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Law School Case Brief

Herbert Rosenthal Jewelry Corp. v. Kalpakian - 446 F.2d 738 (9th Cir. 1971)


When the "idea" and its "expression" are thus inseparable, copying the "expression" will not be barred, since protecting the "expression" in such circumstances would confer a monopoly of the "idea" upon the copyright owner free of the conditions and limitations imposed by the patent law. 


Plaintiff and defendants are engaged in the design, manufacture, and sale of fine jewelry. Plaintiff charged defendants with infringing plaintiff's copyright registration of a pin in the shape of a bee formed of gold encrusted with jewels. A consent decree was entered, reciting that the parties had agreed to a settlement of the action and entry of the decree. It provided that plaintiff's copyright of the jeweled bee was "good and valid in law," that defendants had manufactured a jeweled bee "alleged to be similar," and that defendants were enjoined from infringing plaintiff's copyright and from manufacturing or selling copies of plaintiff's jeweled bee pin.

Later plaintiff filed a motion for an order holding defendants in contempt of the consent decree. The district court, after an evidentiary hearing, found that while defendants had manufactured and sold a line of jeweled bee pins, they designed their pins themselves after a study of bees in nature and in published works and did not copy plaintiff's copyrighted bee. The court further found that defendants' jeweled bees were "not substantially similar" to plaintiff's bees, except that both "do look like bees." The court concluded that defendants had neither infringed plaintiff's copyright nor violated the consent decree, and entered a judgment order denying plaintiff's motion. 


Did the defendants infringe plaintiff’s copyright and consequently violate the consent decree entered into by the parties?




In deciding for the case, the court noted the difference between a patent and a copyright; according to the Court, a copyright conferred no right to the conception reflected in the general subject matter and just protected the expression of the idea, not the idea itself. The Court determined that a copyright must not be treated like a patent or it would confer rights over private activity without satisfying the procedural and substantive prerequisites to the grant of such privilege. The Court reasoned that defendants were entitled to use the idea of a jeweled bee but were not able to copy plaintiff's expression of that bee. However, the Court found that, because the idea of the bee and its jeweled expression were inseparable, copying the expression was not barred; thus, the Court held that the defendants did not infringe plaintiff’s copyright nor violate the consent decree entered into by the parties.

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