MEMORANDUM OPINION

Plaintiff is the claimed copyright proprietor of a television game show, “To Tell the Truth.” The defendants, Kellogg Company and its advertising agency, Leo Burnett Company, Inc., produced a television commercial entitled “Know Your Tiger,” in which panelists ask questions of three “Tony the Tigers.” Plaintiff in this action alleges that defendants infringed both its statutory and common law copyright by copying and using copyrighted material from its television show in defendants’ commercial and seeks an injunction and damages.

Defendants have moved for summary judgment against plaintiff. For purposes of this motion, defendants have conceded that all issues of fact must be resolved in favor of the plaintiff. Thus, for purposes of the motion the court will assume that (1) plaintiff complied with the copyright law in all respects and has a valid statutory and common law copyright in the television game show “To Tell the Truth”; (2) defendants had access to plaintiff’s copyrighted work; and (3) defendants copied from the television show, “To Tell the Truth,” in their television commercial.

The sole issue to be decided on the motion for summary judgment is whether as a matter of law there is substantial similarity between elements and materials protected by copyright in plaintiff’s television program, on the one hand, and defendants’ television commercial, on the other. In making this determination, the court must resolve whether a trier of fact could find that defendants’ commercial is substantially similar to elements of plaintiff’s work that enjoy copyright protection. See 2 M. Nimmer, Copyright § 138 (1972).

It is well settled that “ideas” are not protected against copying by the copyright laws and common law; only particular “expressions” of ideas receive such protection. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741-742 (9th Cir. 1971); Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S. 902 , 51 S.Ct. 216 , 75 L.Ed. 795 (1931). Thus, the court must consider only the extent of the defendants’ copying from protected expressions contained in plaintiff’s television show, rather than the extent of copying from ideas. If, as a matter of law, the nature and extent of such copying did not result in substantial similarity between defendants’ commercial and the protected expressions in plaintiff’s program — or if only ideas were copied — then the motion for summary judgment should be granted.

The initial issue in this case amounts to a question of categorization — do the elements of plaintiff’s program which, for purposes of this motion are considered to have been copied in defendants’ commercial, constitute “ideas,” or “expressions” of ideas?

The distinction between “ideas” and “expressions” has received much judicial attention. Unfortunately, it has not been possible to develop an objective and articulable standard capable of general application. The determination as to whether material in a creative work is an “idea” or an “expression” necessarily involves a subjective determination. As Judge Learned Hand concluded in Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960), “Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.”

In the leading case of Nichols v. Universal Pictures Corp., supra, Judge Hand wrote:

Perhaps the best recent exposition of the categorization problem appears in Herbert Rosenthal Jewelry Corp. v. Kalpakian, supra. The issue in that case was whether the defendants had infringed the plaintiff’s copyright in a jeweled pin in the form of a bee. Judge Browning wrote:

As Professor Nimmer has noted, the doctrine that infringement may be found if the defendant copies not merely the idea, but the “expression” of the idea contained in plaintiff’s work, “is but a reformulation not a solution of the problem.” The problem remains one of determining “the extent of similarity which will constitute a substantial and hence infringing similarity.” 2 M. Nimmer, Copyright, §§ 143.1, 143.11, at 619, 622 (1972).

At the hearing on the motion for summary judgment in this case, the court viewed tapes of the television program “To Tell the Truth” and also the television commercial “Know Your Tiger.” The court finds that as a matter of law, there is no substantial similarity between any protected expressions in plaintiff’s work and defendants’ television commercial. It is the court’s view that the materials are so dissimilar that, as a matter of law, the defendants have not infringed upon plaintiff’s copyright.

While the court wishes that it could articulate more precisely the specific reasons behind its conclusion that as a matter of law there is no substantial similarity between any protected expressions in plaintiff’s program and defendants’ commercial, the posture of this ease makes such an articulation impractical. As Judge Browning observed in Herbert Rosenthal Jewelry Corp. v. Kalpakian, supra, “At least in close cases . . . the classification the court selects may simply state the result reached rather than the reason for it.” 446 F.2d at 742 . No matter how detailed this court’s opinion might be, on appeal the Court of Appeals would have to view the two films in order to make a judgment of the correctness of this court’s decision.

The court will enter summary judgment in favor of defendants.