Cite as 562 F.2d 1157 (1977)
We believe that the court in Arnstein was alluding to the idea-expression dichotomy which we make explicit today. When the court in Arnstein refers to “copying” which is not itself an infringement, it must be suggesting copying merely of the work’s idea, which is not protected by the copyright. To constitute an infringement, the copying must reach the point of “unlawful appropriation,” or the copying of the protected expression itself. We analyze this distinction in terms both of the elements involved—idea and expression—and of the tests to be used—extrinsic and intrinsic—in an effort to clarify the issues involved.
The Tests Applied
In the context of this case, the distinction between these tests is important. Defendants do not dispute the fact that they copied the idea of plaintiffs’ Pufnstuf television series—basically a fantasyland filled with diverse and fanciful characters in action. They argue, however, that the expressions of this idea are too dissimilar for there to be an infringement. They come to this conclusion by dissecting the constituent parts of the Pufnstuf series—characters, setting, and plot—and pointing out the dissimilarities between these parts and those of the McDonaldland commercials.
This approach ignores the idea-expression dichotomy alluded to in Arnstein and analyzed today. Defendants attempt to apply an extrinsic test by the listing of dissimilarities in determining whether the expression they used was substantially similar to the expression used by plaintiffs. That extrinsic test is inappropriate; an intrinsic test must here be used. As the court in Arnstein stated:
“Whether (if he copied) defendant unlawfully appropriated presents, too, an issue of fact. The proper criterion on that issue is not an analytic or other comparison of the respective … compositions …. The plaintiff’s legally protected interest in the potential financial return from his compositions which derive from the lay public’s approbation of his efforts. The question, therefore, is whether defendant took from plaintiff’s works so much of what is pleasing to the [eyes and] ears of lay [persons], who comprise the audience for whom such popular [works are] composed, that defendant wrongfully appropriated something which belongs to the plaintiff. Surely, then, we have an issue of fact which a jury is peculiarly fitted to determine.” 154 F.2d at 472–78 (footnotes omitted).
Analytic dissection, as defendants have done, is therefore improper.
Defendants contest the continued viability of Arnstein. It is true that Arnstein’s alternative holding that summary judgment may not be granted when there is the slightest doubt as to the facts has been disapproved. See, e. g., First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–90, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Beal v. Lindsay, 468 F.2d 287, 291 (2 Cir. 1972); Janis v. Wilson, 385 F.Supp. 1143, 1147 (D.S.D.1974); Keller v. California Liquid Gas Corp., 363 F.Supp. 123, 126 (D.Wyo.1978). But the case’s tests for infringement have consistently been approved by this court. See, e. g., Goodson-Todman Enterprises, Inc. v. Kellogg Co., 513 F.2d 913, 914 (9 Cir. 1975); Overman v. Loesser, 205 F.2d 521, 523 (9 Cir. 1953). They have also been accepted by other courts. See, e. g., Universal Athletic Sales Co. v. Salkeld, supra, 511 F.2d at 907; Scott v. WKJG, Inc., 376 F.2d 467, 469 (7 Cir. 1967).[1] We believe Arnstein is still good law.
- ↑ The two-step approach of Arnstein does have its detractors. Judge Moore in a Second Circuit case described this approach as “merely an alternative way of formulating the issue of substantial certainty.” Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1023 n.2 (2 Cir. 1966). But the approach certainly tends to decrease the importance of the trier of fact in the first step and increase this importance in the second step. See 2 Nimmer § 143.53 at 641–43. In this it represents a significant modification of the older audience test. Id. We do not resurrect the Arnstein approach today. Rather, we formulate an extrinsic-intrinsic test for infringement based on the idea-expression dichotomy. We believe that the Arnstein court
