Mattel, Inc. v. American First Run Studios

MEMORANDUM **

A plaintiff claiming copyright infringement must “prove that ... the defendants] works are substantially similar to his .... in both ideas and expression. ” Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1507 (9th Cir.1987) (quoting Frybarger v. Int’l Bus. Mach. Corp., 812 F.2d 525, 529 (9th Cir.1987)) (emphasis in original). Ideas are not protected, only expression is. Rachel, 831 F.2d at 1507 . However, “even similarity in expression is noninfringing when the nature of the creation makes similarity necessary.” Id. In such cases, the expression of ideas is protected only from “virtually identical copying.” Id.

A “side-by-side comparison[ ] of the works show[s] they are not [substantially] similar in expression.” Id. Any similarity between them involves “expression [that] is as a practical matter indispensable, or at least standard, in the treatment of [the idea].” Frybarger, 812 F.2d at 530 (internal quotation marks and citations omitted). All depictions of TARZAN will necessarily share these similarities: They will all be young, muscular men with naked bodies except as covered by a loincloth, see S.E.R. at 7, 8, 53, 68, 69, because “the common idea is only…