“Yes or no, please.”
“Given the widest possible interpretation...”
“Your Honor?”
“Yes or no, Dr. Nettleton.”
“All right, yes.”
“Would you please turn to page twenty-five?”
Nettleton turned several pages, and again looked up.
“Do you see the drawings on that page?”
“I do.”
“Would you describe those drawings as specifications for lenses designed to correct the condition of strabismus?”
Nettleton studied the drawings.
“Yes, I would.”
“Would you say they’re identical to the drawings you made for Miss Commins?”
“Absolutely not.”
“Would you say they’re remarkably similar?”
“No, not at all. These are lenses designed to correct strabismus. My mirrors were designed to create an optical illusion.”
“These specifications were published in an industry journal in March of 1987. Would you agree that you had a reasonable opportunity to have seen them?”
“Yes, but I didn’t see them. And even if I had...”
“By comparison, would you say that your design adds more than a trivial amount of creativity to the design in this magazine?”
“I would say they’re entirely different.”
“Oh? In what way?”
“To begin with, the design in the magazine is for eyeglasses.”
“Well, isn’t your design for eyeglasses?”
Nettleton rolled his eyes.
“Your Honor,” Brackett said.
“Your Honor,” I said.
“Answer the question, please.”
“My design is for reflecting mirrors,” Nettleton said wearily.
“Well, those are eyeglasses hanging around the bear’s neck, aren’t they?”
“No. They couldn’t possibly serve as a tool for correcting or improving vision.”
“They look like glasses to me.”
“Your Honor, please,” I said.
“Sustained.”
“Would you agree that they look like eyeglasses?”
“Yes, but they’re not eyeglasses. That is not their purpose.”
“But the basic design is similar to the one in the magazine, isn’t it?”
“No, the designs are not at all similar.”
“You know, of course, that Miss Commins submitted your specifications together with her application for copyright?”
He’s trying to invalidate the copyright, I thought.
“Yes, I know that.”
“How did you come by this information?”
“She told me.”
“Did you tell her that the eyeglasses for which she was seeking copyright as part of her design were not entirely original with you?”
“They were original!”
“Did you tell her that a design for similar eyeglasses had been published in 1987?”
“I didn’t know that. And besides, they’re not similar.”
“But a few minutes ago you described those published drawings as specifications for the use of corrective lenses in the treatment of strabismus, didn’t you?”
“You asked me to read the title of the article...”
“But you agreed, didn’t you, that the glasses were designed to do exactly that?”
“Yes, I did.”
“And you also agreed that your glasses were also designed to...”
“In the loosest possible sense, is what I...”
“In whatever sense, you agreed...”
“Objection, Your Honor.”
“Sustained. Get off it, Mr. Brackett.”
“Tell me, Dr. Nettleton, you said earlier that Miss Commins came to you in April to show you her original drawings for a bear she’d designed.”
“Yes.”
“How do you know they were original?”
First the eyeglasses, I thought, now the bear itself.
“Well, they were signed by her,” Nettleton said.
“Yes, but how do you know they weren’t drawings premised on some other person’s idea?”
“Objection, Your Honor!”
“I’ll allow it, Mr. Hope. He earlier described the drawings as original. Answer the question, please.”
“Well, I didn’t know where her idea came from,” Nettleton said. “She told me it was her idea, I had to assume...”
“The same way you told her...”
“Objection!”
“...that the eyeglasses were your idea, when in fact...”
“Objection, “Your Honor!”
“When in fact the design for them...”
“Objection!”
“...had already been published as far back as...”
“Your Honor, I object!”
“Sustained,” Santos said.
“Your witness.”
The windows, three of them, were on the far side of the building, facing east, away from the parking lot. There was a view of a strip mall across the way, mini-market in it, video shop, Laundromat, dry cleaners, and bar. Two blond bronzed gods looking like beach bums in tank top shirts and baggy shorts were standing outside the bar, maybe waiting for it to open. A woman in a bathing suit and sandals walked into the Laundromat carrying a bundle of wash. It was still sunny and glaring bright outside.
Warren looked at his watch.
All right, let’s get to work here, he thought.
He took the cushions off the sofa, opened the bed — so simple a child of five could do it — hoping to find it neatly made, finding instead a tangled mare’s nest of sheets, pillow and a single blanket. The bed gave off a faint whiff of sweat and something else, he didn’t know what. He pulled back the sheets, looking for whatever might tell him he was right or wrong about what she was doing here in this apartment, but there was nothing he could see, so he closed the bed, and put the cushions back in place and turned to look around the room again.
Bright sunlight streamed through the windows behind him.
The air conditioner was off, the place was pitilessly hot. A pink baby-doll nightgown trimmed with lace at the hem was lying on the floor near the sofa, well, now he knew what she slept in. He picked it up, held it in his big brown hands, studying it. Put it down on the sofa, thought No, she’ll remember, and tossed it on the floor again, where he’d found it. Searched the floor, saw nothing that told him anything. Checked the cabinet on the right-hand wall as you came in the room, opening doors and drawers, found nothing. Checked a standing combination bookcase/bar/entertainment center — actually a series of black wooden shelves resting on a black iron frame — CD and tape player on one of the shelves, but no TV set, another bad sign, he kept hoping against hope he was wrong. Another round table, wooden, larger than the one in the kitchen, with two chairs that matched those in the kitchen, was tucked into the corner just to the left of the entrance door as you came in. A phone was on the table, its cord leading to a jack near the floor. An open address book was resting beside the phone. He pulled out a chair and sat.
What it all got down to in the closing arguments was a simple case of She Said/He Said.
On Lainie’s behalf, I argued that Gladly the Cross-Eyed Bear was her wholly original work, that she had designed the stuffed animal early in April, had consulted an optometrist shortly thereafter, and had copyrighted bear and accessories in May, at which time she had also trademarked the name of the bear. I argued that the crossed eyes and the correcting eyeglasses were part and parcel of the bear’s distinctive trade dress. I further argued that the notion for the bear had come to her through memories of her own affliction — and here I asked her to look directly into Judge Santos’s face so that he could see for himself the similarity of the bear’s eyes to hers — and a hymn she had learned when she was a little girl in Winfield, Alabama.