“It’s the original certificate of trademark registration for Gladly.”
“You mean Gladly the bear, of course.”
“I mean Gladly the Crow-Eyed Bear. The crossed eyes are a unique part of her design. As are the correcting eyeglasses. They are integral parts of the trade dress.”
“Your Honor, I offer the certificate in evidence.”
“Any objections?”
“None.”
“Your Honor, may we also mark this document?”
“Mark it plaintiff’s exhibit number three.”
“Ms. Commins, I now show you another document. Can you tell me what it is?”
“Yes, it’s the original copyright registration certificate for Gladly.”
“Did any drawings accompany the application for copyright?”
“They did.”
“And do they accurately depict the design of your bear?”
“And the bear’s eyeglasses.”
“Your Honor, I offer the copyright certificate and the accompanying drawings in evidence.”
“Objections?”
“None.”
“Ms. Commins,” I said, “how would you describe Gladly?”
“She’s a cross-eyed bear with big ears, a goofy smile, and eyeglasses that she can wear.”
“Are all these design elements original with you?”
“Yes.”
“Well, aren’t there other teddy bears in the world with big ears?”
“There are. But not like Gladly’s.”
“And goofy smiles?”
“Oh boy are there goofy smiles!” she said, and smiled in goofy imitation, which caused Santos to smile a bit goofily himself. “But not like Gladly’s.”
“Are there other cross-eyed teddy bears in the world?”
“None that I know of.”
“Then the copyrighted crossed eyes on Gladly are unique to your bear.”
“Yes.”
“As is the trademarked name.”
“Yes.”
“How about the eyeglasses? Aren’t there teddy bears who wear eyeglasses?”
“Not eyeglasses like these.”
“What’s different about these glasses?”
“They uncross her eyes.”
“No glasses like that on any other teddy bear in the world?”
“None that I know of.”
“When did the idea for this bear first come to you?”
There she was at last.
Or rather, there was her car, a faded green Chevy not unlike Warren’s own faded gray Ford, nondescript and unremarkable, nosing its way out of the parking lot like a sand shark. She looked both ways and then made a right turn and drove on up the block. Warren waited till the Chevy was out of sight. He checked his watch. Ten minutes to ten.
Give her another five minutes, he thought.
Make sure she didn’t forget something, decide to come back for it.
As Lainie Commins tells it, there are cul-de-sac streets in Calusa that make you think you’ve stepped into a time warp. Her house with its attached studio is on one of those streets. This is Calusa—this is, in fact, Florida—as it must have looked in the forties and fifties.
I have never thought of Calusa as a tropical paradise. Even in the springtime, when everything is in bloom, nothing really looks as lush or as bursting with color as it does in the Caribbean. As a matter of fact, to me, Calusa usually looks more brown than it does green, as if the grass, and the leaves on the trees and bushes, have been overlaid with a fine dust. Even the bougainvillea and hibiscus seem somehow limp and lacking in luster when compared to the extravagant display of these plants in truly tropical climates.
But in April…
Which is when the idea for Gladly first came to Lainie and which, coincidentally, was when I was flat on my ass in the Intensive Care Unit at Good Samaritan Hospital in a coma as deep as—but that’s another story.
In April, then, as Lainie tells it, the street on which she lives and works resembles a jungle through which a narrow asphalt road has been laid and left to deteriorate. The entrance to North Apple Street—there is no South Apple Street, by the way—is a mile and a half from the mainland side of the Whisper Key bridge. A sign at the street’s opening reads DEAD END appropriate in that North Apple runs for two blocks before it becomes an oval that turns the street back upon itself in the opposite direction.
Lining these two short blocks are twelve shingled houses with the sort of glass-louvered windows you could find all over Calusa in the good old days before it became a tourist destination for folks from the Middle West and Canada. The houses here are virtually hidden from view by a dense growth of dusty cabbage palm and palmetto, red bougainvillea, purple bougainvillea, white bougainvillea growing in dense profusion, sloppy pepper trees hung with curling Spanish moss, yellow-clustered gold trees, pink oleander, golden allamanda, trailing lavender lantana, rust-colored shrimp plants, yellow hibiscus, pink hibiscus, red hibiscus, eponymous bottlebrush trees with long red flowers—and here and there, the one true floral splendor of Calusa, the bird-of-paradise with its spectacular orange and bluish-purple crest.
People say about this street, “It’s still very Florida.”
Meaning it’s run-down and overgrown and wild and fetid and hidden and somehow secret and silent. “You expect to see alligators waddling out of the bushes on this street. “You expect to see bare-breasted, bare-chested Calusa Indians. What you do see are suntanned young sun-worshippers—some of them bare-chested or bare-breasted, true enough—living six or seven in each small house, performing any service that will keep them outdoors most weekdays and on the beaches every weekend. There are more gardeners, pool-cleaning people, house painters, window washers, tree trimmers, road maintenance workers, lifeguards and boatyard personnel living on the two blocks that form Apple Street than there are in the entire state of Nebraska.
In at least three of the houses here, there are people with artistic pretensions, but that is not unusual for the state of Florida in general and the city of Calusa in particular. Calusa calls itself the Athens of Southwest Florida, a sobriquet that causes my partner Frank—a transplanted native New “Yorker—to snort and scoff. Four people on Apple Street call themselves painters. Another calls himself a sculptor. A sixth calls herself a writer. Lainie Commins is the only true professional on the street. She is, after all, a trained designer with a track record of production, though none of the toys or dolls, or even a game in one instance, ever took off the way the companies for which she’d worked had anticipated.
The walls of her tiny studio are hung with actually manufactured toys she designed first for a company named Toy-works in Providence, where she worked for a year after her graduation from Risdee, and then for a company named Kid Stuff in Birmingham, Alabama, not far from her birthplace, and next for Toyland, Toyland right here in Calusa, where she worked for three years before setting out on her own in January.
The idea for Gladly comes to her at the beginning of April sometime, she can’t recall the exact date, and she tells that honestly to the Court now. The studio in which she works is so shadowed by the plants growing outside that it is dark even in the daytime. She works with a huge fluorescent light over her table, sketching ideas, developing them, refining them. She wears glasses when she works. In fact, she wears them all the time, except here in this courtroom today, where Matthew wants Judge Santos to notice that wandering right eye and forge a connection between Lainie’s condition and that of the bear she created. The strabismus, as her visual defect is called, commenced when she was three years old. At least, that was when her mother first detected what was then merely a slight turning-out of the right eye. Glasses failed to correct the condition. Two operations to shorten the muscle also proved fruitless. The right eye continued to wander. (When Lainie was sixteen, her mother confided to a friend that her daughter had “a wandering eye,” but she wasn’t talking about the strabismus.) Lainie explains her condition to the Court now, gratu
itously contributing the fact that the word “strabismus” comes from the Greek word strabos, which means “squinting”—there you are, lads. A cockeyed squint, after all!
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.
Keep Thou my way, O Lord
Hide my life in Thine;
O let Thy sacred light
O’er my pathway shine.
Kept by Thy tender care,
Gladly the cross I’ll bear
Hear Thou and grant…
…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.
Could borrow a dented red Subaru from a friend of his, could dress in tropical beige threads made him look like a visiting real estate salesman or a banker come to call, he still looked out of place in this shitty run-down condo where the only tenants were white. So he came cautiously down that long second-floor corridor with the sun hitting the rippled overhang at an angle that cast the plastic’s sickly green color onto the corridor floor and the lower part of the white wall, and he prayed none of the doors along that wall would open, prayed no one would step out to challenge him. He was a black man about to stealthily break and enter a structure or conveyance without consent of the owner or occupant,
but he wasn’t a burglar, and he didn’t choose to be mistaken for one.
Warren was carrying in his wallet a laminated card that had been issued in accordance with Chapter 493 of the Florida Statutes, and which gave its recipient the right to investigate and gather information on a great many criminal and noncriminal matters listed in detail in the statute. He took that card from his wallet now, and used it to loid the lock on the door to unit 24, her unit, sliding it deftly between doorjamb and Mickey Mouse spring latch, forcing the latch back until he felt the door give, and then easing himself into the unit and closing the door behind him at once.
His heart was pounding hard.
Sidney Brackett was asking Lainie if it wasn’t true that she had developed the idea for her so-called original bear Gladly while, in fact, she was still working at Toyland, Toyland. Lainie was vehemently denying this. Sitting at the defense table, Brett and Etta Toland sat calmly watching the proceedings, secure in the knowledge that Brackett would impeach my first witness and get this whole damned thing kicked summarily out of court.
Brett was forty-four years old, elegantly tailored in a blue blazer and gray slacks, white shirt open at the throat, no tie, shoes invisible under the table—but I guessed they were tasseled loafers—suntanned face exploiting eyes as blue as glare ice, thick blond hair casually styled. He sat holding his wife’s left hand in his own right hand. Together, they presented the very image of solidarity against this impostor named Lainie Commins.
In Calusa society, such as it was, they were familiarly known as Lord and Lady Toland, though neither was either British or aristocratic. Host and hostess supreme—I remembered an outdoor party where Japanese lanterns festooned the lawn of their multimillion-dollar beachfront home, and goldfish swam in tiny bowls at the more than fifty outdoor tables, and the then governor of the state of Florida was in attendance—invitations to their extravaganzas were sought like tickets to the Super Bowl, though I’d personally felt somewhat uncomfortable in such resplendent digs, perhaps because I’d grown up poor in Chicago; maybe a person can never put poverty behind him.
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