HERBERT ROSENTHAL JEWELRY CORP., Plaintiff-Appellant, v. Edward and Lucy KALPAKIAN,etc., Defendants-AppelleesNo. 24990UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT446 F.2d 738; 1971 U.S. App. LEXIS 9117; 170 U.S.P.Q. (BNA) 557July 7, 1971DISPOSITION: [**1]Affirmed.JUDGES: Browning, Ely, and Hufstedler, Circuit Judges.OPINIONBY: BROWNINGOPINION: [*739] BROWNING, Circuit Judge:Plaintiff and defendants are engaged in the design, manufacture, and sale of fine jewelry.Plaintiff charged defendants with infringing plaintiff's copyright registration of a pin in the shape of a beeformed of gold encrusted with jewels. A consent decree was entered, reciting that the parties had agreed to asettlement of the action and entry of the decree. It provided that plaintiff's copyright of the jeweled bee was"good and valid in law," that defendants had manufactured a jeweled bee "alleged to be similar," and thatdefendants were enjoined from infringing plaintiff's copyright and from manufacturing or selling copies ofplaintiff's jeweled bee pin.Later plaintiff filed a motion for an order holding defendants in contempt of the consent decree. The districtcourt, after an evidentiary hearing, found that while defendants had manufactured and sold a line of jeweledbee pins, they designed their pins themselves after a study of bees in nature and in published works and didnot copy plaintiff's copyrighted bee. The court further found that defendants' [**2] jeweled bees were "notsubstantially similar" to plaintiff's bees, except that both "do look like bees." The court concluded thatdefendants had neither infringed plaintiff's copyright nor violated the consent decree, and entered ajudgment order denying plaintiff's motion. We affirm.IBoth in this court and below, the parties have assumed that defendants are bound by their concession of thevalidity of plaintiff's copyright in the consent decree. Although we accept that assumption for purposes ofthis litigation, we expressly save the question [*740] whether the line of cases upon which the assumption isbased, see Siebring v. Hansen, 346 F.2d 474, 477 (8th Cir. 1965), and cases cited, survived Lear, Inc. v.Adkins, 395 U.S. 653, 89 S. Ct. 1902, 23 L. Ed. 2d 610 (1969), and in this circuit, Massillon-Cleveland-Akron Sign Co. v. Golden State Advertising Co., 444 F.2d 425 (9th Cir. 1971). See also, Blonder-TongueLaboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788(1971).IIPage1of4rosenthal jewelry corp. v. edward and lucy kalpakian, etc.10/2/2007http://0-faculty.oxy.edu.oasys.lib.oxy.edu/whitney/classes/ec319/readings/cases/property/rosen...Plaintiff contends that its copyright registration of a jeweled bee entitles it [**3] to protection from themanufacture and sale by others of any object that to the ordinary observer is substantially similar inappearance. The breadth of this claim is evident. For example, while a photograph of the copyrighted beepin attached to the complaint depicts a bee with nineteen small white jewels on its back, plaintiff argues thatits copyright is infringed by defendants' entire line of a score or more jeweled bees in three sizes decoratedwith from nine to thirty jewels of various sizes, kinds, and colors.Although plaintiff's counsel asserted that the originality of plaintiff's bee pin lay in a particular arrangementof jewels on the top of the pin, the elements of this arrangement were never identified. Defendants'witnesses testified that the "arrangement" was simply a function of the size and form of the bee pin and thesize of the jewels used. Plaintiff's counsel, repeatedly pressed by the district judge, was unable to suggesthow jewels might be placed on the back of a pin in the shape of a bee without infringing plaintiff'scopyright. He eventually conceded, "not being a jeweler, I can't conceive of how he might rearrange thedesign so it is dissimilar." [**4]If plaintiff's understanding of its rights were correct, its copyright would effectively prevent others fromengaging in the business of manufacturing and selling jeweled bees. We think plaintiff confuses the balanceCongress struck between protection and competition under the Patent Act and the Copyright Act.The owner of a patent is granted the exclusive right to exploit for a period of seventeen years (a maximumof fourteen years for design patents) the conception that is the subject matter of the patent. 35 U.S.C. §§154, 173. The grant of this monopoly, however, is carefully circumscribed by substantive and proceduralprotections. To be patentable the subject matter must be new and useful, and represent a nonobviousadvance -- one requiring "more ingenuity and skill than that possessed by an ordinary mechanic acquaintedwith the business"; an advance that would not be obvious to a hypothetical person skilled in the art andcharged with knowledge of all relevant developments publicly known to that point in time. Graham v. JohnDeere Co., 383 U.S. 1, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966). [**5] A patent is granted only after anindependent administrative inquiry and determination that these substantive standards have been met. 35U.S.C. § 131. This determination is subject to both administrative and court review. 35 U.S.C. §§ 134, 141,145, 146.Copyright registration, on the other hand, confers no right at all to the conception reflected in the registeredsubject matter. "Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is givenonly 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) (footnote omitted). Accordingly, the prerequisites for copyright registration areminimal. The work offered for registration need only be the product of the registrant. So long as it is not aplagiarized copy of another's effort, there [**6] is no requirement that the work differ substantially fromprior works or that it contribute anything of value. "The copyright protects originality rather than novelty orinvention." Id. at 218, 74 S. Ct. at 471. A copyright is secured simply by publishing the work with therequired notice, 17 U.S.C. § 10, and registration [*741] is accomplished simply by filing a claim anddepositing copies of the work with the Register of Copyrights, 17 U.S.C. §§ 11, 13. There is noadministrative investigation or determination of the validity of the claim. A certificate is refused only if theobject falls outside the broad
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