In the case at bar the troll dolls, residents of the public domain, are the analogues to the puppies in Rogers v. Koons. The requirement that Friedman's derivative illustrations contain at least a "dash" of originality is more than satisfied by the distinctive pupils of his Trolls' eyes (small green circles within larger yellow circles), their sharply pointed and elongated ears, and their varying facial expressions. The elements of originality present in Friedman's illustrations may be discerned by comparing those illustrations with the four Troll dolls Landoll attached as Exhibits B, C, D, and E to the affidavit of Robert L. Epstein, its attorney. Their ears are not pointed and the eyes are quite different.
Accordingly I conclude that Friedman's depictions of Trolls appearing in Modern's publications are protected by the copyrights Modern is entitled to enforce. I reject Landoll's contention that only the particular poses and postures in which those figures appear are protectible.
To establish an infringement of a copyright, a plaintiff must show both ownership of a valid copyright and that defendant copied the protected material without authorization. Rogers v. Koons at 306, citing Weissmann v. Freeman, 868 F.2d 1313, 1320 (2d Cir.), cert. denied, 493 U.S. 883, 107 L. Ed. 2d 172, 110 S. Ct. 219 (1989). For the reasons stated, Modern has shown the first element. It is manifest that Modern has also shown that Landoll copied the protected work without authorization.
Landoll does not suggest that it obtained Modern's authority to publish the Troll illustrations Landoll commissioned Friedman to create. The remaining issue is copying. Copying may be proved by direct evidence, a "rare scenario," Rogers v. Koons at 307, or by proof of defendant's access to the protected work and such substantial similarity between the works that copying may be inferred. Where "the accused work is so substantially similar to the copyrighted work that reasonable jurors could not differ on this issue," the copyright owner is entitled to summary judgment. Rogers v. Koons at 307, citing Warner Brothers, Inc. v. American Broadcasting Cos., Inc., 654 F.2d 204, 207 (2d Cir. 1981).
Modern contends that Nalle's June 2, 1992 letter to Friedman, requesting Friedman to "key" his Troll illustrations for Landoll "similarly to the ones you did for Modern," is "smoking gun" evidence of direct copying by Landoll. Nalle's affidavit and that of Martin Myers, Landoll's president, contest that claim. The case for Landoll is that it had no prior knowledge of the Modern publications; that Nalle mentioned Modern in her letter to Friedman only because Friedman told her on the telephone that he had just prepared naked and sexless Troll illustrations for Modern and Nalle intended only to request comparable Trolls for Landoll; and that Nalle emphasized to Friedman "that the drawings for Landoll had to be different from Modern's, and had to look unique to Landoll." Nalle affidavit at P 12.
These contentions give rise to genuine issues of fact. But they are not material facts, as that phrase is used in Rule 56(c), and accordingly do not preclude summary judgment. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Landoll's proof at trial might negate a theory of direct and deliberate copying by Landoll. But such proof is not essential to Modern's infringement claim under governing law. As noted, proof of access and substantial similarity will suffice. Landoll's retention of Friedman establishes its access to the original Troll illustrations Friedman created for Modern. Access to the creator implies access to his creations. And the Troll depictions in the Landoll publications are virtually identical to those in the Modern publications. Since Friedman drew them all, that is not surprising. In short, Landoll's Troll publications infringe Modern's copyrights.
Landoll argues that "an artist does not sell the right to use his artistic style when he sells his drawings." Reply brief at 3. But an artist who creates an original work entitled to copyright protection may choose between copyrighting it himself or assigning ownership of copyright to another. In the case at bar Friedman chose the latter course. Landoll must accept the legal consequences.
Plaintiff's motion for partial summary judgment on the issue of infringement is granted. Defendant's cross-motion is denied. Counsel for plaintiff are directed to settle an Order of Permanent Injunction consistent with this Opinion on seven (7) days' notice within ten (10) days of the date hereof.
The parties are directed to complete pre-trial discovery on plaintiff's additional claims not later than April 8, 1994, and to attend a status conference in Room 307 at 2:00 p.m. on April 22, 1994.
It is SO ORDERED.
Dated: New York, New York
January 10, 1994
CHARLES S. HAIGHT, JR.
UNITED STATES DISTRICT JUDGE