Case Title and Citation: Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir.1977) (Rehearing Denied)
Court: United States Court of Appeals for the Ninth Circuit (en banc)
Document status: Court Order and Opinion (cross-appeal by Defendants on finding of infringement)
Issue or relevant point: Defendants argued their product was dissimilar in numerous ways from the product which they were found to have copied. The Court considered whether this was significant enough to disprove evidence of a substantial similarity between the works.
Ruling or Findings: A determination of “substantial similarity” requires both extrinsic (factual, quantifiable similarities) and intrinsic (reasonable person) tests. But a finding of substantial similarity does not require there to be duplication or near identity.1
Shortly after the children’s television show HR Pufnstuf was launched in 1969, the creators, Sid and Marty Krofft, were approached by a marketing firm, Needham, about using the characters in a series of ads for McDonalds. After development on the ads began, Needham informed the Kroffts that the campaign had been cancelled. However, Needham hired former Pufnstuf employees, including the voice actor for many of the characters, and in 1971 premiered the first of many “McDonaldland” commercials using elements noticeably similar to those found in HR Pufnstuf.
On the cross-appeal by the Defendants the Court evaluated whether the jury erred in its infringement finding. In laying out the analysis for infringement, the Court recognized that ‘copying’ may be shown by proving “access” and “substantial similarity.” In this case there was no issue with ‘access’ given the initial collaboration between the Kroffts and the ad agency. The Defendants argued, however, that there was not a “substantial similarity” between the two productions, listing numerous differences between the two, and at one point describing in detail the attire of HR Pufnstuf compared to that of Mayor McCheese.2
The Court engaged in lengthy discussion of the idea-expression dichotomy alluded to in Arnstein3; basically, that one is free to copy an idea but that copyright and infringement focus on the expression of ideas. As one example, the Court provided:
“Michaelangelo's David is, as an idea, no more than a statute of a nude male. But no one would question the proposition that if a copyrighted work it would deserve protection even against the poorest of imitations. This is because so much more was added in the expression over the idea.”
Extrinsic and Intrinsic Tests
The Defendants did not dispute copying the Pufnstuf idea: a fantasyland filled with diverse and fanciful characters in action. But they did argue the expressions of the idea were beyond substantially similar when viewed with a dissection analysis. Their argument was premised on attention paid to constituent parts of the Pufnstuf series — characters, setting, and plot — and pointing out the dissimilarities between these parts and those of the McDonaldland commercials.4
The Court was unpersuaded by the Defendants position, and declared an ‘extrinsic’ test for substantial similarity was insufficient. The extrinsic test was deemed as one that included analytical dissection and expert testimony, and is not affected by the trier of fact. The extrinsic test may be comprised of a set of criteria which can be listed and analyzed, and requires examining, for example, “the type of artwork involved, the materials used, the subject matter, and the setting for the subject.”
But the Court believed one must also apply an ‘intrinsic’ test – a consideration of the expression of the idea as a whole – in order to properly determine infringement. This determination is to be made by a reasonable person, making it a question suited to a jury.
Of the Defendant’s arguments, the Court noted that they improperly tried to remove each individual element – the characters, setting, etc. – from the whole, and that the Court “[did not believe] that the ordinary reasonable person, let alone a child, viewing these works will even notice that Pufnstuf is wearing a cummerbund while Mayor McCheese is wearing a diplomat’s sash.”
The Court ultimately found the trial court jury had not erred in its finding of substantial similarity between HR Pufnstuf and the McDonaldsland advertisements.
This case developed the ‘extrinsic/intrinsic’ test in the proving of substantial similarity as part of the copyright infringement elements in the 9th Circuit.5 The extrinsic test looks for categorical evidence of similarity, while the intrinsic test calls upon a reasonable person to determine whether a substantial similarity between the works exists.
Unfortunately there is variation in tests for substantial similarity amongst the Courts of Appeals. More problematic is that some Courts have a different test for substantial similarity for a particular copyrighted subject matter versus another (e.g., “Abstraction-Filtration-Comparison” for software, and “ordinary observer” for music).
 "An infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred, or reproduced, with more or less colorable alterations to disguise the piracy." (quoting Universal Pictures Co., Inc. v. Harold Lloyd Corp., 162 F.2d 354, 360 (9th Cir.1947))
 Click here to see a side-by-side still shot comparison of the characters.
 The Defendants also contested the continued viability of Arnstein, but the Court recognized the part of Arnstein directed to a test for infringement remained good law.
 http://www3.ce9.uscourts.gov/jury-instructions/node/340 (with reference to Cavalier v. Random House, 297 F.3d 815, 824 (9th Cir.2002) (there can be no finding of substantial similarity unless the plaintiff satisfies both the extrinsic and intrinsic tests)).