Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp.
562 F.2d 1157 (9th Cir. 1977)
The Kroffts made a television
show that contained people dressed up in funny costumes. McDonalds was a
restaurant that ran a series of commercials containing people dressed up
in funny costumes similar to the ones on the Krofft's show. The Kroffts
sued for copyright infringement.
The Kroffts argued that the
McDonald's commercials were substantially similar to their work.
McDonald's admitted that
they got the idea from the Kroffts' but that their characters were
dissimilar enough to fall outside the scope of Kroffts' copyright
McDonald's didn't directly
copy the costumes and had all different characters, but they had the
same style and feel as the Kroffts' work.
The Trial Court found for the
Kroffts. McDonald's appealed.
The Appellate Court affirmed.
The Appellate Court noted
that you can copyright an expression,
but not an idea.
See Nichols v. Universal
Pictures Corp. (45 F.2d 119 (2d
The Court found that there
were two tests that courts should apply to show if a work was substantially
similar enough to be a copy of an expression, and not just of an idea.
The extrinsic test, which looks at specific criteria that can be
listed and analyzed (type of artwork, materials used, subject matter).
This can be decided as a
matter of law and with expert testimony.
The intrinsic test, which considers the impressions of the
average reasonable reader or spectator.
This is a mater of fact
and should be decided by a jury.
The Court applied the tests
and found that while under the extrinsic test, the works were not substantially
similar, McDonald's characters still
invoked the same "concept and feel" as the Kroffts. Therefore
it was still an infringement.
The Court noted that
"duplication or near identity is not necessary to establish