Cite as 562 F.2d 1157 (1977)
Corp. v. Stern, 458 F.2d 1305, 1310–11 (9 Cir. 1972); United States v. Bodin, 375 F.Supp. 1265, 1267–68 (W.D.Okl.1974); McGraw Hill, Inc. v. Worth Publishers, Inc., 335 F.Supp. 415, 422 (S.D.N.Y.1971). In Walt Disney Productions v. Air Pirates, 345 F.Supp. 108 (N.D.Cal.1972), plaintiff sued for infringement of several of its famous cartoon characters by defendants, who used them for purposes of literary criticism. Defendants claimed that the first amendment limited the scope of plaintiff’s copyright protection. The court responded:
“However defendants would have it, the hard fact remains that both parties are dealing in cartoon series, comic books or strips, and that the mode which the defendants have chosen for the expression of their concepts amounts to a substantial taking of plaintiff’s expression of its concepts, even assuming vast difference in the content of those concepts. It can scarcely be maintained that there is no other means available to defendants to convey the message they have, nor is it even clear that other means are not available within the chosen genre of comics and cartoons. To paraphrase, it is true that it would be easier to copy substantial portions of the expression as distinguished from the idea itself of the Disney works, but the value of such labor-saving utility is far outweighed by the copyright interest in encouraging creation by protecting expression.” Id. at 115 (footnotes omitted).
The district court in Disney recognized that the expression inherent in plaintiff’s works differs from the mere idea of those works. The “idea” of Mickey Mouse is, after all, no more than a mouse. Yet the particular expression of that mouse has phenomenal commercial value and is recognized worldwide. Defendants there could have chosen any number of ways to express their idea of a mouse, but chose to copy Disney’s. So too the defendants in this case had many ways to express the idea of a fantasyland with characters, but chose to copy the expression of plaintiffs’. The first amendment will not protect such imitation.
There may be certain rare instances when first amendment considerations will operate to limit copyright protection for graphic expressions of newsworthy events.[1] For example, in Time, Inc. v. Bernard Geis Associates, 298 F.Supp. 130 (S.D.N.Y.1968), Life magazine sued a historian for copying frames of the Zapruder films of the assassination of John F. Kennedy. Although the court did not expressly invoke the first amendment, it did justify the defendant’s right to copy frames of the film on the ground of the “public interest in having the fullest information available on the murder of President Kennedy.” Id. at 146. Plaintiffs’ work in this case is neither a graphic expression nor concerning newsworthy events. Therefore, no first amendment considerations operate.[2]
- ↑ This exception to the rule that first amendment considerations do not operate to limit copyright protection was suggested by Professor Nimmer. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 U.C.L.A.L.Rev. 1180, 1199 (1970). He suggests a system of compulsory licensing for “news photographs,” which he defines as all products of the photographic and analogous processes (including motion pictures and video tape but excluding paintings, sculpture, and the like) depicting an event which was the subject of news stories appearing in the press. He gives the photographs of the My Lai massacre as an example.
- ↑ In Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2 Cir. 1966), Howard Hughes attempted to enjoin Random House from publishing a biography of Hughes. The biography was based on information contained in a series of articles appearing in Look magazine over which Hughes (via Rosemont) held a copyright. Had the biography merely attempted to use the information in the articles we would agree with the Second Circuit’s refusal to enjoin because such information represents the “idea” of a biography on Hughes. But the Random House biography copied verbatim almost 27% of one of the Look articles and 14% of all of the articles. Rosemont Enterprises, Inc. v. Random House, Inc., 256 F.Supp. 55, 61 (S.D.N.Y.1966). We believe this represents an unjustifiable appropriation of the expression of the idea, and hence disapprove of the result in Rosemont. Because there are available alternatives in the form of expressing any verbal ideas, first amendment considerations should not limit copyright protection in this area. We need not reach this precise issue today, however, since it is clear that neither the H. R. Pufnstuf series nor McDonaldland commercials are newsworthy.
