body designs. Substantial similarity of expression cannot be established by the fact that both lines of dinosaurs are gentle and cuddly, given that stuffed animals are intended for children and are usually designed to be soft and nonthreatening. Although the eye style and stitching of the Ding-A-Saurs are not dictated by the idea of stuffed dinosaur dolls and thus constitute protectable expression, Dakin’s Prehistoric Pets do not incorporate these elements of expression.[1]
- ↑ Appellants argue that substantial similarity of expression is evidenced by certain telling similarities between corresponding dolls in the two lines. Aliotti is correct that only the Tyrannosaurus in each line is depicted with its mouth open, but we observe that the Tyrannosaurus—unlike the other species—was a carnivore and is commonly pictured with its mouth open. Similarly, we cannot find substantial similarity of expression in the fact that both Aliotti’s Ptero-
