In April 1979, Dakin’s board of directors decided not to acquire Favorite Things. In July or August 1979, Dakin began developing its own line of stuffed toy dinosaurs. Dakin first offered its “Prehistoric Pet” line for sale in its fall catalog, which was released in June 1980. The six stuffed animals offered by Dakin were of the same six species as those presented to Dakin by Aliotti. Although Dakin offered affidavits supporting its claim that its employees independently developed its dinosaur line, for the purposes of summary judgment we assume that Dakin appropriated Aliotti’s idea of producing stuffed dinosaur dolls.
DISCUSSION
I. Copyright Claims
The district court’s grant of summary judgment on the copyright claims is subject to de novo review. See Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985). Although “summary judgment is not highly favored on the substantial similarity issue in copyright cases,” id., it is appropriate if “the court concludes that no reasonable jury could find substantial similarity of both ideas and expression between the works at issue.” Frybarger v. International Business Machines Corp., 812 F.2d 525, 528 (9th Cir.1987). See Fed.R.Civ.P. 56(c) (allowing summary judgment when “there is no genuine issue as to any material fact”).
To prevail on her copyright claims at trial, Aliotti must prove (1) that she owned the copyrights, (2) that Dakin had access to her designs, and (3) that there is “substantial similarity” between her designs and Dakin’s stuffed animals. See Berkic, 761 F.2d at 1291; Sid and Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir.1977). Because there exist genuine issues of material fact on the issues of ownership and access, summary judgment is appropriate on the copyright claims only if no reasonable jury could find the two lines of stuffed animals to be substantially similar to one another. See Worth v. Selchow & Righter Co., 827 F.2d 569, 571 (9th Cir.1987).
Krofft sets forth a two-part test for determining whether one work is substantially similar to another. See Krofft, 562 F.2d at 1164; see also Berkic, 761 F.2d at 1292; Jason v. Fonda, 526 F.Supp. 774, 777 (C.D.Ca.1981), aff’d, 698 F.2d 966 (9th Cir.1982). The “extrinsic” test, used to determine whether two ideas are substantially similar, is objective, resting upon specific criteria that can be listed and analyzed. See Krofft, 562 F.2d at 1164. The “intrinsic” test, which is used to compare forms of expression, is more subjective, “depending on the response of the ordinary reasonable person.” Id. Appellants argue that the district court failed to articulate the applicable law or to apply the two tests to the facts of this case.
The district court’s order granting summary judgment distinguished between idea and expression but never explicitly applied the extrinsic and intrinsic tests:
The dolls at issue here derive from the same idea of stuffed dinosaur dolls, but they differ in the expression of that idea. The “Ding-A-Saur” dolls depict a sleepy eyed, “dingy” dinosaur with exaggerated facial and other anatomical features. The stitching on each dinosaur is raised and distinctive, and generally, they are constructed of a distinctive suede-like material. By contrast, the Dakin “Prehistoric Pet” dolls are more accurate depictions of dinosaurs; the dolls reflect less personality. They have no sleepy-eyed look or exaggerated features. They are constructed with a plush material, and the stitching is hidden.
As a matter of law, considering the total concept and feel of the products, the allegedly infringing dolls are not copies of the plaintiffs’ “Ding-A-Saurs.” No ordinary person could reasonably find that the dolls are so substantially similar as to render one a copy of the other; the dolls are substantially dissimilar.
Order Granting Summary Judgment at 2–3, No. 84–20368 (N.D.Cal. April 29, 1986).
As the district court recognized in its statement that the dolls “derive from the same idea,” the extrinsic test is satisfied
