Zimnicki v. General Foam Plastics Corp.

Filing 273

MEMORANDUM Opinion Signed by the Honorable John F. Grady on 11/22/2011. Mailed notice(cdh, )

09-2132.111-RSK

November 22, 2011

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SANDARA K. ZIMNICKI,
Plaintiff,
v.
GENERAL FOAM PLASTICS CORP.,
Defendant.

)
)
)
)
)
)
)
)
)

No. 09 C 2132

MEMORANDUM OPINION
Before

the

court

is

defendant

General

Foam

Plastics

Corporation’s (“General Foam”) motion for summary judgment of noninfringement.

For the reasons explained below we grant General

Foam’s motion in part and deny it in part.
BACKGROUND
The parties have filed lengthy Local Rule 56.1 statements, and
virtually all of the 95 separately numbered statements are disputed
in whole or in part.

Without wading too far into these disputes,

many of which are irrelevant to the present motion, the basic facts
are these.1

In 2005 Sandra Zimnicki registered copyrights for

three drawings depicting deer in three different poses: “Graceful
Deer Standing,” “Graceful Deer Lying Down,” and “Graceful Deer
1/
Zimnicki requests
56(d)
in the event that
contentions. (See Decl. of
relied on those contentions,
to the motion.

additional discovery pursuant to Fed. R. Civ. P.
we rely on certain of General Foam’s factual
Barry Irwin, dated May 13, 2011, ¶ 2.)
We have not
therefore no further discovery is needed to respond

- 2 -

Leaping.”

(Pl.’s

Stmt.

of

Add’l

Facts

¶¶

73-75;

see

also

Certificates of Registration, attached as Exs. A, C, and D to Pl.’s
Second Am. Compl.)

The registrations describe these works as

“[t]echnical drawings to create Christmas decorations.”
Certificates of Registration.))
2006

General

Foam

sold

(See

Zimnicki claims that beginning in

“lighted

grapevine

deer

products”

—

Christmas lawn-decorations — that infringed Zimnicki’s copyrighted
works.

(Def.’s

Stmt.”).)

L.R.

56.1

Stmt.

¶

16

(hereinafter,

“Def.’s

She has identified eight allegedly infringing “sku’s:”

(1) product numbers E20-320434 (2006), X20-300622B (2007), and X20300004 (2008), allegedly infringing Graceful Deer Standing; (2)
product numbers E20-320430 (2006), X20-300623B (2007), X20-300005
(2008), allegedly infringing Graceful Deer Lying Down; and (3)
product numbers E20-320433 (2006) and X20-300621B (2007), allegedly
infringing
Products”).

Graceful

Deer

Leaping

(collectively,

the

(Id.; see also Zimnicki Aff. at Exs. F-M.)

“Accused
In the

present motion, General Foam argues that a visual comparison of the
Accused Products and Zimnicki’s drawings demonstrates that its
products do not infringe Zimnicki’s copyrights.
DISCUSSION
A.

Standard of Review
“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

- 3 -

P. 56(a).

In considering such a motion, the court construes the

evidence and all inferences that reasonably can be drawn therefrom
in the light most favorable to the nonmoving party.

See Pitasi v.

Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999).

“The court

need consider only the cited materials, but it may consider other
materials in the record.”

Fed. R. Civ. P. 56(c)(3).

judgment should be denied if the dispute is ‘genuine’:

“Summary
‘if the

evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’”

Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d

1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court will enter summary

judgment against a party who does not “come forward with evidence
that would reasonably permit the finder of fact to find in [its]
favor on a material question.”

McGrath v. Gillis, 44 F.3d 567, 569

(7th Cir. 1995).
B.

Copying
“To establish copyright infringement, one must prove two

elements: ‘(1) ownership of a valid copyright, and (2) copying of
the constituent elements of the work that are original.’”

JCW

Investments, Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th Cir.
2007) (quoting Feist Publications, Inc. v. Rural Telephone Serv.
Co., Inc.,

499

U.S.

340,

361

(1991)).

Zimnicki’s

copyright

certificates are prima facie evidence that her copyrights are
valid.

See id. at 914-15.

Although General Foam does not concede

- 4 -

that Zimnicki’s copyrights are valid, (see Def.’s Mem. at 2 n.2),
it

has

not

challenged

their

validity in

its

current

motion.

Turning to the second element, “copying” is used in two senses in
copyright

law.

See

Runstadler

Studios,

Inc.

v.

MCM

Ltd.

Partnership, 768 F.Supp. 1292, 1296 (N.D. Ill. 1991) (“We have
placed ‘copy’ in quotes because it is used in two senses.”).
“First, there is the factual question whether the defendant, in
creating its work, used the plaintiff’s material as a model,
template, or even inspiration.”
Nimmer,

Nimmer

“Nimmer”).
work

is

liability

on

Copyright

§

4 Melville B. Nimmer & David
13.01[B]

(2011)

(hereinafter,

The second, legal question is whether the “defendant’s

substantially
may

attach.”

similar
Id.

to

plaintiff’s

The

concept

work
of

such

that

“substantial

similarity” is relevant to “copying” in both senses.

Besides

direct proof of actual copying, which is often difficult to come
by, a plaintiff can establish copying in the first sense by showing
that the defendant had access to the plaintiff’s work and that the
parties’ works are substantially similar. See JCW Investments, 482
F.3d at 915.

And as we will discuss in more detail later,

“substantial similarity” is also the standard courts apply to
“copying”

in the

legal sense;

i.e.,

is

the

defendant’s

work

substantially similar to the original elements of the plaintiff’s
work?

See Stillman v. Leo Burnett Co., Inc., 720 F.Supp. 1353,

- 5 -

1358 (N.D. Ill. 1989) (describing the “dual usages” of the phrase
“substantial similarity”).
Zimnicki devotes a significant portion of her response to
General Foam’s motion developing her theory that the Accused
Products are direct or indirect copies of products manufactured by
Neo-Neon, a company with whom Zimnicki collaborated to design
Christmas decorations in 2004.

(See Pl.’s Resp. at 1-2, 10-13;

Zimnicki Aff. ¶¶ 8-9, 11, 14.)

Zimnicki contends that she and

Neo-Neon parted ways sometime in 2004 or 2005, after which she
learned that Neo-Neon was selling lighted deer products to Menards
without her permission that were explicitly modeled on her designs.
(Zimnicki Aff. ¶ 13.)

After Zimnicki accused Neo-Neon and Menards

of infringing her copyrights, Menards began purchasing the Accused
Products from General Foam.

(Pl.’s Resp. to Def.’s Stmt. ¶ 6.)

General Foam obtained the products from Neo-Neon in 2006.
Stmt. ¶ 24.)

(Def.’s

And then in 2007 and 2008 it commissioned Nixan

International Ltd. and its affiliates to manufacture the products.2
(Pl.’s Resp. to Def.’s Stmt. ¶ 6.)
products

General

Foam

sold

in

Zimnicki contends that the
2006,

2007,

and

2008

are

substantially similar to the products Neo-Neon sold to Menards in
2005.

(Id.)

She further contends that General Foam made minor

modifications to the products in a deliberate attempt to avoid an

2/
Nixan and its affiliates (Keen Ltd. and GP Ltd.) were defendants in
this case, but have since settled with Zimnicki.

- 6 -

infringement lawsuit, contrary to its representation that it only
learned about Zimnicki and her copyrights in 2009. (Id. at ¶ 28.)
General Foam argues that Zimnicki’s actual-copying theory is
irrelevant to the current motion.

We agree.

Whether or not

General Foam used Zimnicki’s designs (or products based on those
designs) as a model for its products, it is not liable for
infringement if it did not copy the “elements of the work that are
original.” JCW Investments, 482 F.3d at 914 (citation and internal
quotation marks omitted); see also Incredible Technologies, Inc. v.
Virtual Technologies, Inc., 400 F.3d 1007, 1011 (7th Cir. 2005)
(finding no infringement even though it was “pretty clear” that the
defendant set out to copy the plaintiff’s product).

The often-

cited case Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d
738 (9th Cir. 1971) illustrates the point.

The plaintiff in

Kalpakian accused the defendants of “infringing [its] copyright
registration of a pin in the shape of a bee formed of gold
encrusted

with

circumstantial
countervailing

jewels.”

Id.

at

evidence

of

actual

evidence that

the

739.

The

plaintiff

copying,

and

defendants

had

cited

despite

independently

created their product, the court considered it “unrealistic to
suppose

that

defendants

could

have

closed

their

minds

to

plaintiff’s highly successful jeweled bee pin as they designed
their own.”

Id. at 741.

Nevertheless, the court found no

infringement because the defendants had not copied any element of

- 7 -

the plaintiff’s product that was not inherent in the idea of a
jewel-encrusted bee pin.
Goldberger

Doll

Mfg.

Co.,

Id. at 741; see also Mattel, Inc. v.
365

F.3d

133,

136

(2d

Cir.

2004)

(“Mattel’s copyright in a doll visage with an upturned nose, bow
lips, and widely spaced eyes will not prevent a competitor from
making dolls with upturned noses, bow lips, and widely spaced eyes,
even if the competitor has taken the idea from Mattel’s example, so
long as the competitor has not copied Mattel’s particularized
expression.”) (emphasis added).

General Foam makes a similar

argument here: Zimnicki’s drawings and the Accused Products share
certain generic or stock characteristics, but its products do not
copy Zimnicki’s particular expression of those characteristics.
C.

Substantial Similarity
Substantial similarity is judged from the perspective of an

“ordinary observer.”

Atari, Inc. v. N. Amer. Phillips Consumer

Elec. Corp., 672 F.2d 607, 614 (7th Cir. 1982), superseded by
statute on other grounds as recognized in Scandia Down Corp. v.
Euroquilt, Inc., 772 F.2d 1423 (7th Cir. 1985). “Specifically, the
test is whether the accused work is so similar to the plaintiff’s
work that an ordinary reasonable person would conclude that the
defendant

unlawfully

appropriated

the

plaintiff’s

protectible

expression by taking material of substance and value.”

Id.

“It

has been said that this test does not involve analytic dissection
and expert testimony, but depends on whether the accused work has

- 8 -

captured the total concept and feel of the copyrighted work.”

Id.

(citations and internal quotation marks omitted); see also JCW
Investments, 482 F.3d at 916 (“We look to the dolls themselves to
determine substantial similarity . . . .”).3
important

to

distinguish

between

Nevertheless, it is

similarities

of

protected

expression and similarities that flow from a common idea.
Atari, 672 F.2d at 614-15.

See

Copyright protection extends “to the

expression of the idea — not the idea itself.”

Id. (quoting Mazer

v. Stein, 347 U.S. 201, 217 (1954)) (internal quotation marks
omitted).
reflect

The related doctrines of merger and scenes a faire

this

distinction.

“[W]here

idea

and

expression

are

indistinguishable” — i.e., where they “merge” — “the copyright will
protect against only identical copying.”

Id. at 616; see also

Kalpakian, 446 F.2d at 742. Similarly, the scenes a faire doctrine
provides that liability cannot be premised on similarities in the
“standard” or “stock” elements of a particular type of work.

See

Atari, 672 F.2d at 616; see also Bucklew v. Hawkins, Ash, Baptie &
Co., LLP., 329 F.3d 923, 929 (7th Cir. 2003); Nimmer, supra, §
13.03[B][4].

3/

Zimnicki dismisses General Foam’s comparison of the parties’ products
as “attorney argument,” touting instead Zimnicki’s “expert” testimony. (Pl.’s
Resp. at 21-22.) Expert testimony is not required to visually compare Christmas
decorations. Cf. Swirsky v. Carey, 376 F.3d 841, 849 (9th Cir. 2004) (case cited
by Zimnicki identifying some of the distinct elements of a musical composition
that might support a finding of infringement: “timbre, tone, spatial
organization, consonance, dissonance, accents, note choice, combinations,
interplay of instruments, basslines, and new technological sounds . . . .”).

- 9 -

Both parties argue as though these doctrines are all-ornothing propositions: either the doctrines apply, and Zimnicki is
entitled to negligible protection (limited to “exact copying”); or
they do not, and Zimnicki is entitled to “full” protection.

It is

more accurate to describe copyright protection as a sliding scale.
“As a work embodies more in the way of particularized expression,
it moves farther away from the bee pin in Kalpakian, and receives
broader copyright protection.

At the opposite end of the spectrum

lie the ‘strongest’ works in which fairly complex or fanciful
artistic expressions predominate over relatively simplistic themes
and which are almost entirely products of the author’s creativity
rather than concomitants of those themes.” Atari, 672 F.2d at 617.
Both Zimnicki’s drawings and the Accused Products depict deer with
more or less lifelike proportions (with important differences that
we will discuss later).

There are pictures of dozens of such works

in the parties’ summary judgment materials — all of which will be
familiar to anyone who has ever seen a Christmas-light display —
and they all look more similar than different.

Some features are

simply inherent in the idea of the product: four legs that are
narrow in proportion to the body, antlers, oval-shaped ears, and a
small tail.

Likewise, the same basic poses recur: facing forward

(see, e.g., ZIM020597), stooping to eat or drink (see, e.g., id.),
leaping (see, e.g., ZIM020604), and lying or sitting down (see,

- 10 -

e.g., ZIM020606 and ZIM020610).4

To base a finding of infringement

on any one of these stock features or poses would effectively grant
the copyright holder a monopoly on the idea.

It would be a stretch

to say that there is only “one way” to express the common features
of deer in this medium.

See Assessment Technologies of WI, LLC v.

WIREdata, Inc., 350 F.3d 640, 643 (7th Cir. 2003) (“[I]f there is
only one way in which to express an idea-for example, alphabetical
order for the names in a phone book-then form and idea merge, and
in that case since an idea cannot be copyrighted the copying of the
form

is

not

an

infringement.”);

but

see

Nimmer,

supra,

§

13.03[B][3] (suggesting that “one way” formulation of the merger
doctrine should not be taken literally).

But the choices are

certainly limited, and we will bear that in mind as we compare the
Accused Products with Zimnicki’s copyrights.
important

to note,

“substantial
analysis.

in

light

similarity”

of the

parties’

necessarily

(Cf. Zimnicki Resp. at 7-9.)

We think it is also
arguments,

requires

that

case-by-case

The authorities that the

parties cite elucidate general copyright principles; they do not
tell

us

whether

or

substantially similar.
(1)

not

the

particular

works

before

us

are

We turn to that question now.

Graceful Deer Standing

Graceful Deer Standing is a two-dimensional drawing depicting
the outline of a deer standing up, with some minor details around

4/

The just-cited examples appear in Exhibit D to Zimnicki’s affidavit,
which includes a compilation of product catalogs pre-dating Zimnicki’s works.

- 11 -

the deer’s muzzle and jaw.

Zimnicki’s drawing does not depict a

deer exactly as it would appear in nature. The antlers are thinner
and more uniform than actual deer antlers, and the legs and neck
are elongated.
are

narrow

The tail is erect and banana-shaped, and the ears

ovals.

The

overall

impression

is

more

delicate

(Zimnicki uses the terms “elegant” and “graceful”) than an actual
deer.

But as we suggested before, Zimnicki’s drawing does not

stray too far from nature. The drawings are not cartoonish, unlike
(for example) the exaggerated features of the deer depicted in
Zimnicki’s affidavit at paragraph 70.

Or to use two more famous

examples that the defendants cite in their brief: Bambi and Rudolph
the Red Nosed Reindeer.5

Those characters have distinctively large

eyes and round heads. By comparison, the proportions of Zimnicki’s
deer are more lifelike.
Perhaps the most obvious difference between General Foam’s
standing deer (in all three iterations: 2006, 2007, and 2008) and
Graceful Deer Standing is the former’s “grapevine” frame. Zimnicki
argues that this is not a true difference because her copyright
“teach[es] the use of grapevine finishes.”
We disagree.
renderings

of

(Pl.’s Resp. at 24.)

Zimnicki attached to her copyright registration 10
essentially

the

“finishes” and/or embellishments.

same

drawing

with

suggested

Some drawings depict (at least

partially) the suggested features: for example, the holly draped

5/

We take judicial notice of the appearance of these famous animated
characters. (Cf. Pl.’s Resp. at 6.)

- 12 -

over the deer’s back in one of the drawings.

Others simply

describe them: the “white wire frame” deer and the “ropelight” deer
are exactly the same picture with a different caption.

One of

these captions refers to a “twig” or “grape ivy” finish and
includes a rendering of a small section of the twigs. The captions
are ideas about how Graceful Deer Standing could be rendered in
three-dimensions, not expressions of those ideas.6

We conclude

that General Foam’s grapevine frame is a relevant difference in
expression.
insignificant.

In

a

given

case,

such

differences

may

be

For example, in Wildlife Express Corp. v. Carol

Wright Sales, Inc., 18 F.3d 502, 511 (7th Cir. 1994) our Court of
Appeals disregarded “trivial” differences in the “color and type of
plush fur” used by the parties in their otherwise “remarkabl[y]”
similar “animal-styled children’s duffle bags.”

We do not regard

the differences between Zimnicki’s silhouetted deer and General
Foam’s wire-frame deer as trivial.

The vine pattern contributes

significantly to the product’s overall look and feel.
time, we do not want to overstate the difference.

At the same
A three-

dimensional, wire-frame standing deer that copied the original
elements of Zimnicki’s drawings would infringe her copyright.7

But

General Foam’s standing deer differ from Zimnicki’s in other
significant respects, too.
6/

The fact that Zimnicki lapses into patent jargon when referring to the
suggested “twig” finish is telling.
(See Pl.’s Mem. at 24 (“Ms. Zimnicki's
copyright[s] do teach the use of grapevine finishes.”).)
7/

The standing deer that Neo-Neon manufactured in 2005, depicted at
paragraph 14 of Zimnicki's affidavit, comes close to the mark.

- 13 -

As General Foam points out, the neck and legs of its standing
deer appear significantly shorter than Graceful Deer Standing. The
back thighs of Zimnicki’s deer have a tapered appearance — wide at
the top, narrowing down the leg.

By contrast, the back legs of

General Foam’s deer proceed almost in a straight line from the
torso down to the ground.

The head is simpler — unlike Zimnicki’s

drawing, there is no suggestion of a jawline — and the muzzle is
shorter.

The antlers of General Foam’s deer appear to be shorter

in relation to the deer’s body, although the branching pattern is
very similar.

(An apt example of a trivial difference an ordinary

observer would overlook is the “nub” or “branch” on the innermost
antler of Graceful Deer Standing, which General Foam’s products do
not have.

See Roulo v. Russ Berrie & Co., Inc., 886 F.2d 931, 939

(7th Cir. 1989) (“[T]he substantial similarity inquiry is conducted
from the perspective of the ‘ordinary observer’ who ‘unless he set
out to detect the disparities, would be disposed to overlook them,
and regard their aesthetic appeal as the same.’”) (quoting Peter
Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d
Cir. 1960)).)

The ears are also similar, although we think the

range of possible expression here is narrow: there are a limited
number of ways to depict the outline of a deer’s ears.

The tail of

General Foam’s deer is erect, but a different shape: rounder at the
top and narrow near the body.
Zimnicki argues that all of these differences are “slight,”
and should be disregarded.

But she cannot have it both ways: she

- 14 -

cannot claim copyright protection in an elongated and “graceful”
deer and then disregard differences in the features that make her
work original. See Atari, 672 F.2d at 614-15. Notwithstanding the
similarity in the antlers, the different proportions General Foam’s
deer create a very different overall look and feel: General Foam’s
standing deer are short and stocky, not elongated and graceful. We
conclude that no reasonable jury could find that General Foam’s
deer are substantially similar to the original expression in
Zimnicki’s Graceful Deer Standing.
(2)

Graceful Deer Lying Down

Graceful

Deer

Lying

Down

is

a

two-dimensional

drawing

resembling Graceful Deer Standing, but in a different pose.

The

deer’s legs are folded underneath its torso, and its head is turned
at an angle back towards its tail.

The deer’s back right leg is

tucked underneath the deer’s body, so that it cannot be seen in any
of the three renderings (“backside,” “front,” and “side” views).
The head, ears, and antlers of Graceful Deer Lying Down are
substantially the same as Graceful Deer Standing.
similar, but somewhat less “banana-like.”

The tail is

The neck is elongated,

but the overall impression of Graceful Deer Lying Down depends more
on the particular pose, and the pattern and height of the antlers,
than on

its

“graceful” proportions.

General

Foam’s

deer

is

depicted in substantially the same pose as Graceful Deer Standing:
the deer is looking in the same direction and the legs are folded
in a similar position, down to the angle of the deer’s left rear

- 15 -

hoof.

And at least in the photographs that the parties have

provided, the deer’s back-right leg is not visible.8

The antlers

are substantially similar, not only in the branching pattern —
which was also true of General Foam’s standing-deer products — but
in their height relative to the deer’s body.

The proportions of

the torso and the neck are similar, although the neck and torso of
General Foam’s deer are perhaps a little shorter.

However, the

different proportions of the two deer are not as striking as the
differences between Graceful Deer Standing (tall, delicate) and
General Foam’s standing-deer products (short, squat).

The 2006

model’s ears are similar in size to Graceful Deer Lying Down,
whereas the 2007 and 2008 models’ ears are smaller.

The tail is

depicted at a slightly different angle, but is similar in shape.
The 2007 and 2008 models of General Foam’s deer have bows around
their necks, Graceful Deer Lying Down does not.

These are all

minor differences — they do not contribute to the products’ overall
look and feel.

See, e.g., Concrete Machinery Co., Inc. v. Classic

Lawn Ornaments, Inc., 843 F.2d 600, 611 (1st Cir. 1988) (“To avoid
a finding of likelihood of success on the merits for Concrete,
Classic will have to identify more significant differences than
slight variations in size or a different positioning of a statue’s
head.”).

8/

Again, the “grapevine” finish of General Foam’s products

It is difficult to tell from the photographs, but it appears that
General Foam’s deer (the 2007 and 2008 models, at least) do not have a rear right
leg. If one were attempting to render Zimnicki’s drawing in three dimensions,
that is one way to go about it.

- 16 -

is an important difference between the two works, but we do not
believe that it is dispositive.

(See infra n.6.)

In sum, we

conclude that the parties’ works are not so dissimilar that we can
take the question away from a jury at this time.

(3)

Graceful Deer Leaping

Zimnicki’s Graceful Deer Leaping is a two-dimensional drawing
depicting a deer leaping through the air.

The deer is depicted

with a dense, wicker-like finish and is held in the air by means of
a stick attached to a belt wrapped around the deer’s torso.

There

are sleigh bells attached to the belt, and a wreath is depicted
around the deer’s neck.

The deer’s body is slender, and tapers to

a very narrow and distinctive “waist” near the deer’s back legs.
The long front and back legs are positioned in such a way that all
four legs are visible in profile.

The front legs are bent

underneath the torso, and the deer’s long back legs trail behind
its body in the air.

The drawing appears to depict a single

antler, with several curvilinear branches, rising out of the deer’s
head at a single point.9

However, we gather from Zimnicki’s

description of the drawing in her summary judgment materials that
she intended to depict antlers with two main “branches” in a
“single plane.” A note on the drawing indicates that they are

9/

A three-dimensional deer with this single-antler configuration appears
at Exhibit D to Zimnicki’s affidavit at Bates page ZIM020699.

- 17 -

“positionable aluminum antlers.”

The tail is erect and crescent-

shaped, the ears are oval-shaped.

(a)

General Foam’s Leaping Deer Products: 2006 Model10

The “grapevine” pattern of General Foam’s deer is strikingly
different than Graceful Deer Leaping.

Instead of a complex web of

intertwining branches, the individual “vines” that form the frame
of General Foam’s product are linear and follow the shape of the
deer’s body.

Consequently, there is a significant amount of empty

space between the vines, whereas the pattern depicted in Zimnicki’s
drawing appears opaque.

The two deer are depicted in somewhat

similar poses, although the similarity is not as striking as
between the parties’ “deer-lying-down” works.

In this instance,

they are no more similar than the idea of a leaping deer would
dictate.

See Satava v. Lowry, 323 F.3d 805, 813 (9th Cir. 2003)

(“Satava may

not

prevent others

from

copying

aspects

of

his

sculptures resulting from either jellyfish physiology or from their
depiction in the glass-in-glass medium.”).

Zimnicki has cherry-

picked an image of a deer somewhat clumsily leaping over a wire
fence and argues that her deer is different.
Pl.’s Stmt.)

(See Group Ex. E to

But even that picture shares elements in common with

10/
As with General Foam's other products, the two models of General Foam’s
leaping deer (2006 and 2007) are largely similar. But in this case, we think the
differences are such we should discuss them separately.

- 18 -

the parties’ works: front legs folded under the body, back legs
trailing. As we mentioned earlier, this pose is reproduced several
times in pre-2004 advertisements attached to parties’ summary
judgment materials.11

Given the nature of the subject matter, and

the limited range of expression that is possible, we do not think
that the works’ somewhat similar poses preclude summary judgment.
The 2006 model’s body is a simple oval shape, without the
tapering appearance that makes Zimnicki’s deer distinctive.

The

neck and body are shorter, and the legs appear both shorter and
thicker.

The deer’s tails are erect and roughly similar in shape.

The antlers of General Foam’s deer are not aluminum, nor (as far as
we can tell) are they positionable.

The branching pattern is

similar to Graceful Deer Leaping: the antlers have the same number
of branches in more or less the same position (with one minor
difference).

But the overall impression is different.

In this

case, some of the difference may be attributable to the differences
between two- and three-dimensional works. For example, the tangled
appearance of the antlers of General Foam’s deer when viewed in
profile.

But the 2006 model’s antlers do not share the stylized,

flowing appearance of Graceful Deer Leaping’s antlers.

It is

possible to create a similar effect in three dimensions, (see supra
n.8), but General Foam has not copied that element of Zimnicki’s
work.

11/

The deer’s head is shorter and less detailed than Graceful

(See Ex. D to Pl.’s Stmt. at ZIM020604, ZIM020606,
ZIM020614, ZIM020629, ZIM020653, ZIM020655, ZIM020703, ZIM020706.)

ZIM020611,

- 19 -

Deer Leaping, which has a clear brow, and its ears are smaller.
Viewing the products as a whole, we conclude that no reasonable
jury could find that General Foam’s products copy the original
expression in Zimnicki’s Graceful Deer Leaping.
(b)

General Foam’s Leaping Deer Products: 2007 Model

The 2007 model is more similar to Graceful Deer Leaping in
some of its details. Its body narrows slightly near its back legs,
which appear more similarly proportioned to Graceful Deer Leaping’s
legs.

Like

Zimnicki’s

drawing,

the

2007

model’s

positioned so that they can all be seen in profile.

legs

are

Moreover, the

individual branches of the deer’s antlers are distinguishable in
profile and appear to flow backwards from top of the deer’s head.
But the overall look and feel of the two works is still very
different.

As we discussed with respect to the 2006 model, the

wicker-like finish depicted in Zimnicki’s drawing gives her work a
dramatically different appearance. Moreover, Graceful Deer Leaping
appears to be moving horizontally through the air in a way that
suggests natural, effortless movement.

The 2007 model is rigidly

angled towards the sky, giving it a clumsy appearance.

Its neck is

shorter, its head is less detailed, and its ears are significantly
smaller.

In short, it is not “graceful,” a term that accurately

summarizes the elements of Zimnicki’s work that distinguish it from
the idea of a silhouetted or wire-form leaping deer.
that

General

Foam

is

entitled

to

summary

infringement as to the 2007 model, as well.

We conclude

judgment

of

non-

- 20 -

CONCLUSION
General Foam’s motion for summary judgment of non-infringement
(204) is granted in part and denied in part.

We conclude that

product numbers E20320434, MNX20-300622B, MNX20-300004, E20320433,
and MNX20-300621B do not infringe Zimnicki’s copyrights.
similarities
(E20320430,

between

General

MNX20-300623B,

Foam’s

and

lying-down

MNX20-300005)

deer
and

The

products

Zimnicki’s

Graceful Deer Lying Down are substantial enough to preclude summary
judgment based only on a visual comparison of the products.
status hearing is set for November 30, 2011 at 10:30 a.m.

DATE:

November 22, 2011

ENTER:

___________________________________________
John F. Grady, United States District Judge

A