(concurring and dissenting):
I concur in Judge Gurfein’s carefully reasoned opinion, except for its remand of a *1095portion of the case to the district court to determine whether color is an ingredient of the copyright and to dispose of the balance of the infringement claims. In my view the color scheme should be treated as one of the elements of the copyrighted design and, since we are in as good a position as the district court to resolve the infringement issue, we should hold that Novelty’s Style 253 is not infringed by any of the alleged infringing fabrics produced by Joan other than its “Fleetwood Spice” and “Sand.”
The subject of Novelty’s Certificate of Copyright is a textile design consisting of an upholstery fabric woven in a common Argyle or bias plaid, using a combination of brown and camel or beige colors on a light background. When the alleged infringing Joan fabrics were laid alongside Novelty’s copyrighted design No. 253, “Cane,” at a distance of approximately 20 feet in the court, it was readily apparent to ordinary lay observers, i. e., the members of this panel, that Joan’s “Fleetwood Spice” and CK-0028 (entitled “Sand”), which were produced after it had access to Novelty’s 253, were substantially similar to 253.
Of course all Argyle or bias plaids are somewhat similar, consisting of diamonds in stripes, which may vary in width, shading, spacing, mesh composition, and color. At a distance of 15 feet or more the similarity between Novelty’s 253, on the one hand, and the two infringing Joan plaids, on the other, was substantial, not solely because of the shading, spacing, composition, and juxtaposition of the diamonds and stripes, but principally because of the identical color scheme which lent the same overall effect to the designs. The general impression from a distance is described by Judge Gur-fein:
“When the Joan fabric is placed over a portion of the Novelty fabric, the design, dimensions and colors match up and the appearance is of one fabric.” (Emphasis supplied).
However, a closer comparison of the fabrics (at a distance of two to five feet) reveals several marked differences, which were noted by Judge Werker. The stripes are of differing widths, compositions and dimensions, which are clearly discernible. One main cross-bar, for instance, consists of strands solidly woven together on Novelty’s “Cane” to form a bar Vs" wide, whereas the bars (or multiple bars) similarly situated on Joan’s “Fleetwood Spice” consists of a series of separate strands, each of which except the middle two are totally separated from one another, measuring lVi" in width. Moreover, when one turns to the other allegedly infringing Joan fabrics, samples of which have been furnished to us by the parties, it will be noted that, quite aside from the differences observed by Judge Werker, the fabrics produced by Joan in other color combinations and with different shading and accent to the lines, mesh and stripes, are not substantially similar to Novelty’s 253, even at a distance of 15 feet or more.
The majority express doubt as to whether color or color schemes should constitute part of a copyrighted design and remand the case to the district court for further consideration of that issue after briefing by the parties. I believe this is unnecessary. If color did not constitute an integral element of copyrighted design, we have already gotten off on the wrong foot. As already noted, the similarity of colors between the copyrighted Novelty design and the two Joan designs found to infringe was an influential factor. If the copyright extended only to the 253 design in black and white, we should have limited ourselves to a comparison of the alleged infringing designs with Novelty’s 253 in black and white, which in my view would lead us, upon duplicating in black and white the courtroom comparison made by us, to hold that the designs were not substantially similar.
Our courtroom comparison, therefore, implicitly recognizes that where (as here) a design is registered in a particular colorway rather than in black and white, that colorway is part of the copyrighted design. We have previously sanctioned consideration of color as a factor in determining whether there has been infringement of a copyrighted design. See Soptra Fabrics Corp. v. *1096Stafford Knitting Mills, 490 F.2d 1092, 1094 (2d Cir. 1974), and decisions cited therein, including Scarves by Vera v. United Merchants and Manufacturers, 173 F.Supp. 625, 627 (S.D.N.Y.1959). Although we have never ruled as a matter of law on the issue, it seems to me that if color is to be taken into consideration for infringement purposes, it must inevitably be considered as an element of the copyrighted subject matter.
In short, what Novelty copyrighted was its plaid design in a brown, beige and white color combination. In this well-plowed field of Argyle and bias plaids, it obviously did not gain protection against the manufacture of all similar textile plaids, even though some might be produced by persons who had access to its copyrighted design. In my view it gained copyright protection for the overall effect or impression created by the particular combination of lines, space, juxtaposition, shading and color scheme. Whether another manufacturer could avoid infringement by changing the color scheme would depend in a particular case on how important the color scheme was in the overall effect or impression of the design. Obviously if the design consisted merely of a simple red square or circle with dots, a change by the copier from red to green would be of great importance. On the other hand, if the design were an intricate or unusual one, as the court noted in Soptra, a mere change in color would be insufficient to avoid infringement.
Since I believe the applicable principles are clear and that nothing would be gained by further prolongation of this case, I would rule now that, except for the “Fleet-wood Spice” and “Sand” designs, there was no infringement of Novelty’s 253 and to that extent affirm the decision of the district court.