Tabberone is pronounced tab ber won not tay ber own

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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 Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F. 2d 738 (9th Cir 1971): A finding that defendants "copied" plaintiff's pin in this sense, however, would not necessarily justify judgment against them. A copyright, we have seen, bars use of the particular "expression" of an idea in a copyrighted work but does not bar use of the "idea" itself. Others are free to utilize the "idea" so long as they do not plagiarize its "expression." As the court said in Trifari, Krussman & Fishel, Inc. v. B. Steinberg-Kaslo Co., 144 F.Supp. 577, 580 (S.D.N.Y.1956), where the copyrighted work was a jeweled pin representing a hansom cab, "though an alleged infringer gets the idea of a hansom cab pin from a copyrighted article there can be no infringement unless the article itself has been copied. The idea of a hansom cab cannot be copyrighted. Nevertheless plaintiff's expression of that idea, as embodied in its pin, can be copyrighted." Or as Judge Hand put it in Sheldon v. Metro-Goldwyn Pictures Corp., supra, 81 F.2d at 54, "defendants were entitled to use, not only all that had gone before, but even the plaintiffs' contribution itself, if they drew from it only the more general patterns; that is, if they kept clear of its `expression.'" See also Millworth Converting Corp. v. Slifka, 276 F.2d 443, 445 (2d Cir. 1960). The critical distinction between "idea" and "expression" is difficult to draw. As Judge Hand candidly wrote, "Obviously, no principle can be stated as to when an imitator has gone beyond copying the `idea,' and has borrowed its `expression.'" Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). At least in close cases, one may suspect, the classification the court selects may simply state the result reached rather than the reason for it. In our view, the difference is really one of degree as Judge Hand suggested in his striking "abstraction" formulation in Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930). The guiding consideration in drawing the line is the preservation of the balance between competition and protection reflected in the patent and copyright laws.