Both parties to this suit were engaged in the design, manufacture, and sale of fine jewelry. Plaintiff Herbert Rosenthal Jewelry Corp. (“Herbert Rosenthal Jewelry”) alleged defendants Edward and Lucy Kalpakian and others (collectively, the “Kalpakian defendants”) infringed the copyright of its pin in the shape of a bee formed gold encrusted with jewels.

The district court found in favor of the Kalpakian defendants. Although Herbert Rosenthal Jewelry asserted that “arrangement of jewels on the top of the pin” was original and therefore copyrightable, when repeatedly pressed by the district judge, Herbert Rosenthal Jewelry was unable to suggest how jewels might be placed on the back of a pin in the shape of a bee without infringing Herbert Rosenthal Jewelry’s copyright. Thus, the district court concluded that the parties’ bees were not substantially similar except for its resemblance to bees, which is not a protectable expression on its own under copyright law.

The Ninth Circuit affirmed. The appellate court first established that in copyright law, protection is given only to the expression of the idea—not of the idea itself. As applied to the facts, the appellate court found that “any inference of copying based upon similar appearance lost much of its strength because both pins were lifelike representations of a natural creature.” Moreover, even if it appears unlikely that the Kalpakian defendants were able to totally “close their minds” to Herbert Rosenthal Jewelry’s well-known jeweled bee pin during their design process, this alone is not sufficient to establish that the Kalpakian defendants copied Herbert Rosenthal Jewelry’s expressions.

Thus, the appellate court explained that the idea and expression of the bee pins are indistinguishable on the record. Given Herbert Rosenthal Jewelry could not conceive of a pin in the shape of a bee that would materially differ from its work, the appellate court explained “what is basically at stake is the extent of the copyright owner’s monopoly.” In this light, the appellate court considered the “preservation of the balance between competition and protection reflected in the patent and copyright law.” The appellate court held that when the idea and its expression are inseparable as in this case, copying the expression will not be barred since protecting the expression would “confer monopoly of the idea,” which is antithetical to the Copyright Act.