Cite as 562 F.2d 1157 (1977)
supra, 388 F.2d at 951 (cowboy statuettes); Day-Brite Lighting, Inc. v. Sta-Brite Flourescent Manufacturing Co., 308 F.2d 377, 380 (5 Cir. 1962) (catalogue).
No standard more demanding than that of substantial similarity should be imposed here. This is not a case where the idea is indistinguishable as a matter of law from the expression of that idea. See Goodson-Todman Enterprises, Inc. v. Kellogg Co., supra, 513 F.2d at 914. The expression inherent in the H. R. Pufnstuf series differs markedly from its relatively simple idea. The characters each have developed personalities and particular ways of interacting with one another and their environment. The physical setting also has several unique features.
Lest we fall prey to defendants’ invitation to dissect the works, however, we should remember that it is the combination of many different elements which may command copyright protection because of its particular subjective quality. Reyher v. Children’s Television Workshop, Inc., supra, 533 F.2d at 91–92; Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 624 (2 Cir. 1962). As the court said in Malkin v. Dubinsky, 146 F.Supp. 111, 114 (S.D.N.Y.1956): “While any one similarity taken by itself seems trivial, I cannot say at this time that it would be improper for a jury to find that the over-all impact and effect indicate substantial appropriation.”[1] The same is true here.[2]
Copyright and the First Amendment
Defendants argue that the first amendment operates in this case to limit the protection for plaintiffs’ works.[3] They seem to suggest that a more demanding standard than that of substantial similarity should be imposed, and that the threshold question about copying becomes one of “constitutional fact” to be reviewed de novo on appeal. Defendants attempt to analogize the copyright area to those of obscenity and defamation in suggesting that prior law must be modified to accommodate expanding first amendment rights.
The constitutionality of the copyright law was settled long ago by the Supreme Court. In Kalem Co. v. Harper Brothers, 222 U.S. 55, 32 S.Ct. 20, 56 L.Ed. 92 (1911), the defendant argued that the copyright law could not grant an author an exclusive right to dramatize his works. In rejecting this contention, the Court stated:
- ↑ We also note that the jury was specifically instructed to consider the works as a whole. Instruction No. 17, requested by the defendants themselves, read:
“In comparing the PUFNSTUF series and the McDonaldland commercials to determine whether there has been copyright infringement, you must consider and compare each of the works as a whole. That is, you must not simply focus on isolated elements of each work to the exclusion of the other elements, combination of elements, and expressions therein.”
This instruction properly warned the jury against analytic dissection in accordance with Arnstein and our opinion today.
- ↑ One measure of infringement used in the past has been the effect of the allegedly infringing work on the value of the original. As this court said in Universal Pictures Co., Inc. v. Harold Lloyd Corp., 162 F.2d 354, 361 (9 Cir. 1947):
“To constitute an invasion of copyright it is not necessary that the whole of a work should be copied, nor even a large portion of it in form or substance, but that, if so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient to constitute infringement.”
The record shows that the value of the H. R. Pufnstuf series, particularly as regards to its merchandising potential, was sizeably diminished after the McDonaldland commercials appeared. While we do not think that infringement should be so objectively measured, it is another indication of infringement here.
- ↑ We note that this First Amendment argument was never raised in the court below and is asserted here for the first time. Plaintiffs suggest that it may not therefore be considered. See Frommhagen v. Klein, 456 F.2d 1391, 1395 (9 Cir. 1972); Simpson v. Union Oil Co., 411 F.2d 897, 900–01 (9 Cir.), rev’d on other grounds, 396 U.S. 13, 90 S.Ct. 30, 24 L.Ed.2d 13 (1969). Since the asserted constitutional claims would affect not only the standard of review but our infringement tests, however, we exercise our discretion to consider the arguments. See Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941).
