Cite as 562 F.2d 1157 (1977)
of being found to be infringers if their statues were substantially similar and access were shown. The burden of proof on the plaintiff would be minimal, since most statues of nudes would in all probability be substantially similar to the cheaply manufactured plaster one.[1]
Clearly the scope of copyright protection does not go this far. A limiting principle is needed. This is provided by the classic distinction between an “idea” and the “expression” of that idea. It is an axiom of copyright law that the protection granted to a copyrighted work extends only to the particular expression of the idea and never to the idea itself. Mazer v. Stein, 347 U.S. 201, 217–18, 74 S.Ct. 460, 98 L.Ed. 630 (1954); Baker v. Selden, 101 U.S. 99, 102–03, 25 L.Ed. 841 (1879). This principle attempts to reconcile two competing social interests: rewarding an individual’s creativity and effort while at the same time permitting the nation to enjoy the benefits and progress from use of the same subject matter.
The real task in a copyright infringement action, then, is to determine whether there has been copying of the expression of an idea rather than just the idea itself. “[N]o one infringes, unless he descends so far into what is concrete [in a work] as to invade … [its] expression.” National Comics Publications v. Fawcett Publications, 191 F.2d 594, 600 (2 Cir. 1951). Only this expression may be protected and only it may be infringed.[2]
The difficulty comes in attempting to distill the unprotected idea from the protected expression. No court or commentator in making this search has been able to improve upon Judge Learned Hand’s famous “abstractions test” articulated in Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2 Cir. 1930), cert. denied, 282 U.S. 902, 51 5.Ct. 216, 75 L.Ed. 795 (1931):
“Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended.” 45 F.2d at 121.
- ↑ This is so because the prerequisites for copyright registration are minimal. The work offered for registration need not be new, but only original, i. e., the product of the registrant. Donald v. Uarco Business Forms, 478 F.2d 764, 765–66 (8 Cir. 1973); Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1109 (9 Cir. 1970). As stated in Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 102–03 (2 Cir. 1951):
“ ‘Original’ in reference to a copyright work means that the particular work ‘owes its origin’ to the ‘author.’ No large measure of novelty is required. * * * All that is needed to satisfy both the Constitution and the statute is that the ‘author’ contributed something more than a ‘merely trivial’ variation, something recognizably ‘his own.’ Originality in this context ‘means little more than a prohibition of actual copying.’ No matter how poor artistically the ‘author’s’ addition, it is enough if it be his own” (citations omitted).
Of course, the scope of protection against infringement is not necessarily coextensive with the scope of the copyright secured. See Puddu v. Buonamici Statuary, Inc., 450 F.2d 401, 402 (2 Cir. 1971).
- ↑ The idea-expression dichotomy has been criticized by some commentators as outmoded because it was developed under older, narrower statutes which have since been considerably broadened. See, e. g., Collins, Some Obsolescent Doctrines of the Law of Copyright, 1 S.Cal.L.Rev. 127 (1928); Umbreit, A Consideration of Copyright, 87 U.Pa.L.Rev. 932 (1939); Note, Copyright Protection for Mass-Produced Commercial Products: A Review of the Developments Following Mazer v. Stein, 38 U.Chi.L.Rev. 807 (1971). Yet the distinction accurately conceptualizes the fundamental elements in an artistic creation and balances the competing interests inherent in the copyright law. We have surveyed the literature and have found that no better formulation has been devised. Moreover, most of these criticisms are directed at the fact that the courts tend to pay only lipservice to the idea-expression distinction without it being fairly descriptive of the results of modern cases. This is a criticism more of the application of the distinction than of the distinction itself, and can be alleviated by the courts being more deliberate in their consideration of this issue.
