HERBERT ROSENTHAL JEWELRY CORPORATION, Plaintiff-Appellant,

HONORA JEWELRY CO, INC., et al., Defendants-Appellees.

No. 214, Docket 74-1774.

United States Court of Appeals, Second Circuit.

Argued Nov. 20, 1974.

Decided Dec. 20, 1974.

Charles Sonnenreich, New York City, for plaintiff-appellant.

Daniel A. Pollack, New York City (Martin I. Kaminsky, Neil D. Thompson, Pollack & Singer, New York City, of counsel), for defendants-appellees.

Before SMITH, HAYS and MANSFIELD, Circuit Judges.

PER CURIAM: The sole issue on this appeal is whether plaintiff-appellant's copyright of a design for a gold jeweled pin in the shapc of a turtle is infringed by a similar-appearing pin made and sold by defendants. We agree with the district court's holding that it was not infringed and affirm its order granting summary judgment dismissing the complaint which sought damages, an accounting, injunctive and other relief.

On December 4, 1967, appellant, a designer and manufacturer of jewelry, act-

ing in apparent compliance with the copyright laws, 17 U.S.C. § 1, et seq., secured the issuance by the Register of Copyrights of a copyright of a design of its gold pin, which is in the shape of a turtle and bears an oval cluster of round precious stones on the back shell, or carapace, of the turtle. Some time in 1971 defendant Honora Jewelry Co., Inc. ("Honora"), which is controlled by the two other defendants, began producing and selling a gold turtle pin with jewelin an oval arrangement on its back, similar in appearance to appellant's pin. In 1973 appellant brought the present suit for infringement.

Appellant concedes that Honora's pin is not an exact duplicate of its piece and that appellant does not have any evidence of direct copying by defendants. Defendants, while admitting that they knew of appellant's pin and, indeed, had in 1968 produced an exact copy which led to the issuance of 'a decree enjoining its sale as an infringement, see Herbert Rosenthal Jewelry Corp. v. Grossbardt,  428 F.2d 551 (2d Cir. 1970), contend that the alleged infringing pin in the present case was independently created and is sufficiently different from appellant's pin to preclude the possibility of copyright infringement.

A comparison of the two pins, which were submitted to us upon oral argument and which are shown in photographic exhibits, discloses that, although there are numerous differences between the two, which have been detailed by the district court, each conforms generally to the shape of a turtle as that reptile appears in nature, with upper shell, legs, protruding head and tail. Each also bears an oval cluster of jewels on its back.

The threshold question is what characteristics of appellant's design have gained copyright protection. Since ail turtles are created more or less along the same lines, appellant cannot, by obtaining a copyright upon one design of a turtle pin, exclude all others from manufacturing gold turtle pins on the ground that they are substantially similar in ap5C9 F.2ci'5 pearance. Clearly, a copyright does not offer protection of such breadth. "Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea'not the idea itself," Mazer v. Stein,  347 U.S. 201, 217, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954). In Herbert Rosenthal Jewelry Corp. v. Kalpakian,  446 F.2d 738 (9th Cir. 1971), a case involving a claimed infringement of a jeweled bee pin produced by these same defendants, the court said: "We think the production of jeweled bee pins is a larger private preserve than Congress intended to be set aside in the public market without a patent. A jeweled bee pin is therefore an 'idea' that defendants were free to copy." (446 F.2d at 742).

Appellant contends that, even assuming the foregoing limitations upon the scope of protection offered by its copyright, the protection nevertheless extends to "the essence" of its design, which it describes as consisting principally of the utilization of an oval shaped cluster of 10 jewels on the back of its turtle.

The test of copyright infringement is whether the similarity between the products would lead "the average lay observer . . . [to] recognize the alleged copy as having been appropriated from the copyrighted work," Ideal Toy Corp. v. Fab-Lu, Ltd.,  360 F.2d 1021, 1022 (2d Cir. 1966); Peter Pan Fabrics, Inc. v. Martin Werner Corp.,  274 F.2d 487 (2d Cir. 1960). Applying this test here, the district court concluded that the average layman would not find sufficient similarity in the parties' particular expressions of the idea of a jeweled turtle pin to warrant a finding of infringement. We agree.

Going beyond the initial observation that both pins are turtles and both are jeweled, we believe the average layman would indeed detect numerous differences, the existence of which are conceded by appellant's President, which' tend to eliminate any substantial similar-

ity of protected expression.^{Footnote 1} The idea of placing jewels on the back of the carapace is rather obvious. Although the oval arrangement of 10 gems might at first blush appear to possess individuality of expression, further observation discloses that it merely conforms to the normal shape of the turtle's back and the pattern of its vertebrae segments, of which there are in nature not less than 10 nor more than 12. Accordingly, there being no dispute as to material factual issues, we agree with the district court's conclusion that there was no copyright infringement and affirm its order granting summary judgment dismissing appellant's complaint.