Gladly comes to her out of the blue.
She’s been working since early this morning, constructing a model for a fire engine with a girl doll at its wheel and several other girl dolls, all with flowing red hair the color of the truck, hanging from its sides. Casting each delicate doll from individual wax models, hanging them on the deliberately macho prototype truck she’s constructed of wire and wood, she finds herself humming as she works, and oddly—
Ideas sometimes come this way, she tells the Court.
— one of the tunes she initially hums and then actually begins singing is a hymn called “Keep Thou My Way,” which she learned when she was a little girl growing up in Winfield, Alabama, and attending a Bible-reading class taught by a woman named Helen Lattimer.
...and she remembers all at once that in all the children’s minds “Gladly the cross I’ll bear” became “Gladly the cross-eyed bear,” in much the same way that “Round yon virgin” in “Silent Night” became a chubby little man whose name was John Virgin, or “Lead on, O king eternal” in yet another hymn became “Lead on, O Kinky Turtle.” And suddenly she thinks Oh, God, a whole line of stuffed toys, starting with the Cross-Eyed Bear and going from there to the Kinky Turtle and Round John and who knows what other characters I might find in the malaprop depths of rural America!
She rolls the fire truck to one side of the table, opens a pad, and begins sketching, starting with the outline of the bear’s head, tilted to one side, and then filling in the crossed eyes and the silly little grin under its black triangular nose—
And here she shows the original drawing to the Court:
“I would like to offer Ms. Commins’s drawing in evidence, Your Honor.”
“Any objections?”
“None.”
Lainie makes some twenty drawings of the bear that night, working feverishly from the moment of inspiration to one in the morning, and she goes to sleep exhausted but content until she wakes up in the middle of the night with her eyes burning, and goes into the bathroom to put some Visine drops into them, and recalls how devastated she’d felt when the ophthalmologist in Birmingham reported that the second operation had not helped her condition, and standing there in the bathroom with the eyedropper in her hand, she thinks I’ll fix Gladly’s eyes! and runs out into the studio again, and puts on her own glasses and begins sketching Gladly wearing eyeglasses.
“I offer the following eighteen drawings in evidence, Your Honor.”
“Objections?”
“None.”
“All right to offer them all as a single piece of evidence, Mr. Hope?”
“If it please the Court.”
“That’s five for the plaintiff,” Santos said.
“As I understand this,” I said, “when the eyeglasses are placed on Gladly’s nose, covering her eyes...”
“Yes.”
“...the eyes look perfectly normal.”
“Yes. Facing her and looking at her eyes through the glasses...”
“Could you show us, please?” I said, and handed her the prototype bear with the eyeglasses hanging on a chain around her neck. While Gladly watched in glassy cross-eyed expectation, smiling goofily, Lainie opened the glasses, perched them on the bear’s snout and little black triangular nose, and hooked them behind her ears. Instantly and magically, the previously crossed eyes appeared normal.
“You put on the glasses,” Lainie said, “and the eyes aren’t crossed anymore.”
“How do you achieve that effect, Ms. Commins?”
“I had an optometrist design the glasses for me.”
“Do you have specifications for these glasses?”
“I do.”
“I refer you to exhibit three, the certificate of copyright registration for your bear, and ask you to look at the deposit copies accompanying it. Are these the specifications to which you just made reference?”
“They are.”
“And did these specifications accompany your application for copyright registration?”
“They were a part of the application, yes.”
“And became a part of the copyright protection, didn’t they?”
“Objection!”
“Sustained.”
“Your Honor, if I may...”
“Yes, Mr. Brackett?”
“Your Honor,” Brackett said, “it is not Ms. Commins’s business to know or to comment upon copyright law.”
“I sustained your objection, didn’t I?”
“Yes, and thank you, Your Honor. But, moreover, Your Honor, eyeglasses in themselves are not copyrightable, they are not subject matter for copyright. Copyright does not protect ideas or systems, it protects only the expression of ideas.”
“Yes, I know that,” Santos said. “I’m quite familiar with the ‘idea/expression’ distinction.”
“I’m sure, “Your Honor. But for counsel to suggest that copyright protection of the bear extends to the bear’s eyeglasses...”
“Your Honor,” I said, “the eyeglasses are part of the bear’s trade dress. As such...”
“All of which is a matter of law for the Court to decide. Meanwhile, let’s hear the rest of the testimony.”
“Thank you, Your Honor,” Brackett said.
“Ms. Commins,” I said, “do you own these specifications?”
“I paid for their design, yes, in return for all rights to the drawings and the unrestricted use of the design.”
“Has anyone else, to your knowledge, ever used such a design in this manner before?”
“Not to my knowledge.”
“To your knowledge, has anyone ever used such a design in the form of eyeglasses for a stuffed teddy bear?”
“Not to my knowledge.”
“Eyeglasses which, when covering the bear’s crossed eyes, seem to correct the abnormality? Anyone ever use this design in this fashion before?”
“Not to my knowledge.”
“Is this use original with you?”
“It is.”
“Did you conceive of this use independently?”
“I did.”
“Which goes to the heart of copyright law,” I said. “An original manner of expression, independently cre—”
“Which goes to the heart of a lawyer addressing the Court directly,” Brackett said, “rather than...”
“Sustained,” Santos said. “Careful, Mr. Hope.”
There was the fetid smell of mildew and rot, what you found in a lot of these condos built back in the forties and fifties. Place was constructed of cinder block painted white, streaks of greenish gray all over it where the mildew had been having its way for too long a time. Wooden posts rotted clear through, probably infested with termites, too, supporting a rippled green plastic overhang running past the entrance doors to the units, twelve on each floor by Warren’s count. He came down the long open corridor cautiously because the one thing he couldn’t change was his color.