Copyright, like many areas of law has its pat phrases; one of the most common is that there is no protection for ideas, but only for the expression of ideas. As Judge Easterbrook observed, this is not an analytical tool, but merely a way to state a conclusion. See Nash v. CBS, Inc., 889 F.2d 1537, 1546 (7th Cir. 1990).
Another pat phrase in copyright is "I am only trying to protect my combination of unprotectible elements," including ideas. Sometimes the statement is accurate, but in other cases, the compilation argument is a disguised effort to protect ideas after all. Jewelry designs present a compelling case for careful scrutiny of the "I'm only trying to protect a combination of unprotectible elements" argument. Defendants' rebuttal to this argument have two prongs: plaintiff's design is not protectible at all; or, it is (barely) protectible, but not infringed. In Todd v. Montana Silversmith, Inc., 379 F. Supp.2d 1110 (D. Col. 2005), the court found plaintiff's barbed wire design unoriginal.
David Yurman has brought a number of suits over his use of cable in his upscale jewelry. See Yurman Design Inc. v. PAJ, Inc., 262 F.3d 101, 112 (2d Cir. 2001)(affirming finding of willful infringement); Yurman Design Inc. v. Chaindom Enterprises, Inc., 2003 WL 22047846 (S.D.N.Y. Aug. 29, 2003), Civ. No. 99 Civ. 9307 (reviewing plethora of earlier opinions in the case); Yurman Design Inc. v. Garden Jewelry Mfg. Corp., 2000 WL 1141428 (S.D.N.Y. Aug. 11, 2000, 99 Civ. 10507). A recent suit, Yurman Studio Inc. v. Andin International, Inc. et al, 08 Civ. 01159 (S.D.N.Y.), presents another aspect of this. The case was originally assigned to the great judge Miriam Cedarbaum, who practised copyright law before she went on the bench. I understand that at a conference on the case she indicated that it was her initial view there was no infringement. She later recused herself because her son is a lawyer at a firm of representing another defendant who was added to the case. Here is a side by side of some of plaintiff's design and some of defendants':
There are three basic elements to both designs: (1) the middle part which as a diamond "pave" (think pavement) arrangement; (2) a gold frame around the middle part, and (3) a chain design "skirt" around the gold frame. This is a common combination in the industry. Here are a few examples:
Defendant alleged independent creation and lack of access, but on the substantial similarity issue there are a number of differences only some of which can be seen in the photos above. There is for example only one cable in Yurman's, but three in defendants, and they are of a different type of design and perspective. One can of course see similarities, but similarities alone don't give rise to infringement: the similarities may exist but the two works be independently created (as is alleged here); and the similarities may be in uncopyrightable elements. The danger in this dispute is that none of the elements are themselves protectible. But in looking at the two designs side by side, one tends to focus on the similarities in the discrete elements, and not focus as one should on the bare compilation claim. While I think there are differences in the discrete elements, what probably led Judge Cedarbaum to conclude there was no similarity was her (correct) focusing on the claim that plaintiff can at best own copyright in the combination of three standard, nonprotectible elements, and that therefore any similarities in the discrete elements are irrelevant. Whether the trees are similar (I think not), the forest isn't, and it is only the forest that is protectible, if at all in this case.