Ty, the manufacturer of the popular “Beanie Babies” line of stuffed animals, has obtained a preliminary injunction under the Copyright Act against the sale by GMA (and also a retailer, but we can disregard that aspect of the injunction) of “Preston the Pig” and “Louie the Cow.” These are bean-bag animals manufactured by GMA that Ty contends are copies of its copyrighted pig (“Squealer”) and cow (“Daisy”). Ty began selling the “Beanie Babies” line, including Squealer, in 1993, and it was the popularity of the line that induced GMA to bring out its own line of bean-bag stuffed animals three years later. GMA does not contest the part of the injunction that enjoins the sale of Louie, but asks us on a variety of grounds to vacate the other part, the part that enjoins it from selling Preston.
We have appended to our opinion five pictures found in the appellate record. The first shows Squealer (the darker pig, actually pink) and Preston (white). The second is a picture of two real pigs. The third and fourth are different views of the design for Preston that Janet Salmon submitted to GMA several months before Preston went into production. The fifth is a picture of the two bean-bag cows; they are nearly identical. A glance at the first picture shows a striking similarity between the two bean-bag pigs as well. The photograph was supplied by GMA and actually understates the similarity (the animals themselves are part of the record). The “real” Preston is the same length as Squealer and has a virtually identical snout. The difference in the lengths of the two animals in.the picture is a trick of the camera. The difference in snouts results from the fact that the pictured Preston was a manufacturing botch. And GMA put a ribbon around the neck of the Preston in the picture, but the Preston that it sells doesn’t have a ribbon.
The two pigs are so nearly identical that if the second is a copy of the first, the second clearly infringes Ty's copyright. But identity is not infringement. The Copyright Act forbids only copying; if independent creation results in an identical work, the creator of that work is free to sell it. Selle v. Gibb,
The issue of copying can be broken down into two subissues. The first is whether the alleged copier had access to the work
*1170
that he is claimed to have copied; the second is whether, if so, he used his access to copy.
CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc.,
Obviously, access does not entail copying. An eyewitness might have seen the defendant buy the copyrighted work; this would be proof of access, but not of copying. But copying entails access. If, therefore, two works are so similar as to make it highly probable that the later one is a copy of the earlier one, the issue of access need not be addressed separately, since if the later work was a copy its creator must have had access to the original.
Selle v. Gibb, supra,
What troubled us in
Selle
but is not a factor here is that two works may be strikingly similar — may in fact be identical — not because one is copied from the other but because both are copies of the same thing in the public domain. In such a case — imagine two people photographing Niagara Falls from the same place at the same time of the day and year and in identical weather — there is no inference of access to anything but the public domain, and, equally, no inference of copying from a copyrighted work.
Id.
at 904;
Gracen v. Bradford Exchange,
But here it-is both. GMA’s pig is strikingly similar to Ty’s pig but not to anything in the public domain — a real pig, for example, which is why we have included in our appendix a photograph of real pigs. The parties’ bean-bag pigs bear little resemblance to real pigs even if we overlook the striking anatomical anomaly of Preston — he has three toes, whereas real pigs have cloven hooves. We can imagine an argument that the technology of manufacturing bean-bag animals somehow prevents the manufacturer from imitating a real pig. But anyone even slightly familiar with stuffed animals knows that there are many lifelike stuffed pigs on the market, and whether they are stuffed with beans or other materials does not significantly affect their verisimilitude — though here we must emphasize that any factual assertions in this opinion should be treated as tentative, since the case is before us on an appeal from the abbreviated record of a preliminary-injunction proceeding and a full trial may cast the facts in a different light.
Real pigs are not the only pigs in the public domain. But GMA has not pointed to any fictional pig in the public domain that Preston resembles. Preston resembles only Squealer, and resembles him so closely as to warrant an inference that GMA copied Squealer. In rebuttal all that GMA presented was the affidavit of the designer, Salmon, who swears, we must assume truthfully, that she never looked at a Squealer before submitting her design. But it is not her design drawing that is alleged to infringe the copyright on Squealer; it is the manufactured Preston, the soft sculpture itself, which, as a comparison of the first with the third and *1171 fourth pictures in the appendix reveals, is much more like Squealer than Salmon’s drawing is. And remember that the manufactured Preston in the photograph is a sport, with its stubby snout and its ribbon. Interestingly, these are features of Salmon’s drawing but not of the production-model Preston, suggesting design intervention between Salmon’s submission and actual production.
It is true that only a few months elapsed-between Salmon’s submission of the drawing to GMA and the production of Preston. But the record is silent on how long it would have taken to modify her design to make it more like Squealer. For all we know, it might have been done in hours — by someone who had bought a Squealer. The Beanie Babies are immensely popular. They are also, it is true, sometimes hard to find (though not this Christmas, in Chicago at any rate). Ty’s practice, apparently, is to create a shortage (that is, to price its bean-bag animals below the market-clearing price) in order to excite the market. But it is unbelievable that a substantial company like GMA which is in the same line of business as Ty could not have located and purchased a Squealer if it wanted to copy it. A glance at the last picture in the appendix shows an identity between Louie the Cow and Ty’s Daisy that is so complete (and also not explainable by reference to resemblance to a real cow or other public domain figure) as to compel an inference of copying. If GMA thus must have had access to Daisy, it is probable, quite apart from any inference from the evidence of similarity, that it had access to Squealer as well.
This discussion shows how the tension between
Gaste
and
Selle
can be resolved and the true relation between similarity and access expressed. Access (and copying) may be inferred when two works are so similar to each other and not to anything in the public domain that it is likely that the creator of the second work copied the first, but the inference can be rebutted by disproving access or otherwise showing independent creation — and in this connection GMA complains that the district judge refused to conduct an evidentiary hearing at which it might have presented evidence of independent creation. If genuine issues of material fact are created by the response to a motion for a preliminary injunction, an evidentiary hearing is indeed required.
Medeco Security Locks, Inc. v. Swiderek,
Even if fully credited, the affidavit does not establish the independent creation of Preston but merely the independent creation of a drawing that resembles Squealer much less than the production model of Preston does. This is not to deny that the affidavit is some evidence of independent creation of Preston, so it was relevant evidence. No one doubts that; and since it was already part of the evidentiary record, having its contents repeated orally would not have assisted the district judge.
But this is on the assumption that the judge credited the affidavit. If he did not even though it was not contradicted — if, for' example, he was laboring under the misapprehension that affidavits are inadmissible in *1172 preliminary-injunction proceedings — he would have committed an error that would have been cured by his allowing Salmon to testify in person, and his not allowing her to do so would therefore be a ground for appeal. But there is no basis for imputing such an error to the district judge. As we read his opinion, he credited Salmon’s affidavit and merely concluded, as do we, that it was only weak evidence of independent creation. Silence can be pregnant; the absence of any evidence of how the designer’s drawing was translated into the Squealer-resembling production model, combined with the similarity of that model to Squealer (and to nothing in the public domain) and with GMA’s obviously having copied Ty’s cow, overbore the weak evidence of the affidavit.
So, on the record compiled in the preliminary-injunction proceedings, Ty has indeed a strong case. But that is not the end of our inquiry. The granting of a preliminary injunction depends on proof of irreparable harm if the injunction is withheld as well as on the likelihood of success on the merits when the case is fully tried.
In re Forty-Eight Insulations, Inc.,
It relies primarily on a short-term promotional license that Ty granted McDonald’s to give away miniature Beanie Babies (“Teenie Beanie Babies”) to McDonald’s customers in their meal packets. This shows, says GMA, that Ty does not insist on having the exclusive right to distribute Beanie Babies to the consuming public, that it is willing to “sell” (or rent) that right, and hence that it would be fully compensated for any losses stemming from GMA’s copying simply by an award of damages measured either by GMA’s profits on its sales of Preston or by the reduction in Ty’s profits caused by the diversion of customers to the lookalike pig (whichever is greater). These are indeed allowable measures of damages, 17 U.S.C. § 504(b);
Taylor v. Meirick,
GMA presses on us a line of cases that hold that a patentee’s action in licensing his patent may disentitle him to a preliminary injunction against an infringer by showing that he is willing to surrender his exclusive rights in exchange for money.
High Tech Medical Instrumentation, Inc. v. New Image Industries, Inc.,
We may thus assume that if Ty licensed all who want to make Beanie Babies, appropriate compensatory relief in this case would be to make GMA pay for the license at Ty’s standard rate retroactive to the date on which GMA began selling Preston.
Kleier Advertising, Inc. v. Premier Pontiac, Inc.,
If GMA could show greater irreparable harm to itself from the grant of the injunction than irreparable harm to Ty from its denial, this would be another consideration to throw into the hopper in determining the appropriateness of the preliminary injunction. E.g.,
American Hospital Supply Corp. v. Hospital Products Ltd., supra,
We find no error of law, no clear error of fact, and no abuse of discretion in the grant of the preliminary injunction to Ty. The judgment of the district court is therefore
AFFIRMED.
*1174 APPENDIX
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