dissenting:
I dissent.
The snowmen were placed before the court, my brethren looked for differences and of course found them. But in doing so, they violate this circuit’s rule that products are substantially similar if “the ordinary observer, unless he set out to detect the disparities would be disposed to overlook them, and regard their aesthetic appeal as the same. That is enough; and indeed it is all that can be said, unless protection against infringement is to be denied because of variants irrelevant to the purpose for which the design is intended.” Peter Pan Fabrics, Inc. v. Martin Weiner, 274 F.2d 487, 489 (2d Cir. 1960) (L. Hand). The key to the ordinary observer test is similarities, not differences. Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 913 (2d Cir. 1980) quoting Novelty Textile Mills v. Joan Fabrics Corp., 558 F.2d 1090, 1093 n.4 (2d Cir. 1977). Considering the “primary elements” of the snowmen, Malden Mills, Inc. v. Regency Mills, Inc., 626 F.2d 1112, 1114 (2d Cir. 1980), I think these are similar toys and I think toy buyers will find them similar too.
The toy buyers will not have the two side by side for comparison as we did. Nor will they carry rulers to detect that the snowmen’s nose widths, lip lengths, eye spaces and button diameters differ by fractions of an inch. Nor will they pause for serious investigation of the different stitching or contours. No; the average observer’s glanee will light on one with the same favor as on the other. They share similar composition (two snowballs, two buttons, scarf, face and hat), they share similar facial expressions, and, in general, they share the same “aesthetic appeal.”
It is true that plaintiff cannot copyright the “idea” of a snowman. But Eden Toys created something special in its current snowman. The majority notes that Snowman II, replacing Snowman I, won a considerable following. Eden Toys’ design and artwork earned the public’s favor. It is that design and that artwork that the copyright laws are intended to protect. It is that design and artwork — with its attendant commercial success — that Marshall Field has taken. In sanctioning this misappropriation, the majority leaves open to future copyists the chance to seize the essence *502of a work while escaping liability through minor changes. Until today, this circuit frowned on such a practice. See Concord Fabrics, Inc. v. Marcus Bros. Textile Corp., 409 F.2d 1315, 1316 (2d Cir. 1969) (per curiam).
I would reverse the judgment of the district court and remand for further proceedings.