not manufacture and sell jeweled bee pins and concedes that only plaintiffs’ particular design or expression of the jeweled bee pin idea is protected under its copyright. The difficulty, as we have noted, is that on this record the idea and its expression appear to be indistinguishable. There is no greater similarity between the pins of plaintiff and defendants than is inevitable from the use of jewel-encrusted bee forms in both.
“When the idea and its expression are thus inseparable, copying the expression will not be barred, since protecting the expression in such circumstances would confer a monopoly of the idea upon the copyright owner free of the conditions and limitations imposed by the patent law.” Id. at 742.
See also Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co., Inc., 509 F.2d 64, 65 (2 Cir. 1974).
The idea and the expression will coincide when the expression provides nothing new or additional over the idea. Thus, the expression of a jeweled bee pin contains nothing new over the idea of a jeweled bee pin. Returning to our own example, the idea of a plaster statute of a nude will probably coincide with the expression of that idea when an inexpensive manufacturing process is used. There will be no separately distinguishable features in the statute’s expression over the idea of a plaster nude statute.[1]
The complexity and artistry of the expression of an idea will separate it from even the most banal idea. Michaelangelo’s David is, as an idea, no more than a statute of a nude male. But no one would question the proposition that if a copyrighted work it would deserve protection even against the poorest of imitations. This is because so much more was added in the expression over the idea.
When idea and expression coincide, there will be protection against nothing other than identical copying of the work. When other defendants made jeweled bees from the same molds as plaintiffs, they were held liable. See Herbert Rosenthal Jewelry Corp. v. Grossbardt, 436 F.2d 315 (2 Cir. 1970). Therefore, the scope of copyright protection increases with the extent expression differs from the idea.
The coincidence of idea and expression may occur in works other than “things.”[2] Baker v. Selden, supra, held that blank accounting books are not subject to copyright protection. Yet if any information is contained in those blanks, copyright protection is available. See Edwin K. Williams & Co. v. Edwin K. Williams, etc., 542 F.2d 1053, 1060–61 (9 Cir. 1976) (account books with explanation); Guthrie v. Curlett, 36 F.2d 694 (2 Cir. 1929) (index of freight tariffs); American Code Co. v. Bensinger, 282 F. 829 (2 Cir. 1922) (codes).
There is no special standard of similarity required in the case of “things.” Nor is any such standard suggested by any of the cases cited by defendants. For example, in Monogram Models, Inc. v. Industro Motive Corp., 492 F.2d 1281, 1284 (6 Cir. 1974), the issue was one of copyright infringement of scale model airplane kits. Defendant admitted copying, but argued lack of substantial copying. The court affirmed a jury finding of infringement, citing the ordinary reasonable observer test. Id. at 1286. See also Williams v. Kaag Manufacturing, Inc.,
- ↑ A description of the “what” and the “how” of a work serves as a useful tool in determining whether the expression of an idea differs from the idea itself. If, in describing how a work is expressed, the description differs little from a simple description of what the work is, then idea and expression coincide.
- ↑ We are not at all certain what defendants mean by distinguishing “things” from “dramatic works.” They list statuettes, dolls, pictures, and jewelry as being “things.” We assume this broad category would include fine paintings and sculpture, which surely are not “dramatic works.” To suggest that such works must be identically copied to be infringed shows the spuriousness of the distinction. Moreover, defendants’ cited cases do not lend any support to their contention. They find infringement where there have been identical copies made. This does not suggest that infringement would not have been found if only substantially similar copies were made.
