Etta Toland…
Ett and Brett, they were called by close friends who cherished the Tolands, and their Fatback Key mansion, and their parties, and their tennis court and swimming pool, and their ninety-four-foot yawl named Toy Boat, and their private jet that didn’t have a name though both jet and yacht had painted respectively on fuselage and transom the logo of their toy company, two dolls sitting with legs extended and heads together, the boy with blond hair, the girl with black hair, each smiling radiantly. This same logo was on the little round tag attached to the second teddy bear on Matthew’s table, little boy and girl with TOYLAND in a semicircle above their heads, and another TOYLAND in a semicircle below their legs, TOYLAND, TOYLAND, for Toland, Toland, here now to defend themselves against Lainie Commins’s charges of copyright and trademark infringement.
Thirty-seven-year-old Etta had hair as black as that on the little grinning girl-doll in the company logo, worn straight and sleek and to the shoulders. High sculpted cheekbones, very dark almond-shaped eyes, and a generous mouth glossed with blood-red lipstick collaborated with the straight, lustrous, jet-black hair to give her a somewhat Oriental appearance, although her maiden name was Henrietta Becherer, and her forebears were German—a fact that didn’t stop competitors and/or detractors from labeling her “The Dragon Lady.” Rumor had it that Brett had met her at a toy fair in Frankfurt, where she’d been pitching at the Gebrüder Hermann booth. On this hot Tuesday morning in September, she looked cool, self-possessed, businesslike and yet utterly feminine in a glen-plaid silk suit the color of twilight, worn with a dusky blue silk shirt open at the throat over a medallion print scarf. Above the left hand clutched in her husband’s right, a gold cuff link showed where her jacket sleeve ended.
“Do you remember which toys you were working on during your employment?” Brackett asked.
“Do you mean at Toyland?”
“Yes. That was…how long did you say you’d worked there, Miss Commins?”
“I left them in January. I’d been working there for three years by then.”
“This past January?”
“Yes.”
“Worked for them for three years.”
“Yes.”
“Do you remember which toys you designed for them during those three years?”
“I remember all of them.”
“Wasn’t the idea for Gladly suggested to you…?”
“No, it was not.”
“Your Honor, may I finish my question?”
“Yes, go ahead. Please listen to the complete question before answering, Miss Commins.”
“I thought he was finished, “Your Honor.”
“Let’s just get on with it,” Santos said impatiently.
“Isn’t it true that the idea for Gladly was suggested to you by Mr. Toland…?”
“No, that isn’t true.”
“Miss Commins, let him finish, please.”
“Suggested to you by Mr. Toland at a meeting one afternoon during the month of September last year?”
“No.”
“While you were still in the employ of…?”
“No.”
“…Toyland, Toyland, isn’t that true, Miss Commins?”
“No, it is not true.”
“Isn’t it true that this original idea of yours was, in fact, Mr. Toland’s?”
“No.”
“Didn’t Mr. Toland ask you to work up some sketches on the idea?”
“No.”
“Aren’t the sketches you showed to the court identical to the sketches you made and delivered to Mr. Toland several weeks after that September meeting?”
“No. I made those sketches this past April. In my studio on North Apple Street.”
“Oh yes, I’m sure you did.”
“Objection,” I said.
“Sustained. We can do without the editorials, Mr. Brackett.”
“No further questions,” Brackett said.
Warren debated opening the door again, ramming a toothpick into the keyway, snapping it off close to the lock. Anyone trying to unlock the door from the outside would try to shove a key in, meet resistance, make a hell of a clicking racket pushing against the broken-off wood. Great little burglar alarm for anybody inside who shouldn’t be in there. Trouble was, she knew the toothpick trick as well as he did, she’d know immediately there was somebody in her digs. He’d be lucky she didn’t pull a piece, blow off the lock, and then shoot at anything that moved, blowing off his head in the bargain.
He locked the door.
Looked around.
The place was dim. White metal blinds drawn against the sun at the far end of the room. Sofa against what was apparently a window wall, sunlight seeping around the edges of the blinds. Sofa upholstered in a white fabric with great big red what looked like hibiscus blossoms printed on it. His eyes were getting accustomed to the gloom. The place looked a mess. Clothes strewn all over the floor, empty soda pop bottles and cans, cigarette butts brimming in ashtrays—he hadn’t known she’d started smoking again, a bad sign. He wondered if the place always looked like a shithouse, or was it just now? On the street outside, he heard a passing automobile. And another. He waited in the semidark stillness of the one room. Just that single window in the entire place, at the far end, the only source of light, and it covered with a blind. Figured the sofa had to open into a bed, else where was she sleeping?
Door frame, no door on it, led to what he could see was a kitchen. Fridge, stove, countertop, no window, just a little cubicle the size of a phone booth laid on end, well, he was exaggerating. Still, he wouldn’t like to try holding a dinner party in there. He stepped into the room, saw a little round wooden table on the wall to his right, two chairs tucked under it. Kitchen was a bit bigger than he’d thought at first, but he still wouldn’t want to wine and dine the governor here.
Pile of dirty dishes in the sink, another bad sign.
Food already crusted on them, meant they’d been there a while, an even worse sign.
He opened a door under the sink, found a lidded trash can, lifted the lid, peered into it. Three empty quart-sized ice cream containers, no other garbage. Things looking worse by the minute. He replaced the lid, closed the door, went to the fridge and opened it. Wilting head of lettuce, bar of margarine going lardy around the edges, container of milk smelling sour, half an orange shriveling, three unopened cans of Coca-Cola. He checked the ice cube trays. Hadn’t been refilled in a while, the cubes were shrinking away from the sides. He nearly jumped a mile in the air when he spotted the roach sitting like a spy on the countertop alongside the fridge.
They called them palmetto bugs down here. Damn things could fly, he’d swear to God. Come right up into your face, you weren’t careful. Two, three inches long some of them, disgusting. There were roaches back in St. Louis, when he lived there, but nothing like what they had down here, man. He closed the refrigerator door. Bug didn’t move a muscle. Just sat there on the countertop watching him.
Another car passed by outside.
Real busy street here, oh yes, cars going by at least every hour or so, a virtual metropolitan thoroughfare. He just hoped one of them wouldn’t be her car, pulling into the parking lot, home from market, surprise!
He figured that’s where she’d be, ten-thirty in the morning, probably down in Newtown, doing her marketing. He hoped to hell he was wrong. The roach—palmetto bug, my ass!—was still on the countertop, motionless, watching Warren as he went back into the main room of the unit, the living room/bedroom/dining room, he guessed you would call it. Red hibiscus sofa against the far wall, he walked to it, and leaned over it and opened the blinds, letting in sunlight.
I had only one other witness, an optometrist named Dr. Oscar Nettleton, who defined himself as a professional engaged in the practice of examining the eye for defects and faults of refraction and prescribing corrective lenses or exercises but not drugs or surgery. He modestly asserted that he was Chairman of, and Distinguished Professor in, Calusa Univers
ity’s Department of Vision Sciences. I elicited from him the information that Lainie Commins had seemed elated…
“Objection, Your Honor.”
“Overruled.”
…and glowing with pride…
“Objection.”
“Overruled.”
…and confident and very up…
“Objection.”
“Sustained. One or two commonsense impressions are quite enough for me, Mr. Hope.”
…when she’d come to him this past April with her original drawings for Gladly and her requirements for the eyeglasses the bear would wear.
“She kept calling them the specs for the specs,” Nettleton said, and smiled.
He testified that his design for the eyeglasses was original with him, that he’d received a flat fee of three thousand dollars for the drawings, and had signed a document releasing all claim, title and interest to them and to the use or uses to which they might be put.
Brackett approached the witness stand.
“Tell me, Dr. Nettleton, you’re not an ophthalmologist, are you?”
“No, I’m not.”
“Then you’re not a physician, are you?”
“No, I’m not.”
“You just make eyeglasses, isn’t that so?”
“No, an optician makes eyeglasses. I prescribe correctional lenses. I’m a doctor of optometrics, and also a Ph.D.”
“Thank you for explaining the vast differences, Doctor,” Brackett said, his tone implying that he saw no real differences at all between an optician and an optometrist. “But, tell me, when you say the design for these eyeglasses is original with you, what exactly do you mean?”
“I mean Miss Commins came to me with a problem, and I solved that problem without relying upon any other design that may have preceded it.”
“Oh? Were there previous designs that had solved this problem?”
“I have no idea. I didn’t look for any. I addressed the problem and solved it. The specifications I gave her were entirely original with me.”
“Would you consider them original if you knew lenses identical to yours had been designed prior to yours?”
“My design does not make use of lenses.”
“Oh? Then what are eyeglasses if not corrective lenses?”
“The lenses in these glasses are piano lenses. That is, without power. They are merely clear plastic. If you put your hand behind them, you would see it without distortion. They are not corrective lenses.”
“Then how do they correct the bear’s vision?”
“They don’t, actually. They merely seem to. What I’ve done is create an illusion. The teddy bear has bilaterally crossed eyes. That is to say, the brown iris and white pupil are displaced nasalward with respect to the surrounding white scleral-conjunctival tissue of the eye. As in the drawing Ms. Commins first brought to me. What I did…”
“What you did was design a pair of eyeglasses you say are original with you.”
“They are not eyeglasses, but they are original with me.”
“When you say they’re original, are you also saying you didn’t copy them from anyone else’s eyeglasses?”
“That’s what I’m saying. And they’re not eyeglasses.”
“Your Honor,” Brackett said, “if the witness keeps insisting that what are patently eyeglasses…”
“Perhaps he’d care to explain why he’s making such a distinction,” Santos said.
“Perhaps he’s making such a distinction because he knows full well that his design is copied from a pair of eye—”
“Objection, Your…”
“I’ll ignore that, Mr. Brackett. I, for one, certainly would like to know why Dr. Nettleton doesn’t consider these eyeglasses. Dr. Nettleton? Could you please explain?”
“If I may make use of my drawings, Your Honor…”
“Already admitted in evidence, Your Honor,” I said.
“Any objections, Mr. Brackett?”
“If the Court has the time…”
“I do have the time, Mr. Brackett.”
“Then I have no objections.”
I carried Nettleton’s drawings to where he was sitting in the witness chair. He riffled through the stapled pages and then folded back several pages to show his first drawing.
“These are the plastic crossed eyes that are attached to the teddy bear’s face. As you can see, the iris and pupil are displaced nasalward.”
“And this is a drawing of the plastic straight eyes as they’re reflected within the spectacles I designed.”
“May I see it, please?”
Nettleton handed the drawing to him.
“By reflected…”
“With mirrors, Your Honor.”
“Mirrors?”
“Yes, Your Honor. If I may show you my other drawings.”
“Please.”
Nettleton turned some more pages, folded them back, and displayed another drawing to Santos.
“This is the teddy-bear optical schematic,” he said. “It illustrates the manner in which I expressed the optical principles of my system for producing apparently straight eyes. A and D are button eyes that will be seen by reflection from the right and left mirrors. Their images only appear to be at R and L respectively.”
“For the right eye, the distance from A to B equals the distance from B to R at the plane of the bear’s face. Similarly, for the left eye, the distance from C to D equals the distance from C to L. The lenses, as I mentioned earlier, are plano lenses.”
“I’m not sure I understand,” Santos said.
“The next drawing will make it entirely clear,” Nettleton said, and began leafing through the specs again.
“Your Honor,” Brackett said, “this is all enormously fascinating…”
“Actually, I do find it fascinating,” Santos said.
“But it has nothing to do with whether the design was copied or…”
“It may have everything to do with differences between the two bears, Mr. Brackett.”
“Your Honor, in order to show originality, substantial diff—”
“Well, let’s see the drawing, shall we?” Santos said. “Have you found it, Dr. Nettleton?”
“Yes, I have it right here,” Nettleton said, and handed the pages back to Santos.
“This drawing illustrates the implementation of the optical system in the manner in which I expressed it. As you see, the wraparound frame allows attachment of the button eyes A and D to the inside surface of the broad temples. The forty-five-degree mirrors are attached to the inside of the front frame and extend back to the temples. The depth of the frame conceals the mirrors. Thus, when the uncrossed plastic eyes and surrounding fur—integrated into the temples—are reflected into the fully silvered mirrors, they appear to be originating from the facial plane of the actual teddy bear.”
“That is ingenious,” Santos said.
“Thank you.”
“Ingenious, Dr. Nettleton.”
“Thank you very much.”
“Don’t you think that’s ingenious, Mr. Brackett?”
“If you’re using the word to mean marked by originality in conception, I must take exception, Your Honor. In fact, if I may continue with my cross…”
“Yes, please do. Ingenious, Dr. Nettleton,” Santos said, and handed the specifications back to him. “Ingenious.”
Brackett cleared his throat.
“Dr. Nettleton,” he said, “would you know whether there are any eyeglasses in existence which are identical or even very similar to the ones you designed for Miss Commins?”
“I have no knowledge of any device which appears to be a pair of eyeglasses but which is in reality merely a carrier, if you will, for reflective mirrors. If designs for any such device exist, I had no access to them.”
“Ah, access. Did Mr. Hope ask you to mention access?”
“No, he did not.”
“Do you understand the meaning of the word ‘access’ as it pertains to copyright matters?”
“I don’t know anything about copyright. I’m an optometrist. I examine the eye for defects and faults of refraction…”
“Yes, yes.”
“…and prescribe corrective lenses or exercises…”
“Yes, but not drugs or surgery Thank you, we already have that, Doctor. What does access mean to you?”
“It means I saw something. I had access to it. I knew about it.”
“As pertains to copyright matters, it can also mean you had reasonable opportunity to have seen it.”
“I never saw any device like the one I designed for Miss Commins.”
“What if I told you that eyeglasses similar to yours…”
“They are not eyeglasses!”
“Your Honor,” I said, getting to my feet, “do you think we might stipulate that Dr. Nettleton’s design is not for eyeglasses, but only for a device made to look like eyeglasses?”
“I’ll make no such stipulation,” Brackett said.
“Then might Mr. Brackett refrain from calling them eyeglasses, when clearly…”
“What should I call eyeglasses but eyeglasses?”
“Let him call them what he chooses, Mr. Hope. Let’s just get on with this, shall we?”
“Thank you, Your Honor,” Brackett said, and turned back to the witness. “Dr. Nettleton, are you aware that a design for eyeglasses remarkably similar to yours appeared in an industry technical journal many years ago? Would you still say you had no access?”
“I never saw my device anywhere.”
“Do you read trade journals?”
“I do.”
“Do you read Optics and Lenses?”
“I’ve read it on occasion.”
“Have you read the March 1987 issue of that magazine?”
“No.”
“Your Honor, I ask the Court to take judicial notice that this magazine I hold in my hand is the March 1987 issue of Optics and Lenses.”
“Mr. Hope? Do you dispute this?”
“No, Your Honor.”
“Judicial notice taken. Move it into evidence as exhibit A for the defense.”
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