Even if two works are substantially similar, there may not be infringement if the similarities are only in the uncopyrightable elements of the work. For example, in the case of Herbert Rosenthal Jewelry Corp. v. Kalpakian (446 F.2d 738 (9th Cir. 1971)) two jewelers produced bejeweled pins in the shape of a bee. While the two works were quite similar to each other, the Court found that there was no infringement.

  • The Court reasoned that the idea of a bejeweled bee pin was not copyrightable, only the expression was copyrightable.
  • The Court found that there really was no alternative way of making a bejeweled bee pin that wouldn't be substantially similar to all other bejeweled bee pins on the market.
  • Therefore, based on the doctrine of merger, since there was no other way to express the uncopyrightable idea, there was no infringement even though the pins were substantially similar.
    • The doctrine of merger is that if an idea can only be expressed in one way or a few ways, granting a copyright on that expression would effectively lock up anybody from using the idea. Therefore, since you can't copyright ideas, you can't copyright those limited ways to express the idea because the idea behind the work merges with its expression.