Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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| This information is taken directly from the court opinion. It is not taken out of context nor is it altered. |
| From Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25 (1st Cir. 2001) |
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In Concrete Machinery, we explained the rationale behind the merger doctrine: Some ideas admit of only a limited number of expressions. When there is
essentially only one way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression. [Even] [w]hen the idea
and its expression are not completely inseparable, there may still be only a limited number of ways of expressing the idea.
843 F.2d at 606 (internal citations omitted). In such cases, the plaintiff has the heavy burden of showing "near identity" between the works at issue. Id. at 606-07 (citing Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157, 1167 (9th Cir. 1977), and Flag Fables Inc. v. Jean Ann's Country Flags & Crafts, Inc., 730 F. Supp. 1165, 1171 (D. Mass. 1990)). This heightened showing "is necessary because, as idea and expression merge, fewer and fewer aspects of a work embody a unique and creative expression of the idea; a copyright holder must then prove substantial similarity to those few aspects of the work that are expression not required by the idea." Id. at 607 (citing Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 908 (3d Cir. 1975)). In general, the merger doctrine is most applicable where the idea and the expression are of items found in nature, or are found commonly in everyday life. See, e.g., Designer's View, 764 F. Supp. at 1478. For example, we invoked the merger doctrine in Concrete Machinery where the idea at issue was a "realistic-looking life size deer." 843 F.2d at 607; see also Leigh, 212 F.3d at 1214-15 (photograph of statue in public domain); Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971) (pin of a "jeweled bee"). As the district court found, six of the labels at issue were fruits and flowers found in nature; the remaining three were representations of common flavors. For the six natural items, there were few associated expressions, of which the most obvious was a realistic representation of the fruit or flower at issue. For the three flavors, the most obvious expression was a realistic representation of a food commonly associated with that flavor. Because the merger doctrine applies, the copyright on Yankee's labels does not prevent Bridgewater from using the same subject matter on its labels, even if the genesis for Bridgewater's choice of subject matter was Yankee's labels. The merger doctrine does not, however, allow the identical reproduction of photographs of realistic objects when there are sufficient details in those photographs to make them unique. Concrete Mach., 843 F.2d at 609-10 (finding possibility of infringement of concrete deer based on stylized posture and facial expression). If Bridgewater had scanned Yankee's labels into a computer and reproduced them exactly, it would have certainly infringed Yankee's copyrights on those labels. Even if Bridgewater had taken its own photographs, but had arranged the subjects in a "nearly identical" manner to that of Yankee, a jury could have found the requisite showing of substantial similarity to support copyright infringement. Moreover, although Yankee does not enjoy copyright protection on the subject matter of its photographs because of the merger doctrine, its choices as to lighting, background, angle and positioning are protected. Leigh, 212 F.3d at 1215; Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992). |
