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Once it is established that a party has a valid copyright, whether registered or not, the next question with respect to copyright infringement is whether another person has copied the protected work. Copying may be proven by direct evidence, but that is often hard to come by. In the alternative, copying may be inferred where the defendant had access to the copyrighted work and the accused work is substantially similar to the copyrighted work. It is not essential to prove access, however. If the two works are so similar as to make it highly probable that the later one is a copy of the earlier one, the issue of access need not be addressed separately, since if the later work was a copy its creator must have had access to the original. The more a work is both like an already copyrighted work and--for this is equally important--unlike anything that is in the public domain, the less likely it is to be an independent creation. If the inference of copying is drawn from proof of access and substantial similarity, it can be rebutted if the alleged copier can show that she instead independently created the allegedly infringing work. A defendant independently created a work if it created its own work without copying anything or if it copied something other than the plaintiff's copyrighted work.
The present case involved dolls made by Novelty, Inc. that were very similar to dolls made by appellee JCW Investments, Inc., d/b/a Tekky Toys, another toy producer that held both copyright and trademark rights with respect to its dolls. Both were plush dolls in the likeness of a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Both emitted passing gas noises when the doll's extended finger was squeezed, and both cracked jokes about the function of passing gas. A jury found that there was both copyright and trademark infringement by Novelty, Inc, and awarded appellee compensatory damages as well as punitive damages under state unfair competition law. After a special master proceeding, the court also awarded full attorneys' fees. Novelty, Inc. challenged the decision.
Was the finding of copyright and trademark infringement against Novelty, Inc. warranted under the circumstances?
The court affirmed the judgment of the district court, concluding that no objective person would find the dolls to be more than minimally distinguishable. Moreover, the president of Novelty, Inc. admitted having access to the copyrighted doll and using it as the basis for the creation of his doll. The court found that the dolls were so similar that an inference of copying could be drawn even without the evidence of access. The court also found that the Lanham Act did not preempt the state's punitive damages law. Finally, while the attorneys' fees awarded were roughly double the damages, the court found no abuse of discretion.