GOODWIN, Circuit Judge.
Kamar, Inc. appeals from a judgment of the district court finding Kamar's purported copyrights of stuffed toy animals invalid and not infringed and finding no unfair competition or Lanham Act violation.
Both Kamar, Inc. and Russ Berrie, Co. sell stuffed toy animals. Kamar's toys are copyrighted as "soft sculptures" and are manufactured by Korean subcontractors. The subcontractors take Kamar's designs and make stuffed animals from them, affixing Kamar's copyright notice and distinctive logo to each completed toy.
Berrie's stuffed animals are also copyrighted, but Berrie purchases them directly from Korean manufacturers. Three of Berrie's Korean manufacturers, (Young Il Inc., Suck Kyung, and Won Jeung), were previously employed by Kamar to manufacture Kamar's stuffed animals.
I. The Validity of the Copyright.
A. "The Copyrightability of Stuffed Animals"
This court has said that the prerequisites for copyright registration are minimal:
Berrie contends that because stuffed toy animals are widely available to manufacturers like himself, and that because Kamar's concepts of toy animals were taken from the public domain, Kamar's stuffed animals are not copyrightable. The district judge agreed and adopted Berrie's proposed findings to that effect.
In order to support its finding that the animals were not copyrightable, the court would have had to find that Kamar's stuffed animals lack originality. See id. Nowhere, however, is the word originality used by either Berrie or the trial court. There are no factual findings denying that Kamar's toys are original. The question does not appear to have been addressed by the district court. This omission seems unusual in view of the truism that originality is the sine qua non of copyrightability. All we have are two factual findings by the court; one of which says that (presumably all) stuffed animals are in the public domain. The other says that Kamar's toys were taken from the public domain.
Such findings do not establish lack of originality:
See L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 (2d Cir.) (en banc), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976) (the use of matters in the public domain does not preclude a finding of originality). Therefore, without a valid finding of lack of originality, the trial court could not conclude that Kamar's "soft sculptures" were not copyrightable because Kamar's concept of toy animals was taken from the public domain.
B. "The Copyrightability of Realistic Depictions of Animals"
Berrie makes the novel contention that realistic depictions of live animals are not copyrightable. The district court agreed and instructed Berrie to prepare findings to that effect. These findings are actually conclusions of law, and they are erroneous.
We find no authority for Berrie's proposition. Anyone can copyright anything, if he adds something original to its expression. 1 Nimmer on Copyright, Chpt. 2 (1981). The cases cited by Berrie and the court below to the contrary, are not in point. Indeed, the very contention urged has been expressly rejected. "The mere fact that ... [a stuffed toy chimp is] based on a live model does not deprive [him] ... of the necessary amount of originality." Rushton v. Vitale, 218 F.2d 434, 436 (2d Cir. 1955); see also, Dollcraft Industries, Ltd. v. Well-Made Toy Mfg., 479 F.Supp. 1105 (E.D.N.Y.1978) (stuffed toy lambs and bunnies); R. Dakin & Co. v. A & L Novelty Co., Inc., supra (stuffed toy fish, frogs, and monkeys). Kamar's copyright cannot be invalidated on this ground.
C. Improper Notice
Neither can the copyright be invalidated for lack of proper notice. Berrie
Kamar's catalogue pictures of its wares are not "copies" of the work within the meaning of § 10. Under the 1909 Copyright Act, "`[a] copy is that which comes so near to the original as to give every person seeing it the idea created by the original.' ... [It is] a tangible thing ... the publication and duplication of which it is the purpose of the statute to protect ...." White-Smith Music Co. v. Apollo Co., 209 U.S. 1, 17, 28 S.Ct. 319, 323, 52 L.Ed. 655 (1908) (Congress implicitly adopted this definition in the 1909 Copyright Act.) See 1 Nimmer on Copyright § 2.03[B] at 2-29 (1981).
In this case, the catalogue pictures are not copies of what was copyrightable in Kamar's work. That which was original, and copyrightable was the special texture and design of the stuffed animals. Photographs of the soft sculptures do not give viewers the idea created by the original; nor are the pictures the tangible things, the reproduction of which it is the purpose of the statute to protect. Distributing uncopyrighted pictures of the toys does not, therefore, invalidate Kamar's copyright. Berrie's point on this issue is not well taken. Cf. 1 Nimmer on Copyright, § 2.18[H] at 2-211 (1981) (three-dimensional copies of copyrighted illustrations do not constitute infringements).
Infringement is established by copying. Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir. 1977). Because, however, the act of copying is rarely witnessed, copying is ordinarily established indirectly. The plaintiff demonstrates that the defendant had access to the copyrighted items, and that the defendant's product is substantially similar to plaintiffs' work. Once this is done, the burden shifts to the defendant to prove his work was not copied, but independently created. See generally, 3 Nimmer on Copyright, Chpt. 13 (1981).
Berrie contends he had no access to Kamar's work, and that his stuffed animals are not substantially similar to Kamar's toy animals. Thus, he argues, even if Kamar's copyrights are valid, he has not infringed them. The district court agreed. The court misconceived the effect of the evidence.
In one finding, the court "found" that Berrie had no access to any of Kamar's stuffed toys. Yet in Finding 17, the court found that Berrie did business with the same Korean stuffed animal manufacturers employed by Kamar to make Kamar's stuffed animals. Under the cases, this evidence alone demonstrates access. Proof of access requires only "an opportunity to view or to copy plaintiff's work." Sid & Marty Krofft Television v. McDonald's Corp., supra, at 1172. And "evidence that a third party with whom both the plaintiff and defendant were dealing had possession of plaintiff's work is sufficient to establish access by the defendant ...." 3 Nimmer on Copyright, § 13.02[A] at 13-11 (1981), citing DeAcosta v. Brown, 146 F.2d 408 (2d Cir. 1944), cert. denied, 325 U.S. 862, 65 S.Ct. 1197, 89 L.Ed. 1983 (1945). The court was, therefore, in error in failing to shift to Berrie the burden of proof.
The court failed to find similarity between Berrie and Kamar's stuffed toy animals. The court used too strict a test. The test in this circuit for substantial similarity is the two-part test propounded in Sid & Marty Krofft Television, supra, at 1163-64. Professor Nimmer explains it correctly as follows:
The court below made no mention of Krofft, and nowhere does it employ the two-part test Krofft mandates. No findings of fact can be so construed. The only finding the court made on similarity indicates that the court used the analytic dissection method condemned by Krofft, or rather permitted by Krofft for the "extrinsic" test part only.
The cause must be remanded to the trial court for a specific decision upon the validity of the copyright, using the standards for validity described above; and for a reexamination of the question of infringement based upon the Krofft standards.
III. The Lanham Act Issue.
Kamar's second cause of action was brought under the Lanham Act, which is § 43(a) of the Trademark Act of July 5, 1946. See 15 U.S.C. § 1125(a). Kamar alleged that:
At the conclusion of the trial, the court concluded that the "[d]efendants have committed no acts which violate any provisions of the United States Trademark Act...." and that "[d]efendants have committed no acts which constitute unfair competition with plaintiffs." The findings which support these conclusions state that "[t]he Court finds that the testimony and exhibits illustrate the existence of one or more of the following significant differences in visual characteristics between respective pairs of plaintiffs' and defendants' soft sculptures...." and that "[d]efendants did not remove any of plaintiffs' labels from plaintiffs' purportedly copyrighted soft sculptures and market same upon the representation that the soft sculptures were those of defendants."
In reviewing the district court's findings, we must sustain them unless they are clearly erroneous. Fed.R.Civ.P. 52(a). Both the testimony and the exhibits support a finding that the defendants did not make exact copies of Kamar's toys; there were at least insignificant differences in the respective "soft sculptures."
Kamar's arguments on appeal might be construed to say that because Berrie distributed under the Berrie label soft sculptures which were "substantially similar" to Kamar's, Berrie violated the Lanham Act. These arguments were not made to the court below. Therefore, we will not consider them. See, e. g., Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2870, 49 L.Ed.2d 826 (1976).
Accordingly, the judgment is affirmed with respect to the Lanham Act count, and vacated and remanded with respect to the copyright cause of action.