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The rule in the Ninth Circuit is that no substantial similarity of expression will be found when the idea and its expression are inseparable, given that protecting the expression in such circumstances would confer a monopoly of the idea upon the copyright owner. Nor can copyright protection be afforded to elements of expression that necessarily follow from an idea, or to scenes a faire, i.e., expressions that are as a practical matter, indispensable or at least standard in the treatment of a given idea.
Plaintiff-appellee Data East USA, Inc. possessed a copyright to its "Karate Champ" video arcade game. Defendant-appellant Epyx, Inc. developed a "World Karate Championship" arcade game, which, like the plaintiff’s game, depicted a karate match between two combatants, one in white and one in red. Plaintiff sued defendant for copyright, trademark, and trade dress infringement. The district court found a copyright infringement and issued a permanent injunction and impoundment. Defendant appealed the grant of the permanent injunction.
Should the defendant be held liable for copyright, trademark, and trade dress infringement, thereby warranting the grant of permanent injunction against the defendant?
On appeal, the court reversed, holding that the district court did not give due weight and import to its findings, which supported the argument that the similarities between the parties' games resulted from unprotectable expression. The court determined that the idea of a martial arts karate combat game and the expression of the idea were inseparable, and as such they were not protectable. The court found that the only protection that existed was against identical copying, which was not an issue in the case.