IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION


SKYLINE DESIGN, INC.,
Plaintiff,

v.

McGRORY GLASS, INC.,
Defendant.

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Case No. 1:12-cv-10198

Honorable Edmond E. Chang



McGRORY GLASS, INC.’S MOTION FOR JUDGMENT
ON THE PLEADINGS UNDER FED. R. CIV. P. 12(C) AND
SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

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I. INTRODUCTION
The Court should enter judgment on the pleadings in favor of McGrory and dismiss
Plaintiff’s copyright infringement case because there are no facts upon which Plaintiff can ever
state a claim for relief. No reasonable jury could find defendant McGrory Glass, Inc.’s
(“McGrory”) accused MII-247 design substantially similar to the protectable aspects of
Plaintiff’s “Sateen” design. As Plaintiff must prove substantial similarity as an essential element
of its copyright infringement claim, the complaint fails as a matter of law.
As an initial matter, it is important to recognize that Plaintiff’s registered copyright
entitled “Sateen” which has been asserted in this case covers only a particular two-dimensional
graphic design. Although Plaintiff has applied that two-dimensional design to three-dimensional
clear glass panels used for architectural purposes, Plaintiff cannot by doing so expand the scope
of its copyright beyond the two-dimensional graphic design it registered. Specifically, Plaintiff’s
copyright does not extend to the type of medium on which the design is placed; the medium’s
thickness, translucence, or dimension; the practice of etching on glass; the three-dimensional
effect created by etching on two sides of glass; or the vertical/horizontal orientation of the design
on the medium. It cannot be disputed that McGrory is free to compete with Plaintiff in the sale
of clear, architectural glass panels etched on one side or two.
The differences apparent in the accused design are significant and dispositive, given the
limited scope of Plaintiff’s copyright after unprotectable concepts and techniques are identified.
Moreover, both the linear simplicity of the “Sateen” design and its realistic reproduction of
woven strands of fiber as can be found in commonplace, generic fabric designs limit Plaintiff’s
rights to, at best, a “thin” copyright, enforceable only against a substantially undeviating
reproduction. Here, the works speak for themselves: the pattern of parallel bars applied to
McGrory’s MII-247 product and the pattern of woven strands of the “Sateen” design depicted in
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the Complaint and the Amended Answer are not substantially similar, thus there can be no
copyright infringement as a matter of law.
Pursuant to the Local Rules and this Court’s Case Management Procedures, this Motion
is made following the conference of counsel which took place on February 5, 2013. Counsel for
Plaintiff stated that Plaintiff opposes this Motion.
1

II. BACKGROUND
Plaintiff Skyline Design, Inc. (“Plaintiff”) claims ownership of U.S. Copyright
Registration No. VA 1-364-683, dated May 9, 2006, covering a two-dimensional graphic design
entitled “Sateen.” Exh. 1 at ¶¶ 16, 17, 21; Exh. 2 at 2. Plaintiff etches this design on
architectural glass panels that it sells for use as windows, interior glass walls and dividers.
Exh. 1 at ¶¶ 16, 22. Plaintiff initially attempted to register the “Sateen” design as a “three-
dimensional sculpture,” “two-dimensional artwork,” and “architectural work.” See Exh. 2 at 2.
The Copyright Office, however, disagreed with Plaintiff’s description of what was copyrightable,
and Plaintiff’s application was amended to clarify that the subject work was, in fact, a “two-
dimensional artwork.” See id. at 3 (amendment dated 7/17/06).
A copy of the “Sateen” design filed with the U.S. Copyright Office shows—and Plaintiff
in its allegations confirms—that the original aspect of the “Sateen” design is no more than
“a pattern of lines of varying thicknesses and distances from each other . . .” Exh. 1 at ¶ 46;
see generally Exh. 2. The “Sateen” design comprises wavy lines of varying thicknesses that
touch and intersect intermittently. See Exh. 7. The wavy lines are closely spaced, such that they
overlap and merge together at times. See id.

1
Counsel for Plaintiff also indicated that Plaintiff may seek to amend its Complaint to
add a different McGrory product. Should Plaintiff do so, McGrory reserves the right to respond
to such amended complaint, as it deems appropriate.
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The “Sateen” design is one of Plaintiff’s “Weaves & Textures” design collection, and,
indeed, the “Sateen” design looks like loosely woven strands of fiber, with single strands
branching off into multiple strands and coming back together. See id. According to Plaintiff’s
website, in creating the collection that includes “Sateen,” Plaintiff looked at “everyday fabrics
used by indigenous peoples from Mexico and Africa.” See Exh. 8. Plaintiff correctly considers
“Sateen” a “timeless classic[]” design, id., as “sateen” is a term of art for a fabric made with a
“satin weave” that confers a smooth, lustrous finish. See Merriam-Webster Dictionary,
Definition of “Sateen,” available at http://www.merriam-webster.com/dictionary/sateen (last
visited Feb. 6, 2013) (Exh. 18); see also Definition of “Satin Weave,” available at
http://www.merriam-webster.com/dictionary/satin%20weave (last visited Feb. 6, 2013) (Exh.
19).
2

Defendant McGrory Glass, Inc. (“McGrory”) purchases architectural glass from an
Italian company, OmniDécor S.p.A., under the OmniDecor designations “Rain,” on which the
design is etched on one side of the glass panel (see Exh. 5, photograph of “Rain”), and
“Bi-Rain,” on which the same design is etched on both sides of the glass panel (see Exh. 6,
photograph of “Bi-Rain,” which McGrory designates as “MII-247”). See Exh. 3 at ¶¶ 24, 27.
The design etched on MII-247 products consists of parallel lines of varying thickness and
distances that do not branch off or intersect. See Exh. 6. The design on the accused product,
MII-247, has an appearance similar to a bar code. See id.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the
pleadings and dismissal of the complaint after both the plaintiff’s complaint and the defendant’s

2
The Court may properly take judicial notice of these dictionary definitions. Fed. R.
Evid. 201(b).
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answer have been filed. Fed. R. Civ. P. 12(c). A motion for judgment on the pleadings is
decided based upon a review of the pleadings. Northern Indiana Gun & Outdoor Shows, Inc. v.
City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). The pleadings include the complaint, the
answer, and any written instruments attached as exhibits. Id. at 452-53; see also Arethas v.
S/TEC Group, Inc., No. 04-cv-6743, 2005 WL 991782, at *6 (N.D. Ill. Apr. 14, 2005) (Exh. 13).
Rule 12(c) motions are reviewed under the same standard as Rule 12(b)(6) motions to dismiss.
Piscotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). On a Rule 12(b)(6) motion,
a court must accept well-pleaded allegations as true; however, factual allegations must be
disregarded if they constitute nothing more than “legal conclusions” or “naked assertions.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007) (“[A] plaintiff’s obligation to provide
the grounds of his entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of a cause of action’s element will not do.”).
In a copyright infringement case, “substantial similarity” is an objective test and a
threshold issue that can be properly resolved at the motion to dismiss stage of litigation.
See, e.g., Peters v. West, 776 F. Supp. 2d 742, 751 (N.D. Ill. 2011), aff’d, 692 F.3d 629 (7th Cir.
2012); Hobbs v. John et al., No. 12-cv-3117, 2012 WL 5342321, at *2-3 (N.D. Ill. Oct. 29, 2012)
(Exh. 14) (finding no substantial similarity as a matter of law); O’Leary v. Books, No. 08-cv-
0008, 2008 WL 3889867, at *2-3 (N.D. Ill. Aug. 18, 2008) (Exh. 15) (same). “[W]here, as here,
the works in question are attached to a plaintiff’s complaint, it is entirely appropriate for the
district court to consider the similarity between those works in connection with a motion to
dismiss, because the court has before it all that is necessary to make such an evaluation.”
Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010). If the
Court determines that the two works are “not substantially similar as a matter of law,” Kregos v.
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Assoc. Press, 3 F.3d 656, 664 (2d Cir. 1993), the Court can properly conclude that the plaintiff’s
complaint, together with the works incorporated therein, do not “plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In this case, the MII-247 design is not substantially similar to the “Sateen” design as a
matter of law because (1) when medium, technique and concept are properly removed from
consideration, the “Sateen” design is a simple linear design that realistically represents woven
strands of a fabric or textile, thus Plaintiff’s copyright is “thin” and should be afforded limited
protection; and (2) the MII-247 design is different in several ways, and does not appropriate any
protectable aspect of the “Sateen” design. Because substantial similarity, a key element of
Plaintiff’s claim, is absent, the defects in Plaintiff’s complaint cannot be cured by amendment or
discovery. Accordingly, judgment on the pleadings should be entered in McGrory’s favor and
the complaint should be dismissed with prejudice for failure to state a claim upon which relief
can be granted. See Fed. R. Civ. P. 12(c).
IV. ARGUMENT
A. PLAINTIFF’S COPYRIGHT CLAIM FAILS AS A MATTER OF LAW
To prove copyright infringement, Plaintiff must establish: “(1) ownership of a valid
copyright; and (2) unauthorized copying of constituent elements of the work that are original.”
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991); Peters, 692 F.3d at
632. Absent evidence of direct copying, Plaintiff must show that McGrory had access to
Plaintiff’s work and the two works are substantially similar. Peters, 692 F.3d at 633; see also
Nova Design Build v. Grace Hotels, LLC, 652 F.3d 814, 817-18 (7th Cir. 2011).
3


3
For purposes of this motion only, McGrory does not dispute that Skyline possesses a
valid copyright in the “Sateen” design or that McGrory had access to the copyrighted work.
Therefore, the sole issue to be decided on this motion is whether, as a matter of law, there is
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Thus, to survive a motion for judgment on the pleadings, Plaintiff must plausibly plead
that the protectable elements of the “Sateen” design are substantially similar to the design
applied to McGrory’s MII-247 product. Iqbal, 556 U.S. at 678. The test in the Seventh Circuit
for determining whether there is substantial similarity is the “ordinary observer” test, i.e.,
whether “the accused work is so similar to the plaintiff’s work that an ordinary reasonable person
would conclude that the defendant unlawfully appropriated the plaintiff’s protectable
expression.” Susan Wakeen Doll Co., Inc. v. Ashton-Drake Galleries, 272 F.3d 441, 450
(7th Cir. 2001); Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 509 (7th Cir.
1994).
Because the test for substantial similarity is an objective test, JCW Inv., Inc. v. Novelty,
Inc., 482 F.3d 910, 916 (7th Cir. 2007), the Court may visually compare the two works at the
pleading stage and determine that they are not substantially similar. See, e.g., Peters v. West,
776 F. Supp. 2d 742, 751 (finding no substantial similarity as a matter of law); O’Leary, 2008
WL 3889867, at *2-3 (Exh. 15) (same); Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1137
(C.D. Cal. 2007) (same); Daley v. Granada U.S. Productions, No. 02-2629, 2003 WL 21294986,
at *1 (E.D. Pa. Jan. 29, 2003) (Exh. 16) (same). For example, this Court compared the lyrics of
two songs on a motion to dismiss and determined that the lyrics are not substantially similar as a
matter of law because the copyrighted work included common themes, words, and phrases not
protected by the Copyright Act. Hobbs, 2012 WL 5342321, at *7 (Exh. 14).
Although works are to be considered as a whole, identifying the unprotectable elements
in the “Sateen” design is a threshold inquiry that must first be made to determine the extent of
the copyright:

substantial similarity between the “Sateen” copyrighted design and the design applied to the MII-
247 product.
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[T]he trick is to begin with the allegedly aggrieved work in one
hand and nothing in the other hand and ask “Is it copyrightable?
And if so, in what respect? To what extent?” Those limiting
questions define whether a comparison need to be made at all and,
if so, also defines the universe for such a comparison. It is
axiomatic that copyright protects expression, not ideas . . . So the
question is not whether plaintiff’s materials contained any original
expression, but whether the [defendant’s work] copied protectable
parts of that expression or merely used the same underlying ideas.

Francorp, Inc. v. Siebert, 210 F. Supp. 2d 961, 965 (N.D. Ill. 2001) (citing Sassafras
Enterprises, Inc. v. Roshco, Inc., 889 F. Supp. 343, 348 (N.D. Ill. 1995)).
It is axiomatic that copyright protects original expression, not concepts, techniques or
other unprotectable elements. 17 U.S.C. § 102(b); Wildlife Express, 18 F.3d at 511-12; Roulo v.
Russ Berrie & Co., 886 F.2d 931, 939 (7th Cir. 1989). Thus, in applying the ordinary observer
test, a court must first “filter out ideas, processes, facts, idea/expression mergers, and other
unprotectable elements of plaintiff’s copyrighted materials to ascertain whether the defendant
infringed protectable elements of those materials.” Francorp, 210 F. Supp. 2d at 965; Pampered
Chef Ltd. v. Magic Kitchen, Inc., 12 F. Supp. 2d 785, 791-92 (N.D. Ill. 1998). This analysis will
“define whether a comparison [of the copyrighted work and accused work] need to be made at all
and, if so, also defines the universe for such a comparison.” Francorp, 210 F. Supp. 2d at 965
(citation omitted).
When a copyrighted expression adds little new or additional to an idea, the copyright is
“thin,” and the copyrighted expression can be protected only against “virtually identical
copying.” Atari, Inc. v. North American Philips Consumer Elecs. Corp., 672 F.2d 607, 616-17
(7th Cir. 1982); Gentieu v. Tony Stone Images/Chicago, Inc., 255 F. Supp. 2d 838, 850 (N.D. Ill.
2003) (“By utilizing her expression in such a way as to create a naked baby and nothing else the
plaintiff limits her copyright protection to the identical copying of the copyrightable elements of
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her work.”). Here, the idea embodied in the “Sateen” design is that of woven strands or fabric.
As fully set forth below, the “Sateen” design adds little, if anything, to that idea.
1. Plaintiff’s “Sateen” Copyright Is Extremely Limited in Scope.
In this Circuit, copyrights are deemed to be of limited scope and protected against only
identical copying when idea and expression are indistinguishable or closely aligned. As a work
embodies more and more particularized expression, the work properly receives proportionally
broader copyright protection. Atari, 672 F.2d at 616-17; Pampered Chef, 12 F. Supp. 2d at 791-
92.
The “Sateen” design falls decidedly on the weak end of the copyright spectrum. First,
Plaintiff acknowledges that the “Sateen” design, part of Plaintiff’s “Weaves and Textures”
design collection, was inspired by the “everyday fabrics of the indigenous peoples of Mexico and
Africa.” See Exh. 12. Setting aside the validity question of whether Plaintiff copied the
“Sateen” design from another’s pre-existing design, irregularly spaced, sometimes overlapping,
strands (lines) of varying thicknesses is an idea inherent in commonplace, woven fabrics. Thus,
anyone who wants to evoke the idea of a woven fabric on architectural glass is free to do so.
Even the name of Plaintiff’s design, “Sateen,” indicates that the design is based on a
commonplace woven fabric, sateen.
4
Plaintiff’s design faithfully represents a fabric’s weave,
and therefore adds little, if anything, to the underlying idea.
Second, in its Complaint, Plaintiff itself acknowledges the narrow metes and bounds of
its copyright: it is the “ornamental pattern of lines of varying thicknesses and distances from
each other which constitute original aspects of the Sateen . . .” Exh. 1 at ¶ 46. However,

4
“Sateen” is a term of art for a fabric made with a “satin weave” that confers a smooth,
lustrous finish. See Merriam-Webster Dictionary, Definition of “Sateen,” available at
http://www.merriam-webster.com/dictionary/sateen (last visited Feb. 6, 2013) (Exh. 18); see also
Merriam-Webster Dictionary, Definition of “Satin Weave,” available at http://www.merriam-
webster.com/dictionary/satin%20weave (last visited Feb. 6, 2013) (Exh. 19).
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Plaintiff’s copyright does not extend to the idea of lines of varying thicknesses and distances, but
only to the specific distances and thicknesses Plaintiff chose when arranging the lines in the
“Sateen” pattern. Plaintiff asserts copyright in only one rendering of that idea – the “Sateen.”
Plaintiff’s copyright cannot preclude others from utilizing the idea of incorporating lines of
varying thicknesses and distances from each other in two-dimensional artwork.
Third, Plaintiff has no proprietary right in vertical application of its design on a medium.
Whether the design is applied to the medium vertically, horizontally, diagonally, or in some
other orientation is a manner of application, and manners of application, while perhaps in the
realm of patents, are concepts outside the scope of copyright. Thus, the fact that both Plaintiff’s
“Sateen” glass product and the MII-247 glass product show their respective designs in a vertical
orientation and the fact that both designs embody the concept of irregularly spaced lines must
also be disregarded in a substantial similarity analysis. See S.T.R. Indus., Inc. v. Palmer Indus.,
Inc., No. 96-cv-4251, 1999 WL 258455, at *4 (N.D. Ill. Apr. 9, 1999) (Exh. 17) (the placement
of artwork on pool cues is not the subject of copyright.).
Fourth, Plaintiff’s “Sateen” design is a very simple, repeating linear pattern, and for that
reason alone is not entitled to a broad scope of copyright protection. Lines are simple, geometric
figures that are not copyrightable. See Atari Games Corp. v. Oman, 979 F.2d 242, 247 (D.C. Cir.
1992) (“We do not in any way question the Register’s position that ‘simple geometric shapes . . .
are per se not copyrightable’”); Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541,
545 (2d Cir. 1959) (circular, rectangular, and octagonal shapes not protected). Copyright in a
simple repeating pattern of lines is thus necessarily weak.
Plaintiff likewise cannot claim exclusive copyright rights in the technique of etching a
two-dimensional design on one or two sides of clear architectural glass, notwithstanding that
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Plaintiff has chosen to apply the “Sateen” design to clear architectural glass by means of etching.
As Plaintiff has no intellectual property right to the medium (clear architectural glass) or the
method of application of the design (etching, on one side or two), Plaintiff greatly overreaches
insofar as its Complaint suggests that the visual appearance conferred on McGrory’s MII-247
product as etched, clear architectural glass is a point of similarity relevant to copyright
infringement. See Designer’s View, Inc. v. Publix Super Markets, Inc., 764 F. Supp. 1473, 1479
(S.D. Fla. 1991) (medium of artwork not protected by copyright because affording such
protection “would impermissibly narrow the possibilities available to other . . . designers.”).
The medium and method of application, and the appearance they naturally confer, are not
protectable by copyright, thus the similarity conferred by these unprotectable elements must be
disregarded in a substantial similarity analysis. Wildlife Express, 18 F.3d at 511-12.
Finally, given that designs that serve a utilitarian purpose are not copyrightable,
17 U.S.C. § 101 (definition of “pictorial, graphic or sculptural work”), the Court must consider
any useful qualities of the “Sateen” design in determining the extent of the copyright. Plaintiff
admits that its etched designs such as “Sateen” function for light diffusion and privacy screening.
Exh. 10 (“Our glass designs add beauty, light, and levels of privacy to your space”); Exh. 11
(“We decorate glass to alter the way it transmits light in the built environment. . .”). If the
“Sateen” design were removed from Plaintiff’s architectural glass panels, the product would no
longer diffuse light or provide privacy. Thus, the “Sateen” design is a utilitarian feature of
architectural glass having dubious copyrightability.
5
At best, the “Sateen” design is entitled to
very limited protection. See Stanislawski v. Jordan, 337 F. Supp. 2d 1103, 1113 (E.D. Wis.
2004) (“While the artistic element [of the engraved or carved words, symbols, or shapes] is

5
For purposes of this motion only, McGrory does not dispute that Skyline possesses a
valid copyright in the “Sateen” design, but does contest such copyright’s scope.
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separable from the useful article [i.e., a photograph frame], that element, once removed from the
frame, would receive little protection”). A design that consists of a repeating pattern of lines of
varying thicknesses and distances from each other adds such limited creativity to functional
etched architectural glass that the expression can be protected only against virtually identical
copying. See Atari, 672 F.2d at 616-17 (when expression adds little new or additional over an
idea, it falls towards one end of the spectrum of copyright protection, and can be protected only
against virtually identical copying). As discussed below, the significant differences between the
respective “Sateen” and MII-247 designs belie Plaintiff’s threadbare claim that the designs are
substantially similar.
2. The Design Applied to MII-247 Products Is Not Substantially Similar to the
Protectable Elements of “Sateen”
After all unprotectable features of “Sateen” are disregarded, a reasonable ordinary
observer’s visual comparison of the two designs at issue confirms that the design applied to MII-
247 is not substantially similar to “Sateen,” much less a literal reproduction, as required by
Plaintiff’s limited copyright.
6
Compare Exh. 7 (a color copy of a photograph of “Sateen”) with
Exh. 5 (a color copy of a photograph of “Rain” (the MII-247 design etched on one side of glass))
and Exh. 6 (a color copy of a photograph of “BiRain” (the MII-247 design etched on two sides of
glass)). When the “Sateen” and MII-247 (OmniDécor “BiRain”) designs are compared, the
several differences between the works are readily apparent.
7
See Exh. 4 (reproduced below).

6
McGrory asks this Court to compare the designs in Sateen and MII-247 pursuant to
Federal Rule of Civil Procedure 10(c) to determine that the works are not substantially similar.
See Peters, 692 F.3d at 633. Because the Complaint references the Plaintiff’s website, see Exh.
1 at ¶ 32, and the parties’ products, id. at ¶¶ 16-22, 27-28, 45-47, and these items are central to
this lawsuit, it is appropriate under Rule 10(c) and Seventh Circuit case law for the Court to
consider McGrory’s attachments to its Answer. See Geinosky v. City of Chicago, 675 F.3d 743,
745 n.1 (7th Cir. 2012); Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 556 (7th Cir. 2012);
Fed. R. Civ. P. 10(c).
7
Due to the inherent difficulty of photographing etched glass, the visual differences
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Exhibit 8: A photograph showing the Rain, MII-247 (BiRain), and Sateen designs.

The lines in McGrory’s design are parallel, creating the appearance of a bar code, and
thus do not appear “woven.” Specifically, the lines in McGrory’s design do not touch or merge
with one another, as do some lines in “Sateen.” The lines in McGrory’s design have different
thicknesses and spacing than do the lines in “Sateen.” Thus, McGrory’s design does not
appropriate any alleged “artistic judgment” that went into Plaintiff’s pattern of “lines of varying
thickness and distances from each other” in “Sateen.” See Exh. 1 at ¶ 46. Beyond the specific
spacing, thickness and weave-like arrangement of the “Sateen” design, there is no other
copyrightable element to “Sateen.”
A graphical illustration of “Sateen” and MII-247 (“BiRain”) designs showing the actual
etched designs in color, and in juxtaposition, confirms the differences in the patterns. See Exh. 9
(reproduced below).

between “Sateen” and “MII-247” are even more apparent when larger physical samples of the
products are compared. McGrory can provide the samples shown in the photographs attached to
its Answer and Affirmative Defenses should the Court wish to compare the “Sateen” and MII-
247 samples.
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Exhibit 9: A graphical depiction of Sateen and BiRain.

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A chart summarizing the differences between the parties’ respective designs is provided
below:
In summary, given these obvious visual differences, and given the limited scope of the
“Sateen” copyright and disregarding the non-protectable elements of Plaintiff’s “Sateen”
product, there can be no reasonable dispute that the design applied to McGrory’s MII-247 is
neither a literal reproduction nor substantially similar to “Sateen” as a matter of law. See, e.g.,
Peters, 776 F. Supp. 2d at 751-52; Hobbs, 2012 WL 5342321, at *7 (Exh. 14); O’Leary,
2008 WL 3889867, at *2-3 (Exh. 15). No reasonable jury could find it so.
V. CONCLUSION
For the foregoing reasons, McGrory requests that the Court enter judgment on the
pleadings in its favor on Plaintiff’s complaint for copyright infringement and award McGrory
attorneys’ fees and costs, pursuant to 17 U.S.C. § 505. Furthermore, because amendment of
Plaintiff’s complaint would be futile, McGrory requests dismissal of the complaint with
prejudice.









Sateen MII-247 (BiRain)
Branching, wavy lines Straight, parallel lines
Lines that touch and intersect
randomly
Lines do not touch or intersect
Lines are more regularly spaced
and closer together
Some lines are closely spaced;
others are spaced further apart
Organic, woven appearance “Bar code” appearance
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15

Dated: February 6, 2013 Respectfully submitted,


/s/ Karol A. Kepchar
Karol A. Kepchar (pro hac vice)
kkepchar@akingump.com
Emily C. Johnson (Bar #6289843)
johnsone@akingump.com
Laura Geyer (pro hac vice)
lgeyer@akingump.com
AKIN GUMP STRAUSS HAUER & FELD LLP
1333 New Hampshire Avenue, N.W.
Washington, DC 20036
Phone: (202) 887-4000

Steven D. Maslowski (pro hac vice)
smaslowski@akingump.com
AKIN GUMP STRAUSS HAUER & FELD LLP
Two Commerce Square
2001 Market Street, Suite 4100
Philadelphia, PA 19103
Phone: (215) 965-1200

Gregory V. Ginex (Bar #6282955)
gginex@bollingertrials.com
Daniel James VeNard (Bar #6307236)
dvenard@bollingertrials.com
BOLLINGER CONNOLLY KRAUSE LLC
500 W. Madison Street, Suite 2430
Chicago, Illinois 60661
Phone: (312) 253-6200

Attorneys for Defendant McGrory Glass, Inc.
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CERTIFICATE OF SERVICE

I, Gregory V. Ginex, hereby certify that I electronically filed the foregoing McGRORY
GLASS, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS UNDER FED. R. CIV. P.
12(C) AND SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES with the
Clerk of the Court for the Northern District of Illinois using the ECF System which will send
notification to the registered participants of the ECF System as listed on the Court’s Notice of
Electronic Filing this 6th day of February, 2013.

/s/ Gregory V. Ginex
Gregory V. Ginex

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1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION


SKYLINE DESIGN, INC.,
Plaintiff,

v.

McGRORY GLASS, INC.,
Defendant.

)
)
)
)
)
)
)
)
)


Case No. 12-cv-10198

Honorable Edmond E. Chang



EXHIBITS IN SUPPORT OF McGRORY GLASS, INC.’S MOTION
FOR JUDGMENT ON THE PLEADINGS UNDER FED. R. CIV. P. 12(C)

Exhibit
No.
Docket
No.
Description
1 1 Skyline Design, Inc.’s Complaint
2 1-1 Complaint Exhibit A, U.S. Copyright Registration No. VA-1-364-683
3 23 McGrory Glass Inc.’s Amended Answer and Affirmative Defenses
4 23-1 Amended Declaration of Emily C. Johnson
5 23-1 Amended Answer Exhibit 1, color copy of a photograph of “Rain”
6 23-1 Amended Answer Exhibit 2, color copy of a photograph of “BiRain”
7 23-1 Amended Answer Exhibit 3, color copy of a photograph of “Sateen”
8 23-1 Amended Answer Exhibit 4, color copy of a photograph “Rain,” MII-247
(“BiRain”) and “Sateen”
9 23-1 Amended Answer Exhibit 5, graphical depiction of Skyline’s “Sateen” and
McGrory’s MII-247 “BiRain”
10 23-1 Amended Answer Exhibit 6, http://www.skydesign.com/products/glass
11 23-1 Amended Answer Exhibit 7,
http://www.skydesign.com/sites/default/files/AboutGlass_TechnicalSpecific
ations.pdf
12 23-1 Amended Answer Exhibit 8,
http://www.skydesign.com/products/glass/weaves-textures
13 N/A Arethas v. S/TEC Group, Inc., No. 04-cv-6743, 2005 WL 991782 (N.D. Ill.
Apr. 14, 2005)
14 N/A Hobbs v. John et al., No. 12-cv-3117, 2012 WL 5342321 (N.D. Ill. Oct. 29,
2012)
15 N/A O’Leary v. Books, No. 08-cv-0008, 2008 WL 3889867 (N.D. Ill. Aug. 18,
2008)
16 N/A Daley v. Granada U.S. Productions, No. 02-2629, 2003 WL 21294986
(E.D. Pa. Jan. 29, 2003)
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2

17 N/A S.T.R. Indus., Inc. v. Palmer Indus., Inc., No. 96-cv-4251, 1999 WL 258455
(N.D. Ill. Apr. 9, 1999)
18 N/A Merriam-Webster Dictionary, Definition of “Sateen,” http://www.merriam-
webster.com/dictionary/sateen
19 N/A Merriam-Webster Dictionary, Definition of “Satin Weave,”
http://www.merriam-webster.com/dictionary/satin%20weave

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EXHIBIT 1
(Dkt. No. 1 – Skyline Design, Inc.’s Complaint)


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1451434
UNI TED STATES DI STRI CT COURT
NORTHERN DI STRI CT OF I LLI NOI S
EASTERN DI VI SI ON
__________________________________________
SKYLINE DESIGN, INC., )
)
Plaintiff, ) Case No.
-vs- )
)
)
MCGRORY GLASS, INC., ) J URY TRI AL DEMANDED
)
Defendant. )
COMPLAI NT
Plaintiff SKYLINE DESIGN, INC. (“SKYLINE”), by and through its undersigned
attorneys, alleges:
NATURE OF THE ACTI ON
1. Defendant MCGRORY GLASS, INC. (“MCGRORY”) has infringed and is
continuing to infringe SKYLINE’s copyright with knowledge that the architectural glass bearing
decorative etchings that they are importing, distributing, offering for sale, and selling infringe
SKYLINE’s copyright in violation of 17 U.S.C. § 501.
2. This suit seeks to redress and enjoin the willful, infringing activities of
MCGRORY.
THE PARTI ES
3. SKYLINE is a corporation organized under the laws of the State of Illinois having
its principal place of business at 1240 North Homan Avenue, Chicago, Illinois 60651.
4. SKYLINE designs, manufactures, and sells different types of glass, including
architectural glass that bears any of various original and aesthetic etched designs created by
SKYLINE.
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5. SKYLINE expends considerable resources to develop and create its attractive and
distinctive designs, for which it is known internationally.
6. SKYLINE also expends considerable resources protecting the intellectual
property rights it has in its designs, such as by routinely registering the non-functional and
artistic elements of its decorative glass designs with the United States Copyright Office.
7. Upon investigation and information, McGRORY is a corporation organized and
existing under the laws of the State of New J ersey, having a principal place of business at
1400 Grandview Avenue, Paulsboro, New J ersey 08066.
8. McGRORY is also in the business of selling architectural glass.
9. McGRORY is doing business in this State and District.
J URI SDI CTI ON AND VENUE
10. This is an action for copyright infringement arising under the copyright laws of
the United States as set forth in Title 17 of the United States Code Section 501, et seq.
11. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).
12. Venue is proper in the Northern District of Illinois under 28 U.S.C. §§ 1391(b),
(c), and 1400(a).
13. This Court has personal jurisdiction over defendant McGRORY consistent with
the principles underlying the U.S. Constitution.
14. Upon investigation and information, McGRORY is doing business in this State
and District, such as continuously and persistently conducting marketing and sales activities
herein, including such activities conducted by its sales representatives who are specifically
responsible for and regularly perform such activities in this State and District on behalf, and at
the specific direction, of McGRORY.
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15. Upon information and belief, McGRORY markets or has marketed, offers for sale
or has offered for sale, or sells or has sold products in this State and District that infringe on
SKYLINE’S copyrights.
BACKGROUND
SKYLI NE’s Copyright
16. In 2003, SKYLINE created an original decorative etching design for architectural
glass, which it designated “the Sateen.”
17. On May 9, 2006, U.S. Copyright Registration No. VA 1-364-683 (“SKYLINE’s
Copyright”) registered to SKYLINE for the Sateen. A true and correct copy of the valid
Certificate of Registration of SKYLINE’s Copyright is attached hereto and incorporated herein
as Exhibit A.
18. A deposit copy of the Sateen was filed with the U. S. Copyright Office and is
included in Exhibit A.
19. Several different magnifications of the Sateen were included in the deposit copy
filed with the U.S. Copyright Office. See Exhibit A.
20. The patterned, ornamental lines of varying thicknesses and distances from each
other constitute original aspects of the work protected by SKYLINE’s Copyright and were
selected, arranged, and created entirely on the basis of artistic judgment and to serve purely
aesthetic purposes.
21. SKYLINE is the sole and exclusive owner of all right, title, and interest in and to
the SKYLINE Copyright and the work protected thereby.
22. SKYLINE sells glass incorporating the decorative design protected by
SKYLINE’s Copyright and under the designation Sateen.
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MCGRORY’s Infringing Activities
23. Upon investigation and information, McGRORY imports decorative etched
architectural glass that incorporates unauthorized copies of SKYLINE’s Copyright.
24. Upon investigation and information, McGRORY imports decorative etched
architectural glass from and/or that is made by OmniDecor S.p.A. (“OmniDecor”), a glass
company located in Erba, Italy.
25. Upon investigation and information, etched architectural glass imported by
McGRORY from and/or that is made by OmniDecor incorporates unauthorized copies of
SKYLINE’s Copyright.
26. Upon information and belief, within this State and District, McGRORY has
marketed, offered for sale, and/or sold, and continues to market, offer for sale, and/or sell,
decorative etched architectural glass that incorporates unauthorized copies of SKYLINE’s
Copyright.
27. An example of decorative etched architectural glass that incorporates
unauthorized copies of SKYLINE’s Copyright and is imported and/or marketed, offered for sale,
and/or sold by McGRORY is designated by McGRORY as the MII-247.
28. A true and accurate copy of a photograph of the MII-247 next to the Sateen is
attached hereto and incorporated herein as Exhibit B.
29. McGRORY is not now nor has it ever been an authorized dealer for, or been
authorized by SKYLINE to import, copy, offer for sale, sell, or distribute, articles with designs
protected by SKYLINE’s Copyright.
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30. OmniDecor is not now nor has it ever been an authorized dealer for, or been
authorized by SKYLINE to copy, offer for sale, sell, or distribute, articles with designs protected
by SKYLINE’s Copyright or to import them to the United States.
31. SKYLINE’s Copyright is well-known to customers and other manufacturers and
distributers of decorative etched architectural glass, nationally and internationally, including, on
investigation and information, McGRORY and OmniDecor.
32. Since 2003, SKYLINE has widely disseminated and publicized the Sateen,
including via: interstate and international sales of the Sateen; interstate and international
advertisement of the Sateen on its web site, in trade publications, and in print advertisements;
displaying samples of the Sateen at trade shows; placement of Sateen samples in publicly-
accessible architecture and design libraries that can be and are consulted by other manufacturers
and distributors of decorative etched architectural glass; distributing samples of the Sateen to
architecture and design firms, general contractors, and glass glazing subcontractors; and
interactions with and exposing samples of the Sateen to manufacturers and distributors of
decorative etched architectural glass such as during competitive bidding on contracts.
33. SKYLINE has placed a notice of copyright on pictorial images of etched
architectural glass bearing the Sateen that it has published.
34. Upon information and belief, McGRORY has known of and had access to the
Sateen at least in part as a result of SKYLINE’s widespread dissemination and publication
thereof.
35. Upon information and belief, employees and/or other agents of McGRORY, on
behalf of McGRORY, have attended trade shows at which SKYLINE has displayed samples of
the Sateen.
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36. Upon information and belief, employees and/or other agents of McGRORY, on
behalf of McGRORY, have visited publicly-accessible architecture and design libraries in which
SKYLINE had placed and maintained samples of the Sateen.
37. Upon information and belief, OmniDecor has known of and had access to the
Sateen at least in part as a result of SKYLINE’s widespread dissemination and publication
thereof.
38. Upon information and belief, employees and/or other agents of OmniDecor, on
behalf of OmniDecor, have attended trade shows at which SKYLINE has displayed samples of
the Sateen.
39. Upon information and belief, employees and/or other agents of OmniDecor, on
behalf of OmniDecor, have visited publicly-accessible architecture and design libraries in which
SKYLINE had placed and maintained samples of the Sateen.
40. General public access to the Sateen also results from the incorporation of
decorative etched architectural glass bearing the Sateen in buildings and other places that are
viewable by the public.
41. Employees of OmniDecor have visited SKYLINE’s headquarters in the past and
thereby had access to the Sateen.
42. In April 2007, upon learning that McGRORY may have been infringing on its
copyright, SKYLINE sent a letter to McGRORY informing it of the existence of the SKYLINE
Copyright and requesting that McGRORY cease and desist from any infringing activity, and
enclosed a copy of the SKYLINE’s Copyright with the letter.
43. In J une 2007, McGRORY stated by letter that it did not identify any of its designs
that were substantially similar to the SKYLINE Copyright.
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1451434
44. In 2012, SKYLINE again learned that McGRORY was continuing to wrongfully
distribute products incorporating unauthorized copies of the SKYLINE Copyright, including by
offering for sale and/or selling the MII-247.
45. The MII-247 is so similar to the Sateen and the work protected by the SKYLINE
Copyright that the design of the MII-247 could not have been created independently of
knowledge of the Sateen.
46. The MII-247 is substantially similar to the ornamental pattern of lines of varying
thicknesses and distances from each other which constitute original aspects of the Sateen and the
work protected by SKYLINE’s Copyright, and which were selected and created entirely on the
basis of artistic judgment and to serve purely aesthetic purposes. See Exhibit B.
47. The substantial similarity of the MII-247 to the Sateen is even more striking when
the image of the MII-247 shown in Exhibit B is reduced by approximately 30% and compared to
the image of the Sateen shown in Exhibit B.
48. SKYLINE previously filed complaints in this Court against two other parties who
are not presently parties to this action alleging that they infringed SKYLINE’s Copyright. Upon
investigation and information, at least one of those parties purchased the infringing etched
architectural glass from OmniDecor. The disputes underlying each of those actions were
amicably settled by the parties thereto and the actions were consequently dismissed on
stipulation.
FI RST CAUSE OF ACTI ON:
I NFRI NGEMENT OF U.S. COPYRI GHT REGI STRATI ON VA 1-364-683
49. Plaintiff SKYLINE realleges each and every allegation set forth in paragraphs 1
through 48 above, and incorporates them herein by reference.
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50. Defendant McGRORY has infringed the SKYLINE Copyright by, at least,
importing, offering for sale, and/or selling decorative etched architectural glass, in the United
States under the designation MII-247 which incorporates the two-dimensional artwork protected
by the SKYLINE Copyright.
51. Defendant McGRORY will continue such infringement unless enjoined by this
Court.
52. As a result of McGRORY’s acts, SKYLINE has been damaged and will continue
to be damaged irreparably.
53. McGRORY’s infringement of the SKYLINE Copyright has been knowing and
willful.
54. McGRORY’s infringement of the SKYLINE Copyright has damaged SKYLINE
in an amount that is unknown and cannot at the present time be fully ascertained.
DEMAND FOR A J URY TRI AL
SKYLINE hereby demands a jury trial.
PRAYER FOR RELI EF
WHEREFORE, Plaintiff SKYLINE, respectfully prays this Honorable Court for an entry
of judgment ordering:
(A) A preliminary and permanent injunction against Defendant MCGRORY,
parent companies, subsidiaries, related companies, and all persons acting in
concert or participation with them, or persons acting or purporting to act on
their behalf, including, but not limited to their officers, directors, partners,
owners, agents, representatives, employees, attorneys, successors, and assigns,
and any and all persons acting in concert or privity with them, from infringing
SKYLINE’s copyright as provided in 17 U.S.C. § 502;
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1451434
(B) MCGRORY, its agents, employees, successors and assigns, be ordered to
deliver under oath, for impoundment during the pendency of this action, all
articles alleged to infringe SKYLINE’s copyrighted architectural glass etching
design called the Sateen;
(C) MCGRORY, its agents, employees, successors and assigns to deliver under
oath for destruction all infringing blueprints, photocopies, plans and other
means for making such infringing copies;
(D) A finding that MCGRORY has infringed SKYLINE’s Copyright;
(E) An award to SKYLINE of statutory damages pursuant to 17 U.S.C. § 504(c)
for each and every act of infringement of SKYLINE’s Copyright in an amount
to be set by the Court, including but not limited to, attorneys’ fees, and a
finding that the infringement by Defendant was committed willfully and
awarding SKYLINE a sum of $150,000 for each willful infringement, as
provided under 17 U.S.C. §504(c)(2), or in the alternative, an accounting of
damages resulting from the infringement of the SKYLINE’s Copyright by
MCGRORY as provided for in 17 U.S.C. §504(b), among other relief;
(F) An award to SKYLINE of interest on all damages incurred, including any
applicable prejudgment and/or post-judgment interest;
(G) Such other and further relief against Defendant McGRORY in favor of
SKYLINE as this Court deems fair and just.
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Date: December 20, 2012




Of Counsel:

Susan E. Farley, Esq. (pro hac vice to come)
HESLIN ROTHENBERG FARLEY
& MESITI P.C.
5 Columbia Circle
Albany, New York 12203
Telephone: (518) 452-5600
Facsimile: (518) 452-5579
E-mail: sef@hrfmlaw.com
Respectfully submitted,

SKYLI NE DESI GN, I NC.

By: /s/ George R. Dougherty
One of Its Attorneys

George R. Dougherty (#6196845)
GRIPPO & ELDEN LLC
111 South Wacker Drive
Chicago, IL 60606
Telephone: (312) 704-7700
Facsimile: (312) 558-1195
Email: gdougherty@grippoelden.com

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EXHIBIT 2
(Dkt. No. 1-1 – Complaint Exhibit A)


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Certificate of RegistratiG
1
This Certificate issued under the seal of the Copyright
Office in accordance with title 17, United States Code,
attests that registration has been made for the work
identified below. The information on this certificate has
been made a part Copyright Office records.
of Am"'"
Fo:rmVA
Jlar II Wari: oflht Vl&uai Alii
UNITED STATES CairYIIJGHT OFFICE
VA 1-364-683
I ftiC\liiOII'INIUI1I
09
PuiJIII:afloo liS Ill CoatrfillltiOO If this wmll Will published 1111 B CIII1IJibullom 10 a perbiiaJ, aerial, 01' collec:Uom, obout the callecdYII worlllo which lila
COIIIributloll appearecL Tltla Ill Colledlw Wort V •
Weaves + Textures
If publlahed In a periodical or asrlal v.a- v

l'<llldarV
Volome 45, Issue S
lmiaDIItaV
May2003
NAME OF AlffliOJI 'V' DATES OF BIRTH AND DEATH
-
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· · Year Born "' . Year Died "'
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Wu lids to tile 9ftllt 11 A=:'a Natimai!ty or DomlcBII Wa 'Ibis Author's lo the Wori!.
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Skyline Design, Inc. .
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*Amended by C.O. per authority of Steve
Maynard via e-mail dated 7/17/06. · .
EXAMINED BY
CHECKED BY
DO NOT WRITE ABOV.E THIS UN E. IF YOU NEED MO!i'IE SPACE, USE A SEPARATE CONTINUATION SHEET.
P:U:VIOUS REG!STRA1'ION H115 registilltitm rt1r mia wale, ar for lill emtlei wmion of lhiB worlr, alroudy been made In lh<l Oflial7
D Iii! No l!!llllwer iB "Yr:a," <lily i:1 !IIIOih# regislrnlim being llCI!ght? (O.eck appropria!e box.) v
m. D 1'hll is !be me publi:!hed edllkm of a wor1t prev!cra:lty iD ll!lpqbibbed fmm.
II. D 1'hJJ is lbe fimtappl!ca!ion liUbnllled by this lllllht1ras eQpyright claimaut.
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DERIVA liVE WORK OR COMPiLATION Complete bolh space 6a .00 6b fw e daivadve wmk; cmly 6b form r:cmpihulon.
1!. Molcria.l Jde!!dly llily pn:crl1dug work or wcri:D llmllbls worlt b based <m V .
FOR
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b
-------------------------------------------------------a
Steven A. Maynard
Conduit Technology Partners, LLC
300 West Grand#412
Chicago, IL 60610
( 312} 203-2898. Fallll!lll:Ml8 ( 312 )661-0197
Email smaynard@conduittech.com
·check only one II> Doth"!" copyright clalman! ·
Downer af exclusive Iight(s
·b
CERTIFICATION'" . I, the underB!gned, hereby certify !hat I IIDI the {D author
!fauthorlmhgentof aufbor, Skyline Design. Inc.
Narml ol OIJhlf or o!hill" O!lllYII9Ill dMnanl, llf lllllllOr oll!lduolvmrlj;!ol(e) A
of the work identified in thJs appl!calion and !hat £he stalements made by me In this app!ication are correct to the best of my lmowledge.
X
Olrtlfleem
will be
mailed in
window
emt$1ope
to thle
address:
wl!h the
a date of publica lion In space 3, do not sign and submit it before ll1!!l dali!. ·
. Dale March 30, 2006
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Under the law,
the "author" of
a "work made
for hire" is
generally the
employer, not
the employee
(soe Instruc-
tions). For any
part of this
work that was
"made for hire"
check "Yes" In
the space
provided, give
the employer
(or other
parson for
whom the work
was prepared)
as "Author" of
thai part, ami
leave the
space for dates
ot birth and
doath blank.
See instructions
before completing
this space.
Form VA
For a Work of the Visunl Arts
UNITED STATES COPYRIGHT OFFICE
REGISTRATION NUMBER
VA VAU
EFFECTIVE DATE OF REGISTRATION
DO NOT WRITE ABOVE THIS UNE. IF YOU NEED MORE USE A SEPARATE CONTINUATION SHEET.
Tille or This Work V NATURE OF THIS WORK V See instructions
Sateen
Decorative Architectural Glass Etching
Previous or Allcrnativc Titles 'if
Publica lion as a Contribution If this work was published us a contribution to a periodical, serial, or colleclion, give information about the collective work in which the
contriblllion appeared. Title of Colleclivc Work V
Weaves +Textures
Number 'I? If published in n periodical or serial give: Volume 'if
Contract Volume 45, Issue 5 16
Skyline Design, Inc.
Author's Nalionaliiy or IJomicilc
Name ol Country
Was This Author's Contribution to tile Work Was Ibis contribution lo tile work n
"'fork made for hire''?
I"J Yes
D No
oR{Cilizen or _U=S::.A.:._ _________ _
Domiciled in
D Y
4
,
5
"" No II tho answer to either
Anonymous? "-' w of theso qoostions is
Pseudonymous1 D Yes E1 No
Nnlure of Autliorsb.ip Check appropriate box(es).See instructions
0 3-Dimensional sculpture D Map
El 2-Dimensional artwork D Photograph
D Reproduction of work of art D Jewelry design
Name of Author V
D Technical drawing
D Text
1!1 Architectural work
Dates or l!lirth nod Death
Year Bam V Year Died V
Wa.• Ibis lo tile work a
"work made ror hire"'?
Author's Nationality or IJomicilc
Name ol CotmliJI
Was This Author's Contribution to the Work
DYes Citizen or
DNo Domiciled in
Nature of Authorship Check appropriate box(es).See instructions
D 3-Dimensional sculpture D Map
D 2-Dimensional artwork D Photograph
D Reproduction of work of art D Jewelry design
Anonymous?
Pseudonymous?
D Technical drawing
DText
D Architeclural work
Year in Whim Creation of This Work W!IS Daie an<il N2tion of Fi,..lll"ublicalieu oi'Tiiis ll"arllw!ar Work
DYes
DYes
Cmnpleled This lnlom>alioo
2003 Year
Cl!mi>!alrl illis fniOOlllllllon
miL if illills wmi<
Month May Day ----
lias boon published. United States of America
COPYRIGHT CLIHMANT(S) Name and address must be given even if !he claimant is the same as the
author given in space 2. '?
DNo
If the answer to either
ol thesa quastians is
D No "Yes," see delailed
instructions.
Year 2003
Nation
Skyline Design, Inc.
1240 North Homan ONE DEPOSIT RECEIVED
Chicago, IL 60651 "'o ---------'------
TWO DEPOSITS RECEIVED
w
(.)
TrailSfer If !he claimant(s) named here in Sp;lce4 is (are) different from !he aull"n(s) named in Sp;lce 2, give a
brief statement or how the claimant(s) obtnined ownership of !he copyright. V
MORE ON BACK .,_ • Complete all applicable spaces (numbers 5-9) on tha reverse side of this page.
• Sea detailed lnslruclions. • Sign the form at line B.

co
DO NOT WRITE HERE
Page 1 of ___ pages
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DO NOT WRITE ABOVE THIS LINE. IF YOU NEED MORE

•• • ..
EXAMINED BY
CHECKED BY
D
CORRESPONDENCE
Yes
USE A SEPARATE CONTINUATION SHEET.
Has registralion for this wotk, m: for an earlier '-ersion of this wotk, already been made in the Copyright Office?
DYes Gl No If your allsweris "Yes." why is onolher rcgistr.>rionbeingsougbt7 (Cbedcappropriate box.) W
a. D This is dtc rust published edition of a work previously registered in unpublished form.
h. D This is !he rust application submiued by !his author as copyright claimanL
c. D This is a changed version of dte work, as shown by space 6 on this applicatioa.
If your answer is uYcs,n give: Previous Registration Number V Y car o£ Registration '<'
Complete bolh space 6a and 6b for a derivative work; complete ooly 6h for a compilation.
a. Preexisting 1\-f:::alerial Identify any preexisting work or works that tills work is based on or incorporates* 'V
b. Malerinl Added lo This Work Give a brief, general slntement of the material that has been added to !his work and in which copyright is
DEPOSIT ACCOUNT Ifthe registration fee is 10 be charged to a IJ<.'P"5it Account estnblismd in tho Copyrigb< Office, give name aod number of Account.
Name 'f A<eoona Number '<'
--------------------- _____________________ ,,, ..'.
CORRESPONDENCE Give name aod address to which correspondence about this application should be sent. Nnmc/Address/Apt/City/Sinte/ZIP 'f
Steven A. Maynard
Conduit Technology Partners, LLC
Area coda and daytime telephone number ( 312) 203- 2898
Email smaynard@conduittech.com
CERTIFICATION* I. the undersigned, hereby certify that I am the
300 West Grand# 412
Chicago, IL 60610
Fax number
-L--k
1
D olher copyright claimant
( 312) 661-0197
u"'" on y one II>
Downer of exclusive righl<fh • .
FORM VA
FOR
COPYRIGHT
OFFICE
USE
ONLY
instructions
before completing
this space.
{
Dauthor
· agent of au or, Skylme Design, Inc.
Name of author or other copyright daimanl, or owner of axdusive righl(s} A
of the work identified in lhis application and that lhe statements made by me in this application are correct to lhe best of my knowledge.
Typed
X
Certificate
will be
mailed in
window
envelope
to this
address:
Namev
Steven A. Maynaro
Nt!mbariStreet/AIJt v
300 West Grand# 412
City/Sia!e/ZIP 'fl
Chicago, IL 60610
n gives a date of publication in space 3, do not sign and submit it before that date.
Date March 30, 2006
Rev: Augusl2003--30,000 Web Rev: June 2002 0 Prtnted on recycled paper U.S. Government Printing Office: 2003-496-605/60,029
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4/13/06 II :41
Skyline Design
E\RGHITEGTURI\l GlASS ! ART SERVICES 1 CODIVUIMICAST 1 ABOUT SKYLINE 1 BECOME A REP 1 CONTACT US
Portfolio G Collection FOHlglas laurinda Spear ARGH!glas Classic FOSilglas Vitracolor Weaves +Textures
http://skydesign.com/basel Ogreybar.html
Pagel of
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>kyline Design 4/13/06 12:30
lH OtSIGiu
ARCHITECTURAl GLASS 1 ART SERVICES 1 CODAIU.IMICAST 1 ABOUT SKYliNE 1 BECOME A REP CONTACT US
1 ~ ' 8 8 278 46E.o
Portfolio G Collection FOTOglas laurinda Spear ARCHiglas Classic FOSilgl:as Vitracolor Weaves +Textures
http:l/skydesign.com/haselOgreybar.htJnl Page I of
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ARCHiTECTURAL GLASS 1 ART SERVICES 1 CODA!li.IMICAST 1 ABOUT SKYLINE 1 BECOME A REP 1 CONTACT US
Portfolio G Collection FOTOgias Laurinda Spear ARGHiglas Classic FOSilgias Vitracolor Weaves +Textures
ltlp://skydesign.comfbase I Ogreybar.htm!
Page I of!
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4/13/06 ll :s:
Skyline Design
ARCHITECTURAL GLASS 1 ART SERVICES 1 CODAILIUMICAST ! ABOUT SKYLINE 1 BECOME A REP 1 CONTACT US
Portfolio G Collection FOH!glas Laurinda SpBar ARGH!glas Classic H!Silglas Vitracolor Weaves +Textures
http://skydesign.com/base 1 Ogreybar.html
Page I of.]
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f.------ 59.5"----
120"
SKYLINE DESIGN- WEAVES+ TEXTURES- SATEEN
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EXHIBIT 3
(Dkt. No. 23 – McGrory Glass Inc.’s Amended Answer and Affirmative Defenses)


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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION


SKYLINE DESIGN, INC.,
Plaintiff,

v.

McGRORY GLASS, INC.,
Defendant.

)
)
)
)
)
)
)
)
)


Case No. 12-cv-10198

Honorable Judge Edmond E. Chang

AMENDED ANSWER AND AFFIRMATIVE DEFENSES

For its amended answer to the Complaint for Copyright Infringement brought by Plaintiff
Skyline Design, Inc. (“Skyline”), Defendant McGrory Glass, Inc. (“McGrory”), by and through
its attorneys, states as follows:
NATURE OF THE ACTION
1. Defendant MCGRORY GLASS, INC. (“MCGRORY”) has infringed and is
continuing to infringe SKYLINE’s copyright with knowledge that the architectural glass bearing
decorative etchings that they are importing, distributing, offering for sale, and selling infringe
SKYLINE’s copyright in violation of 17 U.S.C. § 501.
Answer: McGrory admits only that it purchases, distributes, offers for sale and sells
architectural glass for use as interior and exterior walls in buildings, but expressly denies that it
has violated the alleged copyright of Skyline.
2. This suit seeks to redress and enjoin the willful, infringing activities of
MCGRORY.
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Answer: McGrory admits only that Skyline has filed this Complaint alleging
copyright infringement against McGrory seeking injunctive and monetary relief. McGrory
otherwise denies the allegations in Paragraph 2 of the Complaint.
THE PARTIES
3. SKYLINE is a corporation organized under the laws of the State of Illinois having
its principal place of business at 1240 North Homan Avenue, Chicago, Illinois 60651.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 3 of the Complaint, and on that basis denies the
allegations therein.
4. SKYLINE designs, manufactures, and sells different types of glass, including
architectural glass that bears any of various original and aesthetic etched designs created by
SKYLINE.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 4 of the Complaint, and on that basis denies the
allegations therein.
5. SKYLINE expends considerable resources to develop and create its attractive and
distinctive designs, for which it is known internationally.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 5 of the Complaint, and on that basis denies the
allegations therein.
6. SKYLINE also expends considerable resources protecting the intellectual
property rights it has in its designs, such as by routinely registering the non-functional and
artistic elements of its decorative glass designs with the United States Copyright Office.
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Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 6 of the Complaint, and on that basis denies the
allegations therein.
7. Upon investigation and information, McGRORY is a corporation organized and
existing under the laws of the State of New Jersey, having a principal place of business at
1400 Grandview Avenue, Paulsboro, New Jersey 08066.
Answer: Admitted.
8. McGRORY is also in the business of selling architectural glass.
Answer: Admitted.
9. McGRORY is doing business in this State and District.
Answer: Admitted.
JURISDICTION AND VENUE
10. This is an action for copyright infringement arising under the copyright laws of
the United States as set forth in Title 17 of the United States Code Section 501, et seq.
Answer: McGrory admits only that this action purports to be one for copyright
infringement under the Copyright Act.
11. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).
Answer: Admitted.
12. Venue is proper in the Northern District of Illinois under 28 U.S.C. §§ 1391(b),
(c), and 1400(a).
Answer: Admitted.
13. This Court has personal jurisdiction over defendant McGRORY consistent with
the principles underlying the U.S. Constitution.
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Answer: Admitted.
14. Upon investigation and information, McGRORY is doing business in this State
and District, such as continuously and persistently conducting marketing and sales activities
herein, including such activities conducted by its sales representatives who are specifically
responsible for and regularly perform such activities in this State and District on behalf, and at
the specific direction, of McGRORY.
Answer: McGrory admits only that venue is proper in this District. McGrory
specifically denies that it has violated the alleged copyright of Skyline.
15. Upon information and belief, McGRORY markets or has marketed, offers for sale
or has offered for sale, or sells or has sold products in this State and District that infringe on
SKYLINE’S copyrights.
Answer: McGrory admits only that it markets and sells products in this State and
District. McGrory specifically denies that it has violated the alleged copyright of Skyline.
BACKGROUND
Skyline’s Alleged Copyright
16. In 2003, SKYLINE created an original decorative etching design for architectural
glass, which it designated “the Sateen.”
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 16 of the Complaint, and on that basis denies the
allegations therein.
17. On May 9, 2006, U.S. Copyright Registration No. VA 1-364-683 (“SKYLINE’s
Copyright”) registered to SKYLINE for the Sateen. A true and correct copy of the valid
Certificate of Registration of SKYLINE’s Copyright is attached hereto and incorporated herein
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as Exhibit A.
Answer: McGrory admits only that a certificate of registration for a two-
dimensional work of visual art entitled “Sateen” issued from the U.S. Copyright Office as
Registration No. VA 1-364-683 dated May 9, 2006, and that a photocopy of such certificate is
attached to the Complaint as part of Exhibit A. McGrory is without knowledge or information
sufficient to form a belief as to the truth of the remaining allegations in Paragraph 17 of the
Complaint, and on that basis denies the same.
18. A deposit copy of the Sateen was filed with the U. S. Copyright Office and is
included in Exhibit A.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 18 of the Complaint, and on that basis denies the
allegations therein.
19. Several different magnifications of the Sateen were included in the deposit copy
filed with the U.S. Copyright Office. See Exhibit A.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 19 of the Complaint, and on that basis denies the
allegations therein.
20. The patterned, ornamental lines of varying thicknesses and distances from each
other constitute original aspects of the work protected by SKYLINE’s Copyright and were
selected, arranged, and created entirely on the basis of artistic judgment and to serve purely
aesthetic purposes.
Answer: McGrory expressly denies that the alleged copyrighted design etched on
architectural glass panels serves a purely aesthetic purpose. McGrory is without knowledge or
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6
information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 20
of the Complaint, and on that basis denies the allegations.
21. SKYLINE is the sole and exclusive owner of all right, title, and interest in and to
the SKYLINE Copyright and the work protected thereby.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 21 of the Complaint, and on that basis denies the
allegations therein.
22. SKYLINE sells glass incorporating the decorative design protected by
SKYLINE’s Copyright and under the designation Sateen.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 22 of the Complaint, and on that basis denies the
allegations therein.
McGrory’s Allegedly I nfringing Activities
23. Upon investigation and information, McGRORY imports decorative etched
architectural glass that incorporates unauthorized copies of SKYLINE’s Copyright.
Answer: McGrory admits only that it purchases architectural glass from
OmniDecor S.p.A., which is located in Italy. McGrory expressly denies that any architectural
glass purchased by McGrory from OmniDecor S.p.A. infringes Skyline’s alleged copyright.
24. Upon investigation and information, McGRORY imports decorative etched
architectural glass from and/or that is made by OmniDecor S.p.A. (“OmniDecor”), a glass
company located in Erba, Italy.
Answer: McGrory admits only that it purchases architectural glass from
OmniDécor S.p.A. displaying a pattern of parallel lines under the OmniDecor designations
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“Rain,” which is etched on one side of the glass panel and “BiRain,” which is etched on both
sides of the glass panel. See Exhibit 1,
1
a true and correct color copy of a photograph of “Rain”;
Exhibit 2, a true and correct color copy of a photograph of “BiRain,” which McGrory designates
as “MII-247.” McGrory denies all remaining allegations in Paragraph 24.
25. Upon investigation and information, etched architectural glass imported by
McGRORY from and/or that is made by OmniDecor incorporates unauthorized copies of
SKYLINE’s Copyright.
Answer: McGrory denies all allegations in Paragraph 25.
26. Upon information and belief, within this State and District, McGRORY has
marketed, offered for sale, and/or sold, and continues to market, offer for sale, and/or sell,
decorative etched architectural glass that incorporates unauthorized copies of SKYLINE’s
Copyright.
Answer: McGrory denies all allegations in Paragraph 26.
27. An example of decorative etched architectural glass that incorporates
unauthorized copies of SKYLINE’s Copyright and is imported and/or marketed, offered for sale,
and/or sold by McGRORY is designated by McGRORY as the MII-247.
Answer: McGrory admits only that it markets and sells “BiRain” architectural glass
supplied by OmniDecor S.p.A. under the McGrory designation “MII-247.” See Exhibit 2.
McGrory denies all other allegations in Paragraph 27.
28. A true and accurate copy of a photograph of the MII-247 next to the
Sateen is attached hereto and incorporated herein as Exhibit B.

1
See Declaration of Emily C. Johnson for Exhibits 1–8 to McGrory’s Answer and
Affirmative Defenses filed concurrently herewith.
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Answer: McGrory admits only that Exhibit B to the Complaint purports to be a
photocopy of a small sample of accused product adjacent to a small sample of architectural glass
etched with the alleged copyrighted design. McGrory is without knowledge or information
sufficient to form a belief as to the truth of the allegations of Paragraph 28 of the Complaint, and
on that basis denies the same.
29. McGRORY is not now nor has it ever been an authorized dealer for, or been
authorized by SKYLINE to import, copy, offer for sale, sell, or distribute, articles with designs
protected by SKYLINE’s Copyright.
Answer: Admitted.
30. OmniDecor is not now nor has it ever been an authorized dealer for, or been
authorized by SKYLINE to copy, offer for sale, sell, or distribute, articles with designs protected
by SKYLINE’s Copyright or to import them to the United States.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 30 of the Complaint, and on that basis denies the
allegations therein.
31. SKYLINE’s Copyright is well-known to customers and other manufacturers and
distributers of decorative etched architectural glass, nationally and internationally, including, on
investigation and information, McGRORY and OmniDecor.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 31 of the Complaint, and on that basis denies the
allegations therein.
32. Since 2003, SKYLINE has widely disseminated and publicized the Sateen,
including via: interstate and international sales of the Sateen; interstate and international
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9
advertisement of the Sateen on its web site, in trade publications, and in print advertisements;
displaying samples of the Sateen at trade shows; placement of Sateen samples in publicly
accessible architecture and design libraries that can be and are consulted by other manufacturers
and distributors of decorative etched architectural glass; distributing samples of the Sateen to
architecture and design firms, general contractors, and glass glazing subcontractors; and
interactions with and exposing samples of the Sateen to manufacturers and distributors of
decorative etched architectural glass such as during competitive bidding on contracts.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 32 of the Complaint, and on that basis denies the
allegations therein.
33. SKYLINE has placed a notice of copyright on pictorial images of etched
architectural glass bearing the Sateen that it has published.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 33 of the Complaint, and on that basis denies the
allegations therein.
34. Upon information and belief, McGRORY has known of and had access to the
Sateen at least in part as a result of SKYLINE’s widespread dissemination and publication
thereof.
Answer: McGrory admits only that it received in April, 2007 a letter from Skyline’s
attorneys enclosing a purported photocopy of U.S. Copyright Registration No. VA 1-364-683.
McGrory further admits that, on June 7, 2007, in response to McGrory’s request for a sample of
the alleged copyrighted work, Skyline provided McGrory a sample of “Sateen” architectural
glass etched on both sides. McGrory is without knowledge or information sufficient to form a
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10
belief as to the truth of the remaining allegations in Paragraph 34 of the Complaint, and on that
basis denies the allegations.
35. Upon information and belief, employees and/or other agents of McGRORY, on
behalf of McGRORY, have attended trade shows at which SKYLINE has displayed samples of
the Sateen.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 35 of the Complaint, and on that basis denies the
allegations therein.
36. Upon information and belief, employees and/or other agents of McGRORY, on
behalf of McGRORY, have visited publicly-accessible architecture and design libraries in which
SKYLINE had placed and maintained samples of the Sateen.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 36 of the Complaint, and on that basis denies the
allegations therein.
37. Upon information and belief, OmniDecor has known of and had access to the
Sateen at least in part as a result of SKYLINE’s widespread dissemination and publication
thereof.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 37 of the Complaint, and on that basis denies the
allegations therein.
38. Upon information and belief, employees and/or other agents of OmniDecor, on
behalf of OmniDecor, have attended trade shows at which SKYLINE has displayed samples of
the Sateen.
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Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 38 of the Complaint, and on that basis denies the
allegations therein.
39. Upon information and belief, employees and/or other agents of OmniDecor, on
behalf of OmniDecor, have visited publicly-accessible architecture and design libraries in which
SKYLINE had placed and maintained samples of the Sateen.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the rest of the allegations in Paragraph 39 of the Complaint, and on that basis
denies the allegations therein.
40. General public access to the Sateen also results from the incorporation of
decorative etched architectural glass bearing the Sateen in buildings and other places that are
viewable by the public.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the rest of the allegations in Paragraph 40 of the Complaint, and on that basis
denies the allegations therein.
41. Employees of OmniDecor have visited SKYLINE’s headquarters in the past and
thereby had access to the Sateen.
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 41 of the Complaint, and on that basis denies the
allegations therein.
42. In April 2007, upon learning that McGRORY may have been infringing on its
copyright, SKYLINE sent a letter to McGRORY informing it of the existence of the SKYLINE
Copyright and requesting that McGRORY cease and desist from any infringing activity, and
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12
enclosed a copy of the SKYLINE’s Copyright with the letter.
Answer: McGrory admits only that it received a letter from Skyline’s attorneys in
April 2007 alleging infringement of U.S. Copyright Registration No. VA 1-364-683, enclosing a
purported photocopy of such registration, and demanding McGrory to cease and desist any
infringement thereof. McGrory expressly denies that it has infringed Skyline’s alleged
copyright. McGrory is without knowledge or information sufficient to form a belief as to the
truth of the remaining allegations in Paragraph 42 of the Complaint, and on that basis denies the
allegations.
43. In June 2007, McGRORY stated by letter that it did not identify any of its designs
that were substantially similar to the SKYLINE Copyright.
Answer: McGrory admits only that after receiving a sample of the alleged
copyrighted “Sateen” architectural glass from Skyline’s counsel, McGrory’s counsel informed
Skyline by letter dated June 28, 2007 that McGrory had reviewed its product line and did not
identify any of its products that were substantially similar to the Sateen design, but McGrory’s
counsel invited Skyline’s counsel to provide additional information about Skyline’s basis for its
infringement allegation; however, Skyline took no action until August 28, 2012, when Skyline’s
new counsel sent a second demand letter to McGrory.
44. In 2012, SKYLINE again learned that McGRORY was continuing to wrongfully
distribute products incorporating unauthorized copies of the SKYLINE Copyright, including by
offering for sale and/or selling the MII-247.
Answer: McGrory expressly denies that it has infringed Skyline’s alleged
copyright. McGrory is without knowledge or information sufficient to form a belief as to the
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13
truth of the remaining allegations in Paragraph 44 of the Complaint, and on that basis denies the
allegations.
45. The MII-247 is so similar to the Sateen and the work protected by the SKYLINE
Copyright that the design of the MII-247 could not have been created independently of
knowledge of the Sateen.
Answer: McGrory denies all allegations in Paragraph 45.
46. The MII-247 is substantially similar to the ornamental pattern of lines of varying
thicknesses and distances from each other which constitute original aspects of the Sateen and the
work protected by SKYLINE’s Copyright, and which were selected and created entirely on the
basis of artistic judgment and to serve purely aesthetic purposes. See Exhibit B.
Answer: McGrory denies all allegations in Paragraph 46.
47. The substantial similarity of the MII-247 to the Sateen is even more striking when
the image of the MII-247 shown in Exhibit B is reduced by approximately 30% and compared to
the image of the Sateen shown in Exhibit B.
Answer: McGrory denies all allegations in Paragraph 47.
48. SKYLINE previously filed complaints in this Court against two other parties who
are not presently parties to this action alleging that they infringed SKYLINE’s Copyright. Upon
investigation and information, at least one of those parties purchased the infringing etched
architectural glass from OmniDecor. The disputes underlying each of those actions were
amicably settled by the parties thereto and the actions were consequently dismissed on
stipulation.
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14
Answer: McGrory is without knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 48 of the Complaint, and on that basis denies the
allegations.
FIRST CAUSE OF ACTION:
INFRINGEMENT OF U.S. COPYRIGHT REGISTRATION VA 1-364-683

49. Plaintiff SKYLINE realleges each and every allegation set forth in paragraphs 1
through 48 above, and incorporates them herein by reference.
Answer: McGrory’s answers to the allegations of Paragraphs 1–48 of the
Complaint are restated and fully incorporated herein.
50. Defendant McGRORY has infringed the SKYLINE Copyright by, at least,
importing, offering for sale, and/or selling decorative etched architectural glass, in the United
States under the designation MII-247 which incorporates the two-dimensional artwork protected
by the SKYLINE Copyright.
Answer: McGrory denies all allegations in Paragraph 50.
51. Defendant McGRORY will continue such infringement unless enjoined by this
Court.
Answer: McGrory denies all allegations in Paragraph 51.
52. As a result of McGRORY’s acts, SKYLINE has been damaged and will continue
to be damaged irreparably.
Answer: McGrory denies all allegations in Paragraph 52.
53. McGRORY’s infringement of the SKYLINE Copyright has been knowing and
willful.
Answer: McGrory denies all allegations in Paragraph 53.
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15
54. McGRORY’s infringement of the SKYLINE Copyright has damaged SKYLINE
in an amount that is unknown and cannot at the present time be fully ascertained.
Answer: McGrory denies all allegations in Paragraph 54.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Skyline has failed to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
Any appropriation of Skyline’s alleged copyrighted design is, at most, de minimis, as the
ordinary observer would not recognize any appropriation due to the lack of substantial similarity
between the protectable elements of the asserted “Sateen” design and the accused product. Compare
Exhibit 1, a true and correct color copy of a photograph of “Rain” etched on one side, and Exhibit 2,
a true and correct color copy of a photograph of “MII-247” etched on two sides, with Exhibit 3, a
true and correct color copy of a photograph of Skyline’s “Sateen” etched on two sides; also compare
Exhibit 4, true and correct color copies of photographs of Skyline’s “Sateen,” “Rain,” and MII-247
“BiRain”; Exhibit 5, a true and correct graphical depiction of Skyline’s “Sateen” and McGrory’s
MII-247 “BiRain.”
THIRD AFFIRMATIVE DEFENSE

McGrory is a bona fide purchaser of the accused product from OmniDecor S.p.A.
If McGrory infringed any copyright right of Skyline, McGrory did so in good faith and with innocent
intent.
FOURTH AFFIRMATIVE DEFENSE
Skyline’s claim is barred because Skyline’s alleged copyright is invalid and/or otherwise
unenforceable. Skyline’s asserted “Sateen” architectural glass design is a functional industrial design
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16
upon which the architectural glass relies for light diffusion and privacy screening, and thus is not
subject to copyright protection. See Exhibit 6, a true and correct copy of a webpage printed from
Skyline Design, Inc.’s website, available at http://www.skydesign.com/products/glass
(last visited Feb. 1, 2013); Exhibit 7, a true and correct copy of a webpage
printed from Skyline Design, Inc.’s website, available at http://www.skydesign.com/
sites/default/files/AboutGlass_TechnicalSpecifications.pdf (last visited Jan. 30, 2013).
FIFTH AFFIRMATIVE DEFENSE
Skyline’s asserted copyright relates to “Sateen,” a design from Skyline’s “Weaves &
Textures” design collection inspired by “everyday fabrics used by indigenous peoples from Mexico
and Africa.” Skyline’s copyright claim in “Sateen,” based on “sateen,” a generic fabric design
recognized by Skyline as a “timeless classic,” is barred by the doctrine of merger. See Exhibit 8,
a true and correct copy of a webpage printed from Skyline Design’s website, available at
http://www.skydesign.com/products/glass/weaves-textures (last visited Jan. 30, 2013).
SIXTH AFFIRMATIVE DEFENSE
Skyline claim is barred because Skyline appropriated the design of “Sateen” from “everyday
fabrics used by indigenous peoples from Mexico and Africa,” thus Skyline is not the owner
of any copyright right in the asserted “Sateen” design, and the design is not original to Skyline.
See Exhibit 8.
SEVENTH AFFIRMATIVE DEFENSE
Skyline’s claim is barred by waiver and/or acquiescence.
EIGHTH AFFIRMATIVE DEFENSE
Skyline’s request for injunctive relief is barred because there exists no immediate and
irreparable harm.
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17
NINTH AFFIRMATIVE DEFENSE
Skyline’s claim is barred due to copyright misuse and/or unclean hands. Skyline has engaged
in improper and/or anticompetitive conduct by attempting to extend the effect or operation of its
copyright beyond the scope of the statutory right, which is limited to two-dimensional artwork.
See Complaint Exhibit A, Certificate of Registration for Visual Arts VA 1-364-683.
TENTH AFFIRMATIVE DEFENSE
If it is ultimately found that Skyline suffered injury or damages as alleged in the Complaint,
which injury or damages McGrory expressly denies, Skyline failed to take reasonable steps to avoid
injury or to mitigate any damages allegedly suffered as a result of any acts or omissions of McGrory.
ELEVENTH AFFIRMATIVE DEFENSE
Any injury or damages suffered by Skyline, which injury or damages McGrory expressly
denies, were proximately and directly caused by the actions of others over whom McGrory had no
control.
TWELFTH AFFIRMATIVE DEFENSE
Skyline’s claim is barred by laches and/or equitable estoppel.
PRAYER
WHEREFORE, McGrory prays that this Court:
1. Deny all of Skyline’s claim for relief and dismiss the Complaint with
prejudice;
2. Declare copyright Registration No. Registration No. VA 1-364-683
invalid and unenforceable;
3. Award McGrory its costs and expenses, including attorneys’ fees pursuant
to 17 U.S.C. § 505; and
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18
4. Award such other and further relief as this Court may deem just and
proper.

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19
Dated: February 4, 2013 Respectfully submitted,


/s/ Karol A. Kepchar
Karol A. Kepchar (pro hac vice)
kkepchar@akingump.com
Emily C. Johnson (Bar #6289848)
johnsone@akingump.com
Laura Geyer (pro hac vice)
lgeyer@akingump.com
AKIN GUMP STRAUSS HAUER & FELD LLP
1333 New Hampshire Avenue, N.W.
Washington, DC 20036
Phone: (202) 887-4000
Fax: (202) 887-4288

Steven D. Maslowski (pro hac vice)
smaslowski@akingump.com
AKIN GUMP STRAUSS HAUER & FELD LLP
Two Commerce Square
2001 Market Street, Suite 4100
Philadelphia, PA 19103
Phone: (215) 965-1200
Fax: (215) 965-1210

Gregory V. Ginex (Bar #6282955)
gginex@bollingertrials.com
Daniel James VeNard (Bar #6307236)
dvenard@bollingertrials.com
BOLLINGER CONNOLLY KRAUSE LLC
500 W. Madison Street, Suite 2430
Chicago, Illinois 60661
(312) 253-6200

Attorneys for Defendant McGrory Glass, Inc.
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20
CERTIFICATE OF SERVICE

I, Gregory V. Ginex, hereby certify that I electronically filed the foregoing AMENDED
ANSWER AND AFFIRMATIVE DEFENSES with the Clerk of the Court for the Northern
District of Illinois using the ECF System which will send notification to the registered
participants of the ECF System as listed on the Court’s Notice of Electronic Filing this 5th day of
February, 2013.

/s/ Gregory V. Ginex
Gregory V. Ginex



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EXHIBIT 4
(Dkt. No. 23-1 – Amended Declaration of Emily C. Johnson)


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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION


SKYLINE DESIGN, INC.,
Plaintiff,

v.

McGRORY GLASS, INC.,
Defendant.
)
)
) Case No. 12-cv-10198
)
) Honorable Edmond E. Chang
)
)
)
)

AMENDED DECLARATION OF EMILY C. JOHNSON

I, Emily C. Johnson, hereby declare and state as follows:

1. I am a counsel at the law firm of Akin Gump Strauss Hauer & Feld LLP and
counsel for McGrory Glass, Inc. (“McGrory”) in this action. I am an attorney at law, duly
licensed to practice before all Courts of the State of Illinois, and I am admitted to practice before
this Court. If called to testify to the following, I could do so truthfully, competently, and of my
own personal knowledge.
2. Attached hereto as Exhibit 1 is a true and correct color copy of a photograph of

“Rain,” taken at Akin Gump Strauss Hauer & Feld LLP on January 31, 2013.

3. Attached hereto as Exhibit 2 is a true and correct color copy of a photograph of

MII-247 “BiRain” taken at Akin Gump Strauss Hauer & Feld LLP on January 31, 2013.

4. Attached hereto as Exhibit 3 is a true and correct color copy of a photograph of
Skyline Design, Inc.’s (“Skyline”) “Sateen,” taken at Akin Gump Strauss Hauer & Feld LLP on
January 31, 2013.
5. Attached hereto as Exhibit 4 are true and correct color copies of photographs of

Skyline’s “Sateen” and McGrory’s “Rain” and MII-247 “BiRain,” taken at Akin Gump Strauss



1
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Hauer & Feld LLP on January 31, 2013.

6. Attached hereto as Exhibit 5 is a true and correct graphical depiction of Skyline’s
“Sateen” and McGrory’s MII-247 “BiRain,” prepared by Akin Gump Strauss Hauer & Feld LLP
on February 4, 2013.
7. Attached hereto as Exhibit 6 is a true and correct copy of a webpage printed from

Skyline’s website, available at http://www.skydesign.com/products/glass/ (last visited Feb. 1,

2013).

8. Attached hereto as Exhibit 7 is a true and correct copy of a webpage printed from
Skyline’s website, available at http://www.skydesign.com/sites/default/files/
AboutGlass_TechnicalSpecifications.pdf (last visited Jan. 30, 2013).
9. Attached hereto as Exhibit 8 is a true and correct copy of a webpage printed from

Skyline’s website, available at http://www.skydesign.com/products/glass/weaves-textures

(last visited Jan. 30, 2013).

I declare under the penalty of perjury of the laws of the United States of America that the
foregoing is true and correct, and that this declaration was executed on February 4, 2013, in
Washington, District of Columbia.

/s/ Emily C. Johnson
Emily C. Johnson
















2
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CERTIFICATE OF SERVICE

I, Gregory V. Ginex, hereby certify that I electronically filed the foregoing Amended
Declaration of Emily C. Johnson with the Clerk of the Court for the Northern District of Illinois
using the ECF System which will send notification to the registered participants of the ECF
System as listed on the Court’s Notice of Electronic Filing this 5th day of February, 2013.

/s/ Gregory V. Ginex
Gregory V. Ginex















































3
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EXHIBIT 5
(Dkt. No. 23-1 – Amended Answer Exhibit 1)


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EXHIBIT 6
(Dkt. No. 23-1 – Amended Answer Exhibit 2)


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EXHIBIT 7
(Dkt. No. 23-1 – Amended Answer Exhibit 3)


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EXHIBIT 8
(Dkt. No. 23-1 – Amended Answer Exhibit 4)


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- - -
6ntl1l Rl1i1z 6mmBiRain
,,,,,,,,,. n1cgro ry .con1
www.mcgrory.com
.
SKY L J
PHONE
FAX
E-MAIL· sa
c
GN
.com









EXHIBIT 9
(Dkt. No. 23-1 – Amended Answer Exhibit 5)


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Sateen BiRain























Sateen BiRain
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EXHIBIT 10
(Dkt. No. 23-1 – Amended Answer Exhibit 6)


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File Edit View Favorites Tools Help
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Gla Magnetic Marl<erglass Mirrors I Chidren's Furniture 1 Favorites


Glass
Glass is the core of our business.We have over 50,000 glass rnstallations
around the world.

We decorate glass toalter the way it transmrts fight-from transparent to
translucent to opaqu facllitating !he use of light In the built environment to
inspire the people who rnhabrt 1t

Our glass designs addbeauty, light, and revers of pnvacy to your space.We also
offer a nch array of colorful-as well as func5onal-archllecturalglass products.
such as magnetic markerglass.which foster creativity,communication, and
orgamzation where people interact

The simple, clean elementalmake-up of glass-5and and mineral omes from
!he earth and returns to the earth throughrecycling. Irs the most naturalway to
use light to transform your space.

Our design andmanufacturmg efforts focus on creating a spectrum of
sustainable, handcrafted, quality glass and architecturalproducts-customized to
suit our clients'needs and avoid waste.Whether etched or painted, demountable
or magnetic marker. our award-winning archrtecturalglass products can
111ummate your space.

Our passiOn for glass began when founder Charlie Rizzo learned the craft or
etching glass from English artist Robert Pine in 1985.

Natural, plentiful, pure.andrefined,glass is what sparks our collective
imagmation

Downloads:
Light+ Shadow,Cascade L
ConfidentialClient by GenslerI PhotographerB: ruce Damonte
Case: 1:12-cv-10198 Document #: 23-1 Filed: 02/05/13 Page 15 of 20 PageID #:131 Case: 1:12-cv-10198 Document #: 25-11 Filed: 02/06/13 Page 2 of 2 PageID #:223









EXHIBIT 11
(Dkt. No. 23-1 – Amended Answer Exhibit 7)


Case: 1:12-cv-10198 Document #: 25-12 Filed: 02/06/13 Page 1 of 2 PageID #:224
About Glass: Technical Specifications







We decorate glass to alter the way it transmits light in the built environment, creating
Transparency: transmitting light so that objects can be seen with clarity.
Translucency: diffusing light so that objects cannot be clearly distinguished.
Opacity: entirely obstructing the passage of light.


TECHNIQUES
Our progressive techniques support sustainable
practices that optimize energy use, minimize water
use and transportation resources, reduce waste, and
utilize low-VOC paints and finishes.
Eco-etch
®

Our proprietary application utilizes aluminum oxide
etching to provide a fine, consistent finish. May
be applied on both sides for depth and dimension.
Large-scale eco-etch applications are protected by
Skyline Etch Sealer.
Skyline Etch Sealer


Low-VOC sealer applied on large-scale eco-etch
patterns and surfaces to protect the finished glass
surface, resist fingerprints and discoloration over
time, and facilitate maintenance.
AST


Unique process that ensures dynamic graphic and
photographic reproduction on glass. Available for
opaque and translucent glass options with vast
color capabilities.
Vitracolor
®

Low-VOC, or water-based painting process with an
extensive color selection and exact color matching
formula. Our proprietary automated production
process ensures even distribution of paint for a
uniform coating.
Silk Screening
Used to add contemporary and traditional designs
to mirrors.

CUSTOMIZATION
Most glass patterns are available in both horizontal
and vertical orientations; changing a pattern scale
and/or configuration, or using custom colors may
incur an additional charge.
TYPES OF GLASS
Tempered safety glass
All of our architectural glass products are offered
on tempered safety glass.
Low-iron glass
Ideal for applying color and designs to the front
and back surfaces because of its clarity. Available
in standard and extra-heavy thicknesses.

APPLICATIONS
Skyline offers glass applications in nearly any glass
thickness, type, or make-up, including monolithic
and laminated, fire-rated, mirrors, and more. Our
decorative finishes may be applied to tempered
glass to meet safety and building code requirements.
Maximum size limited to 72” x 144” for patterns.
Certain applications may not be available on all glass
types and/or thicknesses. Surcharges may apply to
oversized or heavy glass.

SUBMITTING CUSTOM COLOR OR ARTWORK
To submit a custom color, just send us the code
or sample of what you’d like to match. We can
match virtually any color. Please see our website for
information on submitting artwork.

SPECIFICATION
We encourage you to contact us directly to provide
specifying instructions for all our glass, as well as
custom specs for your client’s bid-set documents.

MAINTENANCE AND WARRANTY
Please visit our website for detailed product
maintenance and warranty information.

DISCLAIMER
Our product illustrations indicate pattern scale and
density only. Applied finishes and techniques may
affect the overall appearance.


Made in Chicago / © 2011 Skyline Design skydesign.com / 888-278-4660 / sales@skydesign.com
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EXHIBIT 12
(Dkt. No. 23-1 – Amended Answer Exhibit 8)


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Weaves + Textures | Skyline Design Page 1 of 2





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Designed by Lydia Esparza, Wayne Susag, and Skyline Design’s Creative Director Deborah Newmark. The
collection includes ten tactile patterns inspired by everyday fabrics used by indigenous peoples from Mexico and
Africa. The global textile designs give glass a whole new look and feel. Choose from timeless classics such as
Sateen, Challis, and Batiste, among other popular sheer and diaphanous designs.

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EXHIBIT 13

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Only the Westlaw citation is currently available.
United States District Court,
N.D. Illinois, Eastern Division.
Spiros ARETHAS, Plaintiff,
v.
S/TEC GROUP, INC.; Superior Engineering, LLC,
Employee Health Benefit Plan; Professional Claims
Management, Inc.; East Coast Underwriters, LLC;
Fidelity Security Life Ins. Co., Defendants.
No. 04 C 6743.
April 14, 2005.
David A. Bryant, Daley, DeBofsky & Bryant,
Chicago, IL, for Plaintiff.
Lee Thomas Polk, Michael James Mueller, Barnes
& Thornburg, Douglas L. Prochnow, Nicole M.
DeBruin, Wildman, Harrold, Allen & Dixon,
Chicago, IL, for Defendants.
MEMORANDUM OPINION
DERYEGHIAYAN, J.
*1 This matter is before the court on Defendant
Professional Claims Management, Inc.'s (“PCM”)
motion to dismiss and on Defendant East Coast Un-
derwriters, LLC's (“East Coast”) and Defendant Fi-
delity Security Life Insurance Company's
(“Fidelity”) motion for judgment on the pleadings.
For the reasons stated below, we grant in part and
deny in part PCM's motion to dismiss and we deny
without prejudice East Coast's and Fidelity's motion
for judgment on the pleadings.
BACKGROUND
Plaintiff Spiros Arethas (“Arethas”) alleges
that he is an insured participant of an employee
welfare plan maintained by Defendant Superior En-
gineering, LLC, which is now known as S/TEC
Group, Inc. (“S/TEC”). Arethas alleges that in
April of 2004 he was diagnosed with Philadelphia-
chromosome positive Acute Lymphoblastic Leuk-
emia. According to Arethas, he underwent chemo-
therapy and thereafter his physician recommended
that Arethas undergo a peripheral blood stem cell
transplant. Arethas claims that his brother was de-
termined to be a match for Arethas's stem cell and
was an ideal donor. Arethas claims that in June of
2004 his physician requested an expedited insur-
ance approval to proceed onward with the trans-
plant at a cost of $180,000. Arethas contends that
such a request for expedited recovery must be re-
sponded to under the law within 72 hours.
However, according to Arethas, PCM did not re-
spond to the request until July 7, 2004, over 872
hours after the request for coverage. PCM allegedly
responded by granting coverage only up to $50,000.
On July 12, 2004, Arethas sent a letter to PCM ap-
pealing the coverage decision. Arethas claims that
on July 13, 2004, his brother attempted to submit
himself to further testing for the transplant, but the
hospital refused to proceed due to the denial of cov-
erage by PCM.
Arethas claims that on July 23, 2004, he again
sent a letter to PCM stating that he was in urgent
need of a resolution on the coverage issue. Arethas
alleges that on July 26, 2004, he learned that his
white blood count was such that it indicated that his
leukemia was no longer in remission and that since
he was not in remission he could not receive the an-
ticipated transplant. On July 27, 2004, Arethas sent
another letter to PCM reiterating his need for an ex-
pedited response regarding coverage in case the
transplant became suitable again. Thereafter, Areth-
as sent various other letters to PCM regarding cov-
erage. Arethas alleges that he has been taking
Gleevec in order to attempt to go back into remis-
sion, but that he is currently not in remission.
Arethas brought the instant action and in his com-
plaint he includes a claim alleging a denial of
health benefits in violation of 29 U.S.C. §
2560.503-1(m)(2) and 29 U.S.C. § 1133 of the Em-
ployee Retirement Income Security Act (“ERISA”),
29 U.S.C. § 1132 et seq. (Count I), a claim for stat-
Page 1
Not Reported in F.Supp.2d, 2005 WL 991782 (N.D.Ill.)
(Cite as: 2005 WL 991782 (N.D.Ill.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case: 1:12-cv-10198 Document #: 25-14 Filed: 02/06/13 Page 2 of 7 PageID #:230
utory penalties pursuant to 29 U.S.C. § 1024 and §
1132(c) (Count II), and a breach of fiduciary duty
claim (Count III).
LEGAL STANDARD
*2 In ruling on a motion to dismiss, the court
must draw all reasonable inferences that favor the
plaintiff, construe the allegations of the complaint
in the light most favorable to the plaintiff, and ac-
cept as true all well-pleaded facts and allegations in
the complaint. Thompson v. Illinois Dep't of Prof'l
Regulation, 300 F.3d 750, 753 (7th Cir.2002); Per-
kins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991)
. The allegations of a complaint should not be dis-
missed for a failure to state a claim “unless it ap-
pears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would en-
title him to relief.” Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); See also
Baker v. Kingsley, 387 F.3d 649, 664 (7
th
Cir.2004)(stating that although the “plaintiffs' al-
legations provide[d] little detail ... [the court could
not] say at [that] early stage in the litigation that
plaintiffs [could] prove no set of facts in support of
their claim that would entitle them to relief.”). Non-
etheless, in order to withstand a motion to dismiss,
a complaint must allege the “operative facts” upon
which each claim is based. Kyle v. Morton High
School, 144 F.3d 448, 445-55 (7th Cir.1998); Lu-
cien v. Preiner, 967 F.2d 1166, 1168 (7th Cir.1992)
. Under current notice pleading standard in federal
courts a plaintiff need not “plead facts that, if true,
establish each element of a ‘cause of action....” ’
See Sanjuan v. American Bd. of Psychiatry and
Neurology, Inc., 40 F.3d 247, 251 (7
th
Cir.1994)(stating that a “[a]t this stage the plaintiff
receives the benefit of imagination, so long as the
hypotheses are consistent with the complaint” and
that “[m]atching facts against legal elements comes
later.”). The plaintiff need not allege all of the facts
involved in the claim and can plead conclusions.
Higgs v. Carter, 286 F.3d 437, 439 (7th Cir.2002);
Kyle, 144 F.3d at 455. However, any conclusions
pled must “provide the defendant with at least min-
imal notice of the claim,” Id., and the plaintiff can-
not satisfy federal pleading requirements merely
“by attaching bare legal conclusions to narrated
facts which fail to outline the bases of [his] claim.”
Perkins, 939 F.2d at 466-67. The Seventh Circuit
has explained that “[o]ne pleads a ‘claim for relief’
by briefly describing the events.” Sanjuan, 40
F.3d at 251.
A party is permitted under Federal Rule of
Civil Procedure 12(c) to move for judgment on the
pleadings after the parties have filed the complaint
and the answer. Fed.R.Civ.P. 12(c); Northern Indi-
ana Gun & Outdoor Shows, Inc. v. City of South
Bend, 163 F.3d 449, 452 (7th Cir.1998). The courts
apply the Rule 12(b) motion to dismiss standard for
Rule 12(c) motions and thus the court may “grant a
Rule 12(c) motion only if ‘it appears beyond doubt
that the plaintiff cannot prove any facts that would
support his claim for relief.” ’ Id. (quoting Craigs,
Inc. v. General Elec. Capital Corp., 12 F.3d 686,
688 (7th Cir.1993)). The court, in ruling on a mo-
tion for judgment on the pleadings, must “accept as
true all well-pleaded allegations,” Forseth v. Vil-
lage of Sussex, 199 F.3d 363, 364 (7th Cir.2000),
and “view the facts in the complaint in the light
most favorable to the nonmoving party....” North-
ern Indiana Gun & Outdoor Shows, Inc., 163 F.3d
at 452(quoting GATX Leasing Corp. v. National
Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th
Cir.1995)). The main difference between a Rule
12(b) motion and a Rule 12(c) motion is that a Rule
12(b) motion may be filed before the answer to the
complaint is filed, whereas, a Rule 12(c) motion
may be filed “after the pleadings are closed but
within such time as not to delay the trial.” Id. n. 3
*3 A court may rule on a judgment on the
pleadings under Rule 12(c) based upon a review of
the pleadings alone. Id. at 452. The pleadings in-
clude the complaint, the answer, and any written in-
struments attached as exhibits, such as affidavits,
letters, contracts, and loan documentation. Id. at
452-53. In ruling on a motion for judgment on the
pleadings a “district court may take into considera-
tion documents incorporated by reference to the
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pleadings ... [and] may also take judicial notice of
matters of public record.” U.S. v. Wood, 925 F.2d
1580, 1582 (7th Cir.1991). If the court considers
matters outside the pleadings, the court should con-
vert the motion for judgment on the pleadings into a
motion for summary judgment. Northern Indiana
Gun & Outdoor Shows, Inc., 163 F.3d at 453 n. 5.
DISCUSSION
I. PCM's Motion to Dismiss
PCM has moved to dismiss the claims in Count
I and II against PCM because the Plan administrat-
or, rather than PCM made the ultimate denial de-
cision. PCM also moves to dismiss the fiduciary
duty claim (Count III) against PCM because PCM
is not a fiduciary. As an initial matter, Arethas
agrees to voluntarily dismiss PCM from Count II.
Therefore, we grant PCM's motion to dismiss Count
II.
A. Denial of Benefits
PCM argues that it is the responsibility of the
Plan administrator to make the ultimate determina-
tion to deny benefits under the Plan. PCM claims
that its role in connection with the Plan is to act as
a service provider and to provide “case manage-
ment and utilization review services, initial claims
review, and claims payment services.” (Mot.Dis.4).
Generally, an ERISA claim for benefits must be
brought against the pertinent plan. Mein v. Carus
Corp., 241 F.3d 581, 584-85 (7
th
Cir.2001). Both
Arethas and PCM cite with approval Mein v. Carus
Corp., 241 F.3d 581 (7
th
Cir.2001) in support of
their positions. In Mein, the Seventh Circuit indic-
ated that an entity other than the plan may be
named as a defendant for such a claim if the “exact
relationship between that [other entity] and the plan
is not clearly set out” and it appears that the plan
and the entity are “closely intertwined....” Id.
(quoting Riordan v. Commonwealth Edison Co.,
128 F.3d 549, 551 (7
th
Cir.1997)). In Mein, the
court allowed the defendant employer to remain as
a named defendant in the action because the rela-
tionship between the pertinent plan and the employ-
er was not clear. Id. In arriving at such a conclu-
sion, the court in Mein noted that the summary plan
description of the plan in question used pronouns
that clearly referred to the defendant employer
rather than the plan and that “[t]hroughout the de-
scription, as in Riordan, the close relationship
between the corporation and the plan is evident.”
Id. The court in Mein also noted that “the desig-
nated agent for legal process [wa]s the [employer]
corporation” and that the plan administrator was the
defendant employer corporation itself which was
provided with complete control over the plan. Id.
Finally, the court in Mein noted that “the plan trust-
ee, with whom [the plaintiff] most often communic-
ated, was James C. Wilkes, who, although at least
on some occasions, signed letters as trustee for the
plan, also used [the defendant employer's] station-
ary which indicated that he was vice-president of
human resources for the corporation.” Id.
*4 In the instant action, Arethas argues that
PCM “acted as both an administrator and a fidu-
ciary” because “PCM is vested with unfettered abil-
ity to approve or deny claims and interpret lan-
guage, making PCM a fiduciary under ERISA.”
(Dis.Ans.6). Arethas also argues that “PCM is act-
ing with independent discretion and control in the
management of this aspect of the Plan....”
(Dis.Ans.6). However, other than such conclusory
statements, Arethas fails to show how PCM and the
Plan are intertwined such that PCM should be
named as a defendant for the denial of benefits.
Arethas apparently recognizes the lack of support
for his position arguing that at the very least PCM
“is clearly acting as the de facto plan administrator
for the Plan.” (Dis.Ans.7). However, Arethas fails
to explain why PCM is a de facto plan administrat-
or and in support of such a position Arethas cites an
Eleventh Circuit case which is not controlling pre-
cedent. (Dis.Ans.7). Arethas also recites in detail an
analysis of a dissent in a Ninth Circuit case which
is not controlling precedent. (Dis.Ans.7). Arethas
acknowledges in his second amended complaint
that S/TEC is the Plan's sponsor and administrator.
(SAC Par. 6).
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PCM has also made reference to the terms in-
cluded in the Plan itself which are not expressly lis-
ted in the second amended complaint. For the pur-
poses of a Rule 12(b)(6) motion to dismiss, a court
can consider a document attached to a motion to
dismiss, such as a contract, as long as the docu-
ment: 1) is “referred to in the plaintiff's complaint,”
and 2) is “central to his claim....” Levenstein v.
Salafsky, 164 F.3d 345, 347 (7
th
Cir.1998). In
Arethas' second amended complaint, he makes spe-
cific reference to the Plan and makes it clear that
the dispute in the action is concerning the Plan.
Therefore, we may consider the Plan as part of our
analysis for the motion to dismiss. The Plan indic-
ates that PCM, the Plan Supervisor, is responsible
for reviewing the facts and documents pertaining to
a benefits request and that PCM's review is then to
be delivered to the Plan Administrator. (Plan Sec-
tion 7.00). The Plan makes clear that “[t]he Plan is
administered through the Plan Administrator” and
“[t]he services of an Independent Plan Supervisor
experienced in claims processing have been re-
tained to process claims for the Plan.” (Plan Sec-
tion 7.01). The Plan does not allow for legal notice
to be filed with the Plan Supervisor, but instead
also provides that all legal notices are to be filed
with the Plan or the Plan Administrator. (Plan Sec-
tion 7.01). Therefore, since the Plan or at the very
least the Plan Administrator is the proper Defendant
for a denial of benefits claim, we grant PCM's mo-
tion to dismiss the claim for denial of benefits
against PCM (Count I).
B. Breach of Fiduciary Duty
PCM argues that the breach of fiduciary duty
claim brought against PCM should be dismissed be-
cause PCM is not a fiduciary under the Plan. A
non-fiduciary cannot be held liable under ERISA
for a breach of fiduciary duty even if the non-
fiduciary “participate[d] knowingly in an ERISA fi-
duciary's breach of fiduciary obligations....” Reich
v. Continental Cas. Co., 33 F.3d 754, 757 (7
th
Cir.1994). See also Schmidt v. Sheet Metal Work-
ers' Nat. Pension Fund, 128 F.3d 541, 547 (7
th
Cir.1997)(stating that “[i]t goes without saying that
a claim for breach of fiduciary duty lies only
against an individual or entity that qualifies as an
ERISA ‘fiduciary.” ’). ERISA defines the term
“fiduciary” as a person that “exercises any discre-
tionary authority or discretionary control respecting
management of such plan or exercises any authority
or control respecting management or disposition of
its assets, ... renders investment advice for a fee or
other compensation, direct or indirect, with respect
to any moneys or other property of such plan, or
has any authority or responsibility to do so, or ...
has any discretionary authority or discretionary re-
sponsibility in the administration of such plan.” 29
U.S.C. § 1002(21). Thus, for an individual or entity
to be an ERISA fiduciary, the individual or entity
“must exercise a degree of discretion over the man-
agement of the plan or its assets, or over the admin-
istration of the plan itself.” Schmidt, 128 F.3d at
547.
*5 PCM argues that it performs only ministeri-
al duties under the Plan, while Arethas contends
that PCM performs discretionary duties under the
Plan. PCM points to the Plan which states in the
“Fiduciary Operation” section that “[t]he Plan Ad-
ministrator or its designee shall have full discre-
tionary authority to correct any defect, supply any
omission or reconcile any inconsistency and resolve
any ambiguities in the Plan....” (Plan Section 7.21).
Arethas claims that PCM was acting as a fiduciary
designee of S/TEC when PCM on its own inter-
preted the Plan and determined that Arethas' claim
was not covered under the Plan. While PCM insists
in its reply that it performed only ministerial func-
tions under the Plan, it is not clear from the plead-
ings before us that such is the case. Whether or not
PCM acted as S/TEC's fiduciary designee or exer-
cised discretionary decision making under any oth-
er portion of the Plan requires an inquiry that is
beyond the appropriate inquiry at the pleadings
stage. The fact that PCM's arguments are premature
are illustrated by PCM's recitation of the analysis in
Tegtmeier v. Midwest Operating Engineers Pension
Trust Fund, 390 F.3d 1040 (7
th
Cir.2004). The
Court in Tegtmeier addressed a similar issue as in
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the instant action, but the Court was reviewing a
district court's ruling on the parties' cross motions
for summary judgment. Id. at 1042. PCM also cites
in support of its position Schmidt v. Sheet Metal
Workers' Nat. Pension Fund, 128 F.3d 541 (7
th
Cir.1997) in which the Seventh Circuit was review-
ing a district court's ruling on a summary judgment
motion. Id. at 545. Thus, PCM”s arguments regard-
ing its fiduciary status are premature at this junc-
ture.
PCM also argues that Arethas cannot bring a
breach of fiduciary duty claim under 29 U.S.C. §
1132(a)(3) (“Section 1132(a)(3) ”) for lost benefits
because Arethas has available to him an ordinary
benefits claim against the Plan under 29 U.S.C. §
1132(a)(1)(B)(“ Section 1132(a)(1)(B) ”). Arethas
concedes in his answer that he is not seeking “to re-
cover benefits due to him under the terms of his
plan” pursuant to Section § 1132(a)(1)(B). 29
U.S.C. § 1132(a)(1)(B). However, Arethas points
out that there is relief expressly provided for in
Section 1132(a)(3) that may be applicable in this
action, such as the right by a participant “to enjoin
any act or practice which violates any provision of
this subchapter or the terms of the plan, or ....to ob-
tain other appropriate equitable relief....” 29 U.S.C.
§ 1132(a)(3). Arethas argues that depending on
whether or not his leukemia again goes into remis-
sion he may need to seek relief under Section
1132(a)(3) that will not be available under Section
1132(a)(1)(B). We agree that PCM's arguments in
regards to the breach of fiduciary duty claim are
premature. PCM repeatedly cites in support of its
position on this point Varity Corp. v. Howe, 516
U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996).
However, in Varity, the United States Supreme
Court was not reviewing a district court's ruling at
the pleading stage. In fact, in Varity the district
court had conducted a full trial and made findings
of fact prior to the appeal. Id. at 492. PCM also
cites Van Hoey v. Baxter Intern., Inc., 1997 WL
665855 (N.D.Ill.1997) in support of its position, but
in that case the district court was ruling upon cross
motions for summary judgment rather than a mo-
tion to dismiss. Id. at *1. Therefore, we deny
PCM's motion to dismiss the breach of fiduciary
duty claim against PCM (Count III).
II. Motion for Judgment on the Pleadings
*6 East Coast and Fidelity have moved for
judgment on the pleadings on all claims brought
against the two Defendants. East Coast and Fidelity
argue that they cannot be held liable for a denial of
benefits because they were not parties to the Plan.
East Coast and Fidelity also argue that they cannot
be held liable for a breach of fiduciary duties be-
cause neither of them are fiduciaries of the Plan.
East Coast and Fidelity have attached affidavits
to their motion for judgment on the pleadings and
have asked the court to consider the affidavits in
ruling on the motion. Arethas correctly points out
that the court cannot consider such affidavits when
ruling on a motion for judgment on the pleadings.
A court may rule on a judgment on the pleadings
under Rule 12(c) based upon a review of the plead-
ings alone. Id. at 452. The pleadings include the
complaint, the answer, and any written instruments
attached as exhibits, such as affidavits, letters, con-
tracts, and loan documentation. Id. at 452-53. In
ruling on a motion for judgment on the pleadings, a
“district court may take into consideration docu-
ments incorporated by reference to the pleadings ...
[and] may also take judicial notice of matters of
public record.” U.S. v. Wood, 925 F.2d 1580, 1582
(7th Cir.1991). If the court considers matters out-
side the pleadings, the court should convert the mo-
tion for judgment on the pleadings into a motion for
summary judgment. Northern Indiana Gun & Out-
door Shows, Inc., 163 F.3d at 453 n. 5.
As indicated above, although in ruling on a mo-
tion for judgment on the pleadings a court can con-
sider affidavits attached to a complaint or an an-
swer to the complaint, a court cannot consider affi-
davits that are not a part of the pleadings. Thus, a
consideration of the affidavits attached by east
Coast and Fidelity to their motion for judgment on
the pleadings would only be proper if the court de-
cides to convert the motion into a summary judg-
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ment motion. If East Coast and Fidelity want to
proceed forward on a motion for judgment on the
pleadings, they will need to seek leave to amend
their answer and attach the affidavits. Otherwise
any future motion for judgment on the pleadings
with affidavits attached would only be proper if the
court converted the motion into a motion for sum-
mary judgment. Therefore, we deny without preju-
dice East Coast's and Fidelity's motion for judg-
ment on the pleadings.
CONCLUSION
Based on the foregoing analysis, we grant
PCM's motion to dismiss the denial of benefits
claim brought against PCM and deny PCM's motion
to dismiss the breach of fiduciary duty claim
brought against PCM. We deny without prejudice
East Coast's and Fidelity's motion for judgment on
the pleadings.
N.D.Ill.,2005.
Arethas v. S/TEC Group, Inc.
Not Reported in F.Supp.2d, 2005 WL 991782
(N.D.Ill.)
END OF DOCUMENT
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EXHIBIT 14

Case: 1:12-cv-10198 Document #: 25-15 Filed: 02/06/13 Page 1 of 10 PageID #:236
Only the Westlaw citation is currently available.
United States District Court,
N.D. Illinois,
Eastern Division.
Guy HOBBS, an individual, Plaintiff,
v.
Elton JOHN a/k/a Sir Elton Hercules John, an indi-
vidual, Bernard John Taupin a/k/a Bernie Taupin,
an individual, and Big Pig Music, Ltd., a foreign
business organization, form unknown, Defendants.
No. 12 C 3117.
Oct. 29, 2012.
Daniel John Voelker, Tricia Lynn Putzy, Voelker
Litigation Group, Chicago, IL, for Plaintiff.
Stephanie R. Kline, Tom J. Ferber, Ilene S. Farkas,
Pryor Cashman LLP, New York, NY, Howard
Lamar Huntington, Mahoney, Silverman & Cross,
LLC, Joliet, IL, Mary Joanne Bortscheller, Willi-
ams Montgomery & John Ltd., Chicago, IL, for De-
fendants.
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
*1 On April 26, 2012, Plaintiff Guy Hobbs
brought the present three-count Complaint against
Defendants Elton John, Bernard John Taupin, and
Big Pig Music, Ltd., alleging copyright infringe-
ment in violation of the Copyright Act of 1976, 17
U.S.C. § 101, et seq. (Count I), as well as state law
claims for the equitable remedies of constructive
trust (Count II) and an accounting (Count III), pur-
suant to the Court's supplemental jurisdiction. See
28 U.S.C. §§ 1331, 1367(a). On August 7, 2012,
Defendants filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). For the following
reasons, the Court grants Defendants' motion to dis-
miss and dismisses this lawsuit in its entirety.
LEGAL STANDARD
A Rule 12(b)(6) motion challenges the suffi-
ciency of the complaint. See Hallinan v. Fraternal
Order of Police of Chicago Lodge No. 7, 570 F.3d
811, 820 (7th Cir.2009). Under Rule 8(a) (2), a
complaint must include “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The short and plain
statement under Rule 8(a)(2) must “give the de-
fendant fair notice of what the claim is and the
grounds upon which it rests.” Bell Atlantic v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007) (citation omitted). Under the
federal notice pleading standards, a plaintiff's
“factual allegations must be enough to raise a right
to relief above the speculative level.” Twombly, 550
U.S. at 555. Put differently, a “complaint must con-
tain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’
“ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (quoting
Twombly, 550 U.S. at 570). “In evaluating the suffi-
ciency of the complaint, [courts] view it in the light
most favorable to the plaintiff, taking as true all
well-pleaded factual allegations and making all
possible inferences from the allegations in the
plaintiff's favor.” AnchorBank, FSB v. Hofer, 649
F.3d 610, 614 (7th Cir.2011). Courts may also con-
sider documents attached to the pleadings without
converting the motion into a motion summary judg-
ment, as long as the documents are referred to in
the complaint and central to the claims. See
Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1
(7th Cir.2012); Wigod v. Wells Fargo Bank, N.A.,
673 F.3d 547, 556 (7th Cir.2012) Fed.R.Civ.P.
10(c).
BACKGROUND
I. Factual Allegations
Plaintiff Guy Hobbs, who was born in Aus-
tralia and raised in the United Kingdom, is an
award-winning freelance photojournalist. (R. 1,
Compl.¶ 7.) At the beginning of 1982, after study-
ing photography at Salisbury Art College in the
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United Kingdom, Hobbs took his first job as a pho-
tographer on a Russian cruise ship, the Taras
Shevchenko. (Id. ¶ 8.) While on board the Russian
cruise ship, Hobbs became romantically involved
with a Ukrainian waitress. (Id.) Before leaving the
Taras Shevchenko in the spring of 1982, he wrote
the lyrics to a song called “Natasha” inspired by his
experiences with the waitress. (Id. ¶ 9.) In his Com-
plaint, Hobbs alleges that “Natasha” is about an im-
possible love affair between a Western man and an
Ukrainian woman during the Cold War. (Id.)
*2 In April 1982, Hobbs transferred to a Greek
ship and, after a year at sea, he moved to London
for two years. (Id. ¶ 10.) On May 10, 1983, Hobbs
registered his copyright of “Natasha” in the United
Kingdom through the process proscribed by the
United Kingdom Intellectual Property Office. (Id.)
Again, on November 11, 1983, Hobbs registered his
copyright of “Natasha” in the United Kingdom,
along with four other songs' lyrics he had written. (
Id. ¶ 12.) Meanwhile, based on information Hobbs
found in a September 1984 issue of a magazine
called “The Songwriter,” Hobbs forwarded the
“Natasha” lyrics to several music publishers, in-
cluding Defendant Big Pig, asking them to consider
publishing his lyrics and assisting him in connect-
ing with singer/songwriter collaborators. (Id. ¶ 11.)
Hobbs maintains that at that time, he thought Big
Pig was an independent publishing company and
did not know it was affiliated with Defendants John
and Taupin. (Id.)
In October 1984, after having had no success
with his lyrics, Hobbs returned to his career as a
photojournalist. (Id. ¶ 13.) In 2001, Hobbs came
across the written lyrics of Defendants' “Nikita” for
the first time in a song book.
FN1
(Id. ¶ 14.) Ac-
cording to Hobbs, “Nikita” involves an impossible
love affair between a Western man and an East
German woman during the Cold War. (Id.) Hobbs
further alleges that when he read the “Nikita” lyr-
ics, he was shocked by the many similarities
between the lyrics of “Nikita” and “Natasha” and
that since 2001, he has consistently communicated
with Defendants John, Taupin, and their attorneys
demanding compensation for the unauthorized use
of his lyrics. (Id. ¶¶ 14–15.)
FN1. Although the statute of limitations
for copyright infringement is three years
and starts to run when the plaintiff learns,
or should have learned, that the defendant
was violating his rights, see Gaiman v. Mc-
Farlane, 360 F.3d 644, 653 (7th Cir.2004),
Defendants did not move to dismiss Hobbs'
Complaint as untimely.
In 1985, Big Pig copyrighted the musical com-
position entitled “Nikita”—Certificate of Registra-
tion PA0000267371/1985–11–18. (Id. ¶ 27.) Hobbs
maintains that the authorship on the “Nikita” copy-
right application lists John and Taupin, although
Hobbs alleges that John and Taupin never sought or
obtained his permission to copy, duplicate, perform,
or otherwise use his lyrics to “Natasha” in their mu-
sical composition and sound recording of “Nikita.”
(Id. ¶¶ 27–28.)
II. Songs' Lyrics
The lyrics to Defendants' song “Nikita” are as
follows:
Hey Nikita is it cold
In your little corner of the world
You could roll around the globe
And never find a warmer soul to know
Oh I saw you by the wall
Ten of your tin soldiers in a row
With eyes that looked like ice on fire
The human heart a captive in the snow
Oh Nikita you will never know, anything about
my home
I'll never know how good it feels to hold you
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Nikita I need you so
Oh Nikita is the other side of any given line in
time
Counting ten tin soldiers in a row
Oh no, Nikita you'll never know
Do you ever dream of me
Do you ever see the letters that I write
When you look up through the wire
*3 Nikita do you count the stars at night
And if there comes a time
Guns and gates no longer hold you in
And if you're free to make a choice
Just look towards the west and find a friend
Oh Nikita you will never know, anything about
my home
I'll never know how good it feels to hold you
Oh no, Nikita you'll never know
Oh Nikita you will never know, anything about
my home
I'll never know how good it feels to hold you
Nikita I need you so
Oh Nikita is the other side of any given line in
time
Counting ten tin soldiers in a row
Oh no, Nikita you'll never know
Counting ten tin soldiers in a row.
(R. 23–10, Ex. H, “Nikita” lyrics.)
Hobbs' lyrics to “Natasha” are:
You held my hand a bit too tight
I held back the tears
I wanted just to hold you, whisper in your ear
I love you, girl I need you
Natasha ... Natasha ... I didn't want to go
Natasha ... Natasha ... the freedom you'll never
know
the freedom you'll never know
But a Ukraine girl and a UK guy just never stood
a chance
Never made it to the movies, never took you to a
dance
You never sent me a Valentine, I never gave you
flowers
There was so much I had to say
But time was never ours
You sailed away—no big goodbyes
Misty tears in those pale blue eyes
I wanted just to hold you, whisper in your ear
I love you, girl I need you
Run my fingers through your hair
Natasha ... Natasha ... I didn't want to go
Natasha ... Natasha ... the freedom you'll never
know
the freedom you'll never know
You held my hand a bit too tight
I held back the tears
I wanted just to hold you, whisper in your ear
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I love you, girl I need you
Natasha ... Natasha ... I didn't want to go
Natasha ... Natasha ... the freedom you'll never
know
the freedom you'll never know
But Natasha ..... Remember me [spoken quietly ].
(R. 23–11, Ex. I, “Natasha” lyrics.)
ANALYSIS
I. Copyright Infringement Claim—Count I
To establish a copyright infringement claim, a
plaintiff must show: “(1) ownership of a valid
copyright; and (2) unauthorized copying of con-
stituent elements of the work that are original.” See
Peters v. West, 692 F.3d 629, 632 (7th Cir.2012)
(citation omitted); see also Nova Design Build, Inc.
v. Grace Hotels, LLC, 652 F.3d 814, 817 (7th
Cir.2011). As to the second requirement, due to the
rarity of direct evidence of copying, “a plaintiff
may prove copying by showing that the defendant
had the opportunity to copy the original (often
called ‘access') and that the two works are
‘substantially similar,’ thus permitting an inference
that the defendant actually did copy the original.”
Peters, 692 F.3d at 633; see also Nova Design
Build, 652 F.3d at 817–18. The Court focuses on
the “substantially similar” aspect of this require-
ment because it is dispositive.
FN2
The substantially
similar test, also known as the “ordinary observer”
test, requires the Court to consider “whether the ac-
cused work is so similar to the plaintiff's work that
an ordinary reasonable person would conclude that
the defendant unlawfully appropriated the plaintiff's
protectible expression by taking material of sub-
stance and value.” Incredible Tech., Inc. v. Virtual
Tech., Inc., 400 F.3d 1007, 1011 (7th Cir.2005)
(citation omitted). The Seventh Circuit has recently
simplified the test for substantial similarity,
namely, whether “the two works share enough
unique features to give rise to a breach of the duty
not to copy another's work.” Peters, 692 F.3d at
633–34. “The test for substantial similarity is an
objective one.” JCW Inv., Inc. v. Novelty, Inc., 482
F.3d 910, 916 (7th Cir.2007).
FN3
FN2. Defendants concede ownership and
access solely for purposes of this motion to
dismiss.
FN3. Because the test for substantial simil-
arity is an objective test, district courts
may determine copyright infringement
claims at the motion to dismiss stage of lit-
igation. See, e.g., Peters v. West, 776
F.Supp.2d 742 (N.D.Ill.2011), aff'd Peters
v. West, 692 F.3d 629 (7th Cir.2012);
O'Leary v. Books, No. 08 C 0008, 2008
WL 3889867, at *2–3 (N.D.Ill. Aug.18,
2008).
*4 In their motion to dismiss, Defendants ask
the Court to compare the lyrics of the two songs
“Nikita” and “Natasha” pursuant to Rule 10(c) ar-
guing that the lyrics are not substantially similar.
See Peters, 692 F.3d at 633. Hobbs does not object
to Defendants' Rule 10(c) request, and because the
Complaint references both songs' lyrics and the lyr-
ics are central to this lawsuit, it is appropriate under
Rule 10(c) and Seventh Circuit case law for the
Court to consider Defendants' attachments contain-
ing the songs' lyrics. See Geinosky, 675 F.3d at 745
n. 1; Wigod, 673 F.3d at 556; Peters v. West, 776
F.Supp.2d 742, 747 (N.D.Ill.2011).
A. Non–Protectable Elements
There are several limitations to copyright pro-
tection that are relevant to the parties' arguments.
First, it is well-established that common words and
phrases are not protected under the Copyright Act.
See Peters, 692 F.3d at 635–36 (The ubiquity of
“what does not kill me, makes me stronger” sug-
gests that Defendants lyrics do not infringe on
Plaintiff's song); Johnson v. Gordon, 409 F.3d 12,
24 (1st Cir.2005) (“You're the one for me” too
common and trite to warrant copyright protection);
Acuff–Rose Music, Inc. v. Jostens, Inc., 155 F.3d
140, 144 (2d Cir.1998) (phrase “you've got to stand
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for something, or you'll fall for anything” too com-
mon to accord copyright protection); 37 C.F.R. §
202.1. In other words, “phrases that are ‘standard,
stock, ... or that necessarily follow from a common
theme or setting’ may not obtain copyright protec-
tion.” Lexmark Int'l Inc. v. Static Control Compon-
ents, Inc., 387 F.3d 522, 535 (6th Cir.2004)
(citation omitted).
In addition, it is “a fundamental tenet of copy-
right law that the idea is not protected, but the ori-
ginal expression of the idea is.” JCW Inv., 482 F.3d
at 917. Put differently, the “Copyright Act protects
the expression of ideas, but exempts the ideas them-
selves from protection.” Seng–Ting Ho, 648 F.3d at
497 (citation omitted). As the Supreme Court re-
cently explained:
The idea/expression dichotomy is codified at 17
U.S.C. § 102(b): “In no case does copyright pro-
tec[t] ... any idea, procedure, process, system,
method of operation, concept, principle, or dis-
covery ... described, explained, illustrated, or em-
bodied in [the copyrighted] work.” “Due to this
[idea/expression] distinction, every idea, theory,
and fact in a copyrighted work becomes instantly
available for public exploitation at the moment of
publication”; the author's expression alone gains
copyright protection.
Golan v. Holder, ––– U.S. ––––, 132 S.Ct. 873,
890, 181 L.Ed.2d 835 (2012) (citing Harper & Row
Publishers, Inc. v. National Enter., 471 U.S. 539,
556, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)
(“idea/expression dichotomy strike[s] a definitional
balance between the First Amendment and the
Copyright Act by permitting free communication of
facts while still protecting an author's expression”)
(internal quotation marks omitted)). “This limita-
tion on copyright protection promotes the purpose
of the Copyright Act by assuring ‘authors the right
to their original expression,’ but also by
‘encourag[ing] others to build freely upon the ideas
and information conveyed by a work.’ ”
Seng–Tiong Ho, 648 F.3d 497 (citation omitted).
*5 Furthermore, the scènes à faire doctrine
prohibits copyright protection for “incidents, char-
acters or settings which are as a practical matter in-
dispensable, or at least standard, in the treatment of
a given topic.” Incredible Tech., 400 F.3d at 1012
(citation omitted). In other words, “a copyright
owner can't prove infringement by pointing to fea-
tures of his work that are found in the defendant's
work as well but that are so rudimentary, common-
place, standard, or unavoidable that they do not
serve to distinguish one work within a class of
works from another.” Bucklew v. Hawkins, Ash,
Baptie & Co., LLP, 329 F.3d 923, 929 (7th
Cir.2003).
B. Substantially Similar Test
Hobbs sets forth the following areas of similar-
ity in the songs' lyrics to establish that Defendants
infringed his copyrighted lyrics to “Natasha”:
• A theme of impossible love between a Western
man and a Communist woman during the Cold
War;
• Both songs have descriptions of a woman's pale
eyes;
• Both songs reference sending correspondence in
the mail;
• Both songs repeat and emphasize a concept of
events that never happened—the word “never”
appears 12 times in “Natasha” and 11 times in
“Nikita”;
• In the chorus, the title names are each repeated
four times and then combined with the phrases
“You'll never know,” “you will never know,” “to
hold you,” and “I need you;”
• The phrase “to hold you” is repeated three times
in Plaintiff's song, and four times in Defendants'
song;
• Each song has a one-word, phonetically-similar
title consisting of a three-syllable Russian name,
both beginning with the letter “N” and ending
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with the letter “A;” and
• The title name is repeated 13 times in “Natasha”
and 14 times in “Nikita.”
Of these listed similarities, there are certain
themes or ideas that Hobbs argues are protected un-
der the Copyright Act, including the impossible
love affair during the Cold War, a postal theme, and
references to a woman's pale eyes. These themes
are not protected under the Copyright Act because
they are rudimentary, commonplace, and standard
under the scènes à faire doctrine. See Atari, 672
F.2d at 915 (“such stock literary devices are not
protectible by copyright”). Moreover, phrases and
themes that are common, trite, or clichéd are not
protected under copyright laws. See Peters, 776
F.Supp.2d at 750; 37 C.F.R. § 202.1. As the Sev-
enth Circuit teaches: “If standard features could be
used to prove infringement, not only would there be
great confusion because it would be hard to know
whether the alleged infringer had copied the feature
from a copyrighted work or from the public do-
main, but the net of liability would be cast too
wide; authors would find it impossible to write
without obtaining a myriad [ ] copyright permis-
sions.” See Gaiman v. McFarlane, 360 F.3d 644,
659 (7th Cir.2004).
The theme of a Cold War love affair, for ex-
ample, is not protected under the Copyright Act be-
cause this was a common theme in songs, books,
and movies for decades. See Hoehling v. Universal
City Studios, Inc., 618 F.2d 972, 979 (2d Cir.1980)
(“Because it is virtually impossible to write about a
particular historical era or fictional theme without
employing certain ‘stock’ or standard literary
devices, we have held that scènes à faire are not
copyrightable as a matter of law.”); see also Lex-
mark Int'l Inc., 387 F.3d at 535 (“phrases that are
‘standard, stock, ... or that necessarily follow from
a common theme or setting’ may not obtain copy-
right protection.”). In particular, the theme of a
Cold War love affair is present in other songs writ-
ten during the same time period that Hobbs wrote
“Natasha.”
FN4
Also, the reference to a woman's
light-colored eyes is also too common or clichéd to
be protectable expression. In fact, in 1982, which
was the same year Hobbs wrote “Natasha,” Defend-
ant John wrote a love song called “Blue Eyes.”
FN5
Likewise, a postal theme in a love song is very
common in popular music.
FN6
FN4. See Devo, “Cold War,” http://
www.lyricsfreak.com/d/devo/cold+war_20
039646.html (“I heard it said that all is
fair, In love and war so what's life for, The
boy and girl, Two separate worlds, The
endless tug of war, Uh!”); David Bowie &
Brian Eno, “Heroes,” ht-
tp://www.lyricsfreak.com/d /dav-
id+bowie/heroes+single+version_
20962708.html (“I, I can remember (I re-
member), Standing by the wall (By the
wall), And the guns, shot above our heads
(Over our heads), And we kissed, as
though nothing could fall (Nothing could
fall”)).
FN5. See Elton John & Gary Osborne,
“Blue Eyes,” http://
www.lyricsfreak.com/e/elton+john/blue+e
yes_20046435.html
FN6. See Dario Marianelli, “Love Letters,”
as performed by Elton John, ht-
tp://www.lyric
sfreak.com/e/elton+john/love+letters_2004
6251.html
*6 Further, the references to the postal theme
are expressed differently. Hobbs' lyrics in
“Natasha” are “you never sent me a Valentine” and
“Nikita” states “do you ever see the letters that I
write?” Likewise, the descriptions of women's eyes
are expressed differently, namely, Taupin's and
John's lyrics state: “With eyes that looked like ice
on fire,” whereas Hobbs' lyrics are “Misty tears in
those pale blue eyes.” See Peters, 692 F.3d at 636
(“entirely different lines” are not substantially sim-
ilar).
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Next, Hobbs argues that the songs' lyrics are
substantially similar because they emphasize a
concept of events that never happened and that the
word “never” appears multiple times in both songs,
as well as the phrase “to hold you.” Again, the
concept of events that never happened is too gener-
ic to constitute an original expression protected un-
der the Copyright Act. See Bucklew, 329 F.3d at
929–30. Also, the word “never” and the phrase “to
hold you” are not sufficiently unique to be protect-
able. See Peters, 692 F.3d at 633–34.
Hobbs additionally points to the chorus, also
known as “hook,” of each song, arguing that the
title/women's names are each repeated four times
and then the names are combined with the phrases
“you'll never know,” “you will never know,” “to
hold you,” and “I need you.” The phrases, “you'll
never know,” “to hold you,” and “I need you” are
commonly used in musical lyrics.
FN7
Also, short
phrases that do not express an “appreciable amount
of original text” are not subject to copyright protec-
tion. See Alberto–Culver Co. v. Andrea Dumon,
Inc., 466 F.2d 705, 711 (7th Cir.1972); 37 C.F.R. §
202.1.
FN7. See, e.,g., Mindi Adair, Matthew, Ha-
gen, “You'll Never Know,” performed by
Frank Sinatra, http://
www.lyricsfreak.com/f/frank+sinatra/youll
+never+know_20055900 .html; Keith
Moon, “I Need You,” ht-
tp://www.lyricsfreak.com/w/who/i+need+y
ou_ 20146459.html.
Meanwhile, although Hobbs argues that the lyr-
ics are substantially similar because “[e]ach song
has a one-word, phonetically-similar title consisting
of a three-syllable Russian name, both beginning
with the letter ‘N’ and ending with the letter ‘A,’ “
he acknowledges that the titles “Natasha” and
“Nikita” are not identical. Because “titles by them-
selves are not subject to copyright protection,” see
Peters, 776 F.Supp.2d at 749, the comparison of the
two titles is not relevant to the Court's analysis, es-
pecially because they are not the same. See 37
C.F.R. § 202.1; see also Wihtol v. Wells, 231 F.2d
550, 553 (7th Cir.1956). Furthermore, both names
are popular—a quick search on the United States
Copyright Office's Registered Works Database re-
veals that there are other songs entitled “Natasha”
and “Nikita” that have copyright protection. See ht-
tp//cocatalog.loc.gov.
Hobbs also contends that the songs are substan-
tially similar because the women's names are re-
peated approximately thirteen times in each song,
including the repetition of the names in the hook.
Although both songs repeat the women's names
throughout the song, courts have recognized that in
popular music, most songs are “relatively short and
tend to build on or repeat a basic theme.” See Selle,
741 F.3d at 904; see also Johnson, 409 F.3d at 22;
Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d
Cir.1988). Indeed, repeating the name of a love in-
terest is common in popular music.
FN8
FN8. See Raymond Davies, “Lola,” http://
www.lyricsfreak.com/k/kinks/lola_200790
21.html; Gordon Sumner, “Roxanne,” ht-
tp://
www.lyricsfreak.com/j/juliet+simms/roxan
ne_21016751.html
*7 Thus, after filtering out the non-protected
elements, no similarities exist between the two
songs except for generic themes, words, and
phrases, as discussed above. In other words, the
ubiquity of the common sayings sprinkled
throughout both “Nikita” and “Natasha,” along with
the repeated use of these commons phrases and say-
ings in other songs, establish that Defendants' lyrics
to “Nikita” do not infringe on Hobbs' lyrics to
“Natasha.” See Peters, 692 F.3d at 635–36. In sum,
the similarities highlighted by Hobbs are not suffi-
ciently unique or complex to establish copyright in-
fringement. See id. at 635; Selle v. Gibb, 741 F.2d
896, 904 (7th Cir.1984).
Indeed, Hobbs all but admits that these ele-
ments are not protectable individually, but argues
that his unique combination of these elements cre-
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ates a protectable, copyrightable work. (R. 31,
Hobbs' Resp., at 7.) As such, Hobbs asks the Court
to compare the “total concept and feel” of the two
works without looking at whether the copied parts
are protected under the Copyright Act. See Atari,
672 F.2d at 614. Despite Hobbs' argument, the Sev-
enth Circuit has made it abundantly clear that “[i]f
the copied parts are not, on their own, protectable
expression, then there can be no claim for infringe-
ment of the reproduction right.” Peters, 692 F.3d at
632; see also Incredible Tech., 400 F.3d at 1011–12
(“despite what the ordinary observer might see, the
copyright laws preclude appropriation of only those
elements of the work that are protected by the copy-
right.”).
Nevertheless, when viewing these elements in
combination, Hobbs has not plausibly alleged that
“Nikita” infringes on “Natasha” because the two
works do not share any unique features that “give
rise to a breach of the duty not to copy another's
work.” Peters, 692 F.3d at 633–34; see Selle, 741
F.3d at 904. Moreover, there are many dissimilarit-
ies between the two songs, including that “Natasha”
is about a man from the United Kingdom and an
Ukrainian woman who met, but never had a chance
after the woman sailed away. Whereas, “Nikita” is
about an East German woman looking through the
wires of the Berlin wall with guns and gates hold-
ing her in and soldiers guarding the area. Also, it is
apparent from the lyrics in “Nikita” that the man
and woman never met. In short, the songs' lyrics are
different in content and tell different stories. See
Peters, 776 F.Supp.2d at 751. Therefore, even as-
suming that the elements highlighted by Hobbs are
protectable, an ordinary reasonable person would
not conclude that Defendants unlawfully appropri-
ated Hobbs' lyrics. See Incredible Tech., 400 F.3d
at 1011. The Court thus grants Defendants' motion
to dismiss Hobbs' copyright claim.
II. State Law Claims—Counts II and III
Next, Defendants argue that the Court should
dismiss Plaintiff's state law claims for a construct-
ive trust and an accounting—both equitable remed-
ies under Illinois law—based on preemption. See 17
U.S.C. § 301(a). In his response brief, Hobbs does
not address Defendants' preemption argument. See
Steen v. Myers, 486 F.3d 1017, 1020 (7th Cir.2007)
(absence of discussion in legal memoranda amounts
to abandonment of claims). For the sake of com-
pleteness, however, the Court will determine
whether the Copyright Act preempts Hobbs' state
law claims for equitable relief.
*8 “The Copyright Act preempts ‘all legal and
equitable rights that are equivalent to any of the ex-
clusive rights within the general scope of copyright
as specified by section 106’ and are ‘in a tangible
medium of expression and come within the subject
matter of copyright as specified by sections 102 and
103.’ ” Seng–Tiong Ho, 648 F.3d at 500 (quoting
17 U.S.C. § 301(a)). The Seventh Circuit has
“distilled from the language of § 301 two elements:
‘First, the work in which the right is asserted must
be fixed in tangible form and come within the sub-
ject matter of copyright as specified in § 102.
Second, the right must be equivalent to any of the
rights specified in § 106.’ ” Id. (quoting Baltimore
Orioles, Inc. v. Major League Baseball Players
Ass'n, 805 F.2d 663, 674 (7th Cir.1986)).
Because the material to which Hobbs asserts
rights—the lyrics of the song “Natasha”—are ex-
pressions in tangible form, the first element of pree-
mption is satisfied. See 17 U.S.C. § 101 (“A work
is ‘fixed’ in a tangible medium of expression when
its embodiment in a copy or phonorecord, by or un-
der the authority of the author, is sufficiently per-
manent or stable to permit it to be perceived, repro-
duced, or otherwise communicated for a period of
more than transitory duration.”); see also Johnson
v. Cypress Hill, 641 F.3d 867, 870 n. 5 (7th
Cir.2011) (“a ‘composition’ copyright [ ] protects
rights in the underlying work, i.e., the music and, if
applicable, lyrics.”) (citing 17 U.S.C. § 102(a)(2)).
“The second element for preemption is that the
rights in the state law claims be equivalent to the
exclusive rights under the Copyright Act.”
Seng–Tiong Ho, 648 F.3d at 501. The exclusive
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rights set forth in the Copyright Act, include the
right to reproduce the copyrighted work, prepare
derivative works, distribute copies of the work, per-
form the copyrighted work publicly, and display the
copyrighted work publicly. See HyperQuest, Inc. v.
N'Site Solutions, Inc., 632 F.3d 377, 382 (7th
Cir.2011).
Here, Hobbs' claim for an accounting relies
upon 17 U.S.C. § 504, regarding Hobbs' recovery
of all profits that are attributable to Defendants' acts
of infringement. (Compl.¶ 44.) Furthermore, Hobbs
bases his constructive trust claim upon Defendants'
alleged infringement of his copyright of “Natasha.”
(Id. ¶ 42.) Because Hobbs' claims for state law rem-
edies are entirely based on his copyright claim, the
Copyright Act preempts them. See Evan Law
Group LLC v. Taylor, No. 09 C 4896, 2010 WL
5135904, at *7 (N.D.Ill.Dec.9, 2010) (“Copyright
Act preempts rights, including state common law
remedies, that are equivalent to an exclusive right
within the general scope of copyright as specified
in federal copyright law.”); see also Heriot v.
Byrne, No. 07 C 2272, 2008 WL 5397496, at *4
(N.D.Ill.Dec.23, 2008) (equitable accounting claim
preempted by Copyright Act). The Court therefore
grants Defendants' motion to dismiss the construct-
ive trust and accounting claims as alleged Counts II
and III of the Complaint.
CONCLUSION
*9 For the these reasons, the Court grants De-
fendants' motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) and dismisses this
lawsuit in its entirety with prejudice.
N.D.Ill.,2012.
Hobbs v. John
Slip Copy, 2012 WL 5342321 (N.D.Ill.), 2012
Copr.L.Dec. P 30,336
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EXHIBIT 15

Case: 1:12-cv-10198 Document #: 25-16 Filed: 02/06/13 Page 1 of 5 PageID #:246
Only the Westlaw citation is currently available.
United States District Court,
N.D. Illinois,
Eastern Division.
Grace Jo P. O'LEARY, Plaintiff,
v.
Mira BOOKS, a division of Harlequin Enterprises
Ltd.; Maureen Walters, Vice President, Curtis
Brown, Ltd.; Josie Schoel, Literary Assistant,
Curtis Brown, Ltd.; and Laura Caldwell, Author,
Defendants.
No. 08 CV 08.
Aug. 18, 2008.
Grace Jo P. O'Leary, Oak Park, IL, pro se.
Steven P. Mandell, Brendan J. Healey, John David
Fitzpatrick, Mandell, Menkes LLC, Stephen M.
Gallagher, Propes & Kaveny, LLC, Chicago, IL, for
Defendants.
AMENDED MEMORANDUM OPINION AND
ORDER
ROBERT W. GETTLEMAN, District Judge.
*1 Plaintiff Grace Jo P. O'Leary has filed a pro
se complaint
FN1
for copyright infringement pursu-
ant to the Copyright Act of 1976, 17 U.S.C. 101,
against defendants Mira Books, a division of Harle-
quin Enterprises Ltd.; Maureen Walters, Vice Pres-
ident, Curtis Brown, Ltd .; Josie Schoel, Literary
Assistant, Curtis Brown, Ltd.
FN2
; and Laura Cald-
well. Defendants Mira Books, Walters, and Cald-
well have filed motions to dismiss the complaint for
failure to state a claim pursuant to Fed.R.Civ.P.
12(b)(6), and defendant Caldwell has filed a motion
to dismiss pursuant to Fed.R.Civ.P. 12(b)(5) for im-
proper service of process. For the reasons discussed
below, the court grants defendants' 12(b)(6) mo-
tions and denies defendant Caldwell's 12(b)(5) mo-
tion as moot.
FN1. Plaintiff was represented by counsel
from March 18, 2008, through April 15,
2008. Both her complaint and her response
to defendants' Fed.R.Civ.P. 12(b)(5) and
12(b)(6) motions were filed pro se.
FN2. No appearance has been filed in the
instant case on behalf of defendant Schoel,
probably because the record does not in-
dicate that she has been served with pro-
cess. Because plaintiff fails to state a claim
against defendant Schoel, however, the
court will dismiss all claims against her
sua sponte.
FACTS
FN3
FN3. For purposes of a motion to dismiss,
the court accepts all well-pleaded allega-
tions as true and draws all reasonable in-
ferences in favor of the plaintiff. Travel
Around the World, Inc. v. Kingdom of
Saudi Arabia, 73 F.3d 1423, 1428 (7th
Cir.1996).
In October 2004, plaintiff began drafting a nov-
el entitled What If. Plaintiff completed her first
draft on January 27, 2005, and continued to revise
her manuscript thereafter. On August 31, 2005,
plaintiff attended a book signing for defendant
Caldwell, an author with whom plaintiff had some
familiarity.
FN4
Plaintiff told Caldwell about her
manuscript, and Caldwell suggested she contact de-
fendant Walters, her literary agent. Plaintiff called
Walters at Curtis Brown, Ltd., a literary agency,
and was given the e-mail address of defendant
Schoel, Walters's assistant. Plaintiff submitted a
copy of her manuscript to defendant Schoel on
September 30, 2005. On November 8, 2005, Schoel
sent plaintiff an e-mail stating that the manuscript
“didn't hold [her] interest” and that Curtis Brown
was not interested in publishing her novel. Schoel
did not return the copy of the manuscript to
plaintiff.
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FN4. According to plaintiff, her former
husband was a childhood friend of defend-
ant Caldwell's father. Additionally, in
1993, plaintiff worked for a short period in
a Chicago law firm where defendant Cald-
well was an associate.
On August 26, 2006, plaintiff wrote to defend-
ant Schoel to inform her that she had revised What
If. When defendant Schoel did not respond, plaintiff
concluded that some infringement of her
manuscript had taken place.
FN5
Plaintiff then
began a “search” for “suspected infringements” of
her manuscript by reading back issues of
“Publishers Weekly” and looking in Borders book-
stores in Oak Park and Chicago, Illinois. On August
11, 2007, plaintiff saw a notice that defendant Cald-
well would soon publish a new novel entitled The
Good Liar. Plaintiff purchased two copies of that
book, published by defendant Mira Books, on
December 23, 2007.
FN5. Plaintiff also claims that some in-
fringement of her work occurred after she
submitted a copy of her manuscript to a
“Chicago professor” for review and editing
at some point between January 28, 2005,
and February 2, 2005.
According to plaintiff, defendant Caldwell's
novel copies portions of What If. Plaintiff's
manuscript concerns an aging musician and his re-
lationship with a paralegal. Defendant Caldwell's
The Good Liar is about a counter-terrorist organiza-
tion called “The Trust.” Plaintiff has identified pas-
sages of Caldwell's novel that she believes have
been copied from her manuscript. These passages
demonstrate that both novels, among other things,
are set in the Chicago area, have characters with
blonde hair, discuss sex and alcohol, and make ref-
erences to bookcases and coffee.
DISCUSSION
Defendants Mira Books, Walters, and Caldwell
have filed motions to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6). The purpose of a motion to
dismiss is to test the sufficiency of the complaint,
not to decide the merits. Gibson v. City of Chicago,
910 F.2d 1510, 1520 (7th Cir.1990). Federal notice
pleading “requires ‘only a short and plaint state-
ment of the claim showing that the pleader is en-
titled to relief.’ “ Erickson v. Pardus, --- U.S. ----,
127 S.Ct. 2197, 167 L.Ed.2d 1081 (June 4, 2007)
(citing Bell Atlantic Corp. v. Twombley, --- U.S. -
---, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007).
When ruling on a motion to dismiss, When ruling
on a motion to dismiss, the court must accept all
factual allegations in the complaint as true and
draw all reasonable inferences in favor of the
plaintiff. Moranski v. General Motors Corp., 433
F.3d 537, 539 (7th Cir.2005). “Factual allegations
must be enough to raise a right to relief above the
speculative level.” Bell Atlantic, 127 S.Ct. at
1964-65.
Copyright Infringement
*2 Plaintiff claims that defendant Caldwell
copied portions of What If in her novel The Good
Liar, which defendant Mira Books then published.
To establish a claim of copyright infringement,
plaintiff must demonstrate (1) ownership of a valid
copyright, and (2) “copying” of the original con-
stituent elements of the work. JCW Investments,
Inc. v. Novelty, Inc., 289 F.Supp.2d 1023, 1031
(N.D.Ill.2003).
The parties do not dispute that plaintiff pos-
sesses a valid copyright. The court will therefore
focus only on the second prong of the test for copy-
right infringement. Plaintiff alleges that The Good
Liar directly copies portions of her manuscript.
Plaintiff, however, has provided no support for her
assertion; the comparison chart she provides her
complaint does not make reference to any directly
quoted passages.
FN6
Plaintiff may still establish
copying, though, by demonstrating that “the de-
fendant had access to the copyrighted work and the
accused work is substantially similar to the copy-
righted work.” Susan Wakeen Doll Co., Inc. v.
Ashton Drake Galleries, 272 F.3d 441, 450 (7th
Cir.2001). Substantial similarity exists when “the
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accused work is so similar to the plaintiff's work
that an ordinary reasonable person would conclude
that the defendant unlawfully appropriated the
plaintiff's protectible expression by taking material
of substance and value.” Wildlife Exp. Corp. v.
Carol Wright Sales, Inc., 18 F.3d 502, 508-09 (7th
Cir.1994).
FN6. Plaintiff does claim that both novels
use the phrase “guilty as charged.” Usage
of such a common phrase does not consti-
tute infringement. See, e.g., Bucklew v.
Hawkins, Ash, Baptie & Co., 329 F.3d 923,
929 (7th Cir.2003) (no infringement for
features that are “so rudimentary, so com-
monplace, standard or unavoidable that
they do not serve to distinguish one work
within a class of works from another”).
There is simply no substantial similarity
between the two written works at issue. As dis-
cussed above, plaintiff's manuscript concerns the
relationship between a rock star and a paralegal,
while defendant Caldwell's novel tells the story of a
counter-terrorist unit. Plaintiff, in fact, does not al-
lege that defendant Caldwell appropriated any plot
elements from her manuscript. Plaintiff claims only
that certain passages in the two novels are similar.
The passages identified by plaintiff as
“substantially similar,” however, are nothing more
than references to common things, places, and emo-
tional states. The fact that both written works refer
to coffee, bookcases, and blonde women hardly
makes them substantially similar; a random com-
parison of any two books at the local bookstore
would likely reveal the very same references.
Plaintiff cannot establish that the works at issue are
substantially similar. For that reason, the court
grants defendants' motions to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6).
Potential State Law Claims
Plaintiff alleges that defendant Mira Books has
“engaged in unfair trade practices and unfair com-
petition” by publishing The Good Liar. These alleg-
ations could possibly be construed as common law
claims for which plaintiff seeks equitable relief.
Defendant Mira Books asserts that these claims are
preempted by the Copyright Act.
The Seventh Circuit uses a two-part test to de-
termine whether federal copyright law preempts a
state law claim. First, the work in which the copy-
right is asserted must be “fixed in a tangible medi-
um of expression” and come within the subject mat-
ter of copyright as specified in Section 102 of the
Copyright Act. Baltimore Orioles, Inc. v. Major
League Baseball Players Ass'n, 805 F.2d 663, 674
(7th Cir.1986). Plaintiff's work is in written form,
and plaintiff has registered for a copyright, bringing
her manuscript within the subject matter of the
Copyright Act.
*3 Second, the right asserted by plaintiff must
be equivalent to any of the rights specified in 106
of the Act.
FN7
Id. at 677-78. Plaintiff asserts that
defendant Mira Books published and marketed The
Good Liar, which infringed on her right to repro-
duce and distribute What If as protected by Section
106 of the Act. Plaintiff's claim of “unfair trade
practices and unfair competition” are based on the
very same publishing and marketing of The Good
Liar and involve the same rights protected by Sec-
tion 106 of the Act. Because both prongs of the test
are satisfied, the court finds that any potential state
law claims alleged by plaintiff are preempted by the
Copyright Act.
FN7. Section 106 of the Copyright Act
grants the owner of a copyright the exclus-
ive rights to reproduce (whether in original
or derivative form), distribute, perform,
and display the copyrighted work.
CONCLUSION
For the reasons discussed above, the court
grants defendants' motions to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6). The court also dismisses the
complaint as to defendant Schoel. Defendant Cald-
well's 12(b)(5) motion is denied as moot. Both dis-
missals are with prejudice.
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N.D.Ill.,2008.
O'Leary v. Books
Not Reported in F.Supp.2d, 2008 WL 3889867
(N.D.Ill.)
END OF DOCUMENT
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EXHIBIT 16

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Only the Westlaw citation is currently available.
United States District Court,
E.D. Pennsylvania.
Brian A. DALEY
v.
GRANADA U.S. PRODUCTIONS, et al.
No. Civ.A. 02–2629.
Jan. 29, 2003.
MEMORANDUM OPINION AND ORDER
WEINER, J.
*1 The plaintiff brought this copyright in-
fringement action, claiming the defendants released
a television and video production entitled Princess
of Thieves which plaintiff contends infringes on his
copyrighted musical play, sHerwood. Presently be-
fore the court is the motion of the defendants for
judgment on the pleadings. Since resolution of the
motion requires us to examine documents outside
the pleadings, we will convert the motion to a mo-
tion for summary judgment and enter judgment in
favor of the defendants and against the plaintiff.
Defendants' motion is based solely on the
threshold issue of whether the copyrightable ele-
ments of the two works are so substantially similar
that plaintiff may proceed with a copyright in-
fringement action.
FN1
The Court can decide this
issue as a matter of law by viewing the two works.
The Court has viewed the two works, read all the
submissions by the parties and reviewed the parties'
expert reports. We conclude that the copyrightable
elements of the two works are not substantially
similar.
FN1. Defendants do not dispute that
plaintiff filed a copyright for his work, ori-
ginally titled Sherwood Knights and de-
scribed as a musical play on July 29, 1991
and subsequently filed additional copy-
rights covering songs and scripts with the
latest filing on August 29, 1997.
Summary judgment is appropriate in a case
where the issue is whether two works are substan-
tially similar if “no reasonable juror could find sub-
stantial similarity of ideas and expression[,]” view-
ing the evidence in the light most favorable to the
non-moving party. Shaw v. Lindheim, 919 F.2d
1353, 1355 (9
th
Cir.1990).
Because direct evidence of copying is seldom
available, a claimant may prove copying circum-
stantially by showing both that the two works at is-
sue are substantially similar and that the allegedly
infringing party had access to the allegedly in-
fringed work.
FN2
Whelan Associates v. Jaslow
Dental Lab, 797 F.2d 1222, 1231 (3d Cir.1986),
cert. denied, 479 U.S. 1031 (1987). Substantial
similarity is premised upon two findings. First,
there must be sufficient similarity between the two
works at issue to conclude that the alleged infringer
used the copyrighted work in producing the al-
legedly infringing work. See Whelan Assocs., 797
F.2d at 1232. This test, known as the extrinsic test,
focuses on the objective similarities in specific ex-
pressive elements, such as plot, themes, dialogue,
mood, settings, pace and sequence of events in the
two works. Kouf v. Walt Disney Pictures and Tele-
vision, 16 F.3d 1042, 1045 (9th Cir.1994). With re-
gard to the first finding, the trier of fact may be
aided by expert testimony. Second, there must be
sufficient intrinsic similarity for an ordinary lay ob-
server to conclude that there has been an unlawful
appropriation. Id. Because we find that plaintiff has
not raised a triable issue of fact under the extrinsic
test, we will grant summary judgment in favor of
the defendants.
FN2. For purposes of the motion for sum-
mary judgment only, defendants do not
contest the issue of access. However, this
admission of access is a factor to be con-
sidered in favor of plaintiff. Shaw v. Lind-
heim, 919 F.2d 1353, 1362 (9
th
Cir.1990);
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Sid and Marty Krofft Television Prods. Inc.
v. McDonald's Corp., 562 F.2d 1157, 1172
(9
th
Cir.1977).
General plot ideas and themes lie in the public
domain and are not protected by copyright law.
Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9
th
Cir.1984). In addition, all situations and incidents
which flow naturally from a basic plot premise,
known as scenes a faire, are also not entitled to
copyright protection. Berkic v. Crichton, 761 F.2d
1289, 1293 (9
th
Cir.1985). Copyright law protects a
writer's expression of ideas, not the ideas them-
selves. Feist Publications v. Rural Tel. Serv. Co.,
499 U.S. 340, 345–51 (1991); Shaw v. Lindheim,
919 F.2d 1353, 1356 (9
th
Cir.1990).
*2 There is no doubt that the two works do
share many of the same characters, as well as a sim-
ilar setting and certain common action sequences.
However, this sharing of common features is only
natural since both works are derived from the
Robin Hood legend which has long ago been part of
the public domain and which has been the subject
of numerous movies, television shows and comic
books. Thus, both works may properly contain
scenes of archery tournaments, sword fighting, Not-
tingham Castle, Sherwood Forest, appearances by
Robin Hood, his Merry Men, the evil Sheriff of
Nottingham and the tyrannical Prince John and
such themes as Prince John trying to displace his
brother, King Richard, the capture of Robin Hood
by evil forces and his release by the forces of good..
However, a simple viewing of the two works
reveals that they are entirely different with respect
to plot, themes, sequence of events, mood and set-
ting. sHerwood is a musical play with comic over-
tones. The vast majority of the story is told through
song and dance.
The play finds the evil Prince John trying to
take control of the throne from his brother, King
Richard. After Prince John imprisons King Richard,
Robin Hood's ex-wife, Maid Marian, seeks out
Robin Hood to persuade him to help King Richard.
Margaret, a witch, agrees to help Prince John by
killing Robin Hood to prevent him from saving
King Richard. In exchange, Prince John agrees to
obtain for Margaret the magic Sands of Time which
will give her eternal youth and power.
Robin Hood's teenage daughter, Robyn, is liv-
ing with her mother in Nottingham Castle. She does
not want to pursue the traditional feminine role of
her mother. Robyn has fallen in love with Junior,
one of Robin Hood's Merry Men from whom she
conceals her relationship to Robin Hood. Robyn de-
cides to join her father and the Merry Men in Sher-
wood Forest by disguising herself in her father's old
clothes. Her identity is revealed almost immediately
when her hat comes off while celebrating her defeat
of Junior in an archery contest. Because he fears for
her safety, Robin hood rejects Robyn's plea to live
in Sherwood Forest.
Meanwhile, Margaret the witch lures Robin
Hood into a cave where she and her vixens kill him
through supernatural forces. After informing Robyn
of her father's death, Junior assuages Robyn's desire
to be the equal of men by telling her that in his
view, women are the stronger sex. He also tries to
persuade Robyn to accompany him to save King
Richard. After overhearing Margaret describe how
she killed Robin Hood, Robyn declines Junior's of-
fer, stating she must avenge the death of her father.
Junior is subsequently killed by Prince John in a
sword fight at Nottingham Castle. Robyn goes to
Margaret's shack where she steals the Sands of
Time. Robyn then uses the magic powers of the
Sands of Time to bring Robin Hood and Junior
back to life. Alive once again, Robin Hood immedi-
ately slits Margaret's throat. Robyn then sprinkles
the Sands of Time on Margaret's wound which
automatically kills her. Robin Hood, Junior and
Robyn then go off to Nottingham castle where
Robyn puts a sack over Prince John's head, King
Richard is saved and the Merry Men prevail. Robin
Hood remarks how he underestimated his daughter
and that he could not have saved King Richard
without her help. Robin Hood then retires to a
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castle with Marian while their daughter Robyn joins
Junior in Sherwood Forest. Princess of Thieves, on
the other hand, is a made for television adventure
movie. which does not contain any singing and dan-
cing. The movie finds an aging Robin Hood facing
a crisis when he and Will Scarlett return from battle
and announce that King Richard is dying from
wounds sustained in the crusades. King Richard's
evil brother, Prince John, has been in charge of
England since the departure of King Richard. Robin
Hood realizes that Prince John will want to kill
Richard's illegitimate son, Prince Phillip, so that he
can assume the throne. Therefore, Robin Hood de-
cides that he and Will must escort Prince Phillip
from France to England in safety so that Prince
Philip can ascend to the throne.
*3 Meanwhile Robin Hood's daughter, Gwyn,
is a spirited, idealistic young woman who has
largely been ignored by her father because of her
gender. Desperate to impress her father, Gwyn
pleads with Robin to allow her to accompany him
to escort Prince Phillip. Robin Hood is adamant that
such a mission is far too dangerous for a woman
and sets out the next day, leaving Gwyn behind.
Gwyn is so frustrated that she cuts her hair and
dresses like a boy. However, before they can escort
Prince Phillip, Robin and Will are captured by the
Sheriff of Nottingham and taken to London. Gwyn
sees this as a perfect opportunity to impress her
father, but she must disguise herself as a young
man in order to ride with the Merry Men. Eventu-
ally, Gwyn uses her archery prowess and bravery to
safely escort Prince Phillip to England and to save
her father's life just as he is about to be shot at close
range by the Sheriff of Nottingham. At the same
time she convinces Prince Phillip, who would
rather lead a simple life, to accept his role as King
of England by pointing out how terribly the people
have been treated under Prince John's reign.
Though Gwyn and Philip acknowledge their love
for each other, they are unable to marry since Philip
becomes king and Gwyn is still a commoner. By
the end of the film Robin Hood acknowledges that
Gwyn is his equal and invites her to join him as his
partner in service to King Phillip.
In addition, many of the characters derived
from the Robin Hood legend are portrayed differ-
ently in the two works. For example in sHerwood,
Robin Hood is actually killed by a witch through
supernatural forces, and then brought back to life
by Robyn also through supernatural forces, while in
Princess, Robin Hood, although imprisoned and
tortured, is never actually killed and is ultimately
freed and saved by Gwyn's bravery and archery
prowess.
The Sheriff of Nottingham appears only briefly
in the beginning of sHerwood, but is the principal
villain in Princess, having frequent battles with
Robin Hood, Gwyn and Philip. Maid Marian ap-
pears throughout sHerwood, singing and dancing
and being reunited with Robin Hood at the end. By
contrast, Maid Marian does not even appear in
Princess, having died before the story begins. King
Richard the Lionheart appears throughout sHer-
wood, even claiming his right to the throne at the
climax of the second act. King Richard never even
appears in Princess having been only referred to as
dead or in the process of dying.
In addition, there are many characters which
are unique to each work. For example, in sHer-
wood, one of the central characters is Margaret the
witch who, along with her vixens, kill Robin Hood
through supernatural forces in order to obtain the
Sands of Time, which Robyn ultimately steals from
Margaret in order to bring Robin Hood and Junior
back to life. There is no character that is similar to
or even resembles Margaret in Princess of Thieves.
Another character who appears in sHerwood
but not in Princess of Thieves is Junior. Junior lives
in Sherwood Forest as one of the Merry Men. His
only role in sHerwood is as the romantic interest of
Robyn and his character does not develop as the
story progresses. At the end of sHerwood, Junior
and Robyn have a romantic relationship. The only
character even remotely similar in Princess of
Thieves is Prince Philip who is the rightful heir to
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the throne. Philip, unlike Junior, is forced to con-
ceal his identity through much of the film because
his life is in danger. The character of Prince Philip
evolves throughout the story as Gwyn is able to
change his personality from that of a selfish,
spoiled individual to that of a leader who cares for
his countrymen.
*4 Plaintiff claims that his infringement claim
is based “on the specific, unique and original ex-
pression of the idea of the daughter of Robin Hood,
which is developed in detail in Plaintiff's work and
substantially copied by Defendants.” Plaintiff's Op-
position at 5, n .9. Specifically, plaintiff contends
that both works 1) focus on the father-daughter
conflict in which Robin Hood's daughter is desper-
ate to prove herself to her father who at first refuses
to accept his daughter as his equal but who in the
end recognizes her skills and character and 2) con-
tain a romantic interest involving Robin Hood's
daughter.
Of course, the idea of a fictional daughter of
Robin Hood, who embodies the characteristics of
Robin Hood and who proves herself the equal of
men and who falls in love did not originate with
plaintiff. In the 1959 film, Son of Robin Hood,
which the court has also viewed, the “son” is actu-
ally Robin Hood's daughter, “Deering Hood”, who
also must dress like a boy in order to prove she is
the equal of men. Deering Hood also opposes an
unjust ruler, Duke Simon des Roches. Deering
Hood also possesses many of the characteristics of
her father including her skill with a bow and arrow
which she uses to defeat the enemy in several
scenes. This film has been the subject of a re-
gistered copyright since 1959. See Exhibit B to De-
fendants Reply Brief.
Second, the themes of a young woman trying to
prove herself to her father who ultimately acknow-
ledges her as his equal and falling in love are
scenes a faire, or standard to any story of a young
woman coming of age.
Third, even if the idea of a fictional daughter of
Robin Hood falling in love while proving herself to
her father and to other men could somehow be
viewed as original and unique enough to be copy-
righted, we find after viewing the two works that
each expresses such a character in entirely distinct-
ive manners, including the manner in which the plot
is told, each daughter's motivation and each daugh-
ter's relationship to other characters in each story.
In sHerwood, Robyn has been raised in relative
luxury primarily by her mother, Maid Marian, in
Nottingham Castle. As a teenager, Robyn decides
to rebel against her mother's traditional feminine
lifestyle and dependence on men. Her primary mo-
tivation is to do something with her life and marry a
man who will treat her as his equal. Robyn does not
speak of having a conflict with her father or of
wanting to impress him. She also does not display
any social or political motivation. In order to prove
herself the equal of men, she decides to disguise
herself in her father's old clothes and hat and seek
adventure with her father's band of Merry Men. Her
passion to prove herself the equal of men begins to
fade, however, when Junior tells her that he views
women as the “stronger” sex, and makes reference
to the emotional strength of his grandmother.
In Princess of Thieves, Gwyn has been raised
in a humble lifestyle at the Abbey by Friar Tuck.
Her mother, Maid Marian, is already dead and
Gwyn has had little contact with her father. She has
befriended Froderick, a scholar in the Abbey who
does not appear at all in sHerwood. Angered by her
father's indifference to her and refusal to acknow-
ledge her skills, she leaves the Abbey dressed as a
boy. She also is socially and politically motivated
to liberate the people of England from the tyrannic-
al rule of Prince John.
*5 In sHerwood, Robyn is in love from the
start with a character named Junior, who we are
told is the son of Little John, a friend of Robin
Hood. In Princess, Gwyn sees Froderick as more of
a brother and is actually in love with Prince Philip
who does not appear at all in sHerwood. In Prin-
cess, there is somewhat of a love triangle as both
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Froderick and Prince Philip are in love with Gwyn,
but Gwyn can only love Prince Phillip.
In sHerwood, Robin interacts and sings with
her mother Marian, who does not appear at all in
Princess.
In sHerwood, Robyn's rescue of her father is
expressed through supernatural forces. She steals
the Sands of Time from Margaret and then assists
her father in killing her by sprinkling them on Mar-
garet's wound. In the ultimate scene, she merely
places a sack over Prince John's head. Robyn's
archery prowess is only seen in one scene where
she impresses the Merry Men by defeating Junior in
a contest by knocking over a sapling. Her prowess
has no impact on and plays no role in the outcome
of the story itself.
On the contrary, Gwyn's rescue of her father in
Princess is expressed in a natural and historical
fashion based on the Robin Hood legend. There are
no supernatural scenes in Princess. Moreover,
Gwyn's archery skills play a much more prominent
role. She wins a contest by splitting the Sheriff's ar-
row thereby gaining entry to the castle where her
father is being held captive. During a battle scene,
she saves Philip by shooting a guard in the hand.
Finally, during the ultimate battle scene, she shoots
down the Sheriff's arrow as it is heading straight for
Robin Hood, thus saving her father's life.
Similarly, the only act of kindness to the poor
that Robyn undertakes in sHerwood is to give a
poor woman her scarf. The only purpose behind
this act is to impress Junior. In Princess of Thieves,
on the other hand, Gwyn intercedes on behalf of a
young boy accused of stealing in a marketplace. To
distract the merchant and his wealthy customer,
Gwyn steals a bag of venison pies and gives them
to some poor children. Gwyn uses this incident to
make a political statement to Froderick about
Prince John's cruelty and injustice. Indeed, one of
Gwyn's primary motivations in Princess is to liber-
ate the people of England from the tyrannical rule
of Prince John. Robyn is not socially conscious and
her primary motivation is simply to prove she is the
equal of men.
Thus, while both works contain the idea of a
daughter of Robin Hood who tries to prove herself
the equal of men and who falls in love, each work
expresses that idea in a different manner and seems
to take a different path toward that end. Based on
the above discussion, it is our view that the two
works are not so substantially similar to conclude
that the defendants used the sHerwood in producing
the Princess of Thieves.
Our conclusion is bolstered by the findings of
defendant's expert, Robert A. Gorman. Mr. Gor-
man's curriculum vitae includes teaching Copyright
for over 37 years at the University of Pennsylvania
and other law schools, has authored a Copyright
casebook and a monograph on Copyright published
by the Federal Judicial Center. After viewing
videotapes of both sHerwood and Princess of
Thieves and the written scripts of both works, Pro-
fessor Gorman concluded that “the overwhelming
bulk, if not all, of the similarities, that exist
between sHerwood and Princess are .... part of the
public domain and may be freely copied .....” Ex-
pert Report of Robert A. Gorman at 2 (attached to
defendants' reply brief as Exhibit A.) It is further
the opinion of Professor Gorman “that there is no
character that has been originated by Mr. Daley and
delineated in the necessary measure of detail to jus-
tify copyright protection. In any event, there is little
or no overlap of characters and character develop-
ment between sHerwood and Princess.” Id. at 3. Fi-
nally, with respect to the alleged similarities
between Robyn and Gwyn, Professor Gorman states
that “[a] teen-age daughter of Robin Hood, seeking
to be accepted as a grown-up and the equal of her
male peers, is properly understood as a character
“idea” which different authors are permitted to
elaborate in their own varying ways-in the charac-
ters' behaviors, in their motivations, in their dia-
logue, in their relationships with other characters,
and in the manner in which they carry forward the
details of the plot. The ‘substantial similarity’ test
Page 5
Not Reported in F.Supp.2d, 2003 WL 21294986 (E.D.Pa.)
(Cite as: 2003 WL 21294986 (E.D.Pa.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case: 1:12-cv-10198 Document #: 25-17 Filed: 02/06/13 Page 6 of 7 PageID #:256
allows for these differing ‘expressions' of character
‘ideas,’ and I conclude that such is the case here, in
the comparison of Robyn and Gwyn.” Id. at 4.
*6 Plaintiff's expert on the other hand is Bryan
Scott who describes himself as an Emmy-award
winning professional writer and television produ-
cer. Significantly, Mr. Scott does not state that he
viewed the videotapes of the two works, but only
that he read the scripts. He also does not compare
the two works in terms of plot, incidents or charac-
ters, but only conclusory opines that “there is not
doubt in my mind that the original concepts, which
are under protection by copyright law, have been
copied.” Expert Report of Bryan Scott at 2
(attached to Plaintiff's Opposition Brief as Exhibit
A.). He bases his conclusion largely on the fact that
plaintiff's work has an earlier copyright date and
had been performed in public venues prior to the
formation of the script for defendants' work. As a
result, we find the expert opinion of Robert Gorman
to be much more persuasive than that of Bryan
Scott.
For the foregoing reasons, judgment will be
entered in favor of the defendants and against the
plaintiff.
ORDER
The motion of the defendants for judgment on
the pleadings (Doc. # 14) is converted to a motion
for summary judgment.
The motion of the defendants for summary
judgment (Doc. # 14) is GRANTED.
Judgment is ENTERED in favor of the defend-
ants and against the plaintiff.
IT IS SO ORDERED.
E.D.Pa.,2003.
Daley v. Granada US Productions
Not Reported in F.Supp.2d, 2003 WL 21294986
(E.D.Pa.)
END OF DOCUMENT
Page 6
Not Reported in F.Supp.2d, 2003 WL 21294986 (E.D.Pa.)
(Cite as: 2003 WL 21294986 (E.D.Pa.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case: 1:12-cv-10198 Document #: 25-17 Filed: 02/06/13 Page 7 of 7 PageID #:257









EXHIBIT 17

Case: 1:12-cv-10198 Document #: 25-18 Filed: 02/06/13 Page 1 of 6 PageID #:258
Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern
Division.
S.T.R. INDUSTRIES, INC., a Delaware Company
d/b/i Illinois, Plaintiff,
v.
PALMER INDUSTRIES, INC., Palmer America,
Inc., and Peter Chuang, Defendants.
No. 96 C 4251.
April 9, 1999.
MEMORANDUM OPINION
GRADY, District J.
*1 Before the court is defendants' motion for
summary judgment on Count IV of plaintiff's
amended complaint. For the reasons explained be-
low, the motion is granted.
BACKGROUND
Plaintiff S.T.R. Industries, Inc. (“STR”), is a
Delaware corporation with its principal place of
business in Cary, Illinois. It distributes pool cues to
pool halls and billiard retailers. STR has two direct-
ors and shareholders: Mark Stoller, its president,
and Bernice Stoller, its secretary. Defendant Palmer
Industries, Inc. (“Palmer”), is a Taiwanese com-
pany that manufactures, purchases, and sells pool
cues and billiard accessories. Palmer America, Inc.,
is a California corporation that serves as Palmer's
distributor in the United States. Peter Chuang is the
President of Palmer Industries. Starting in 1992,
STR began purchasing pool cues and other products
from Palmer. In some cases, STR asked that Palmer
place particular graphic designs on the cues.
These graphic designs include the six pieces of
artwork that form the basis of STR's copyright
claims. Five of them appeared on cues listed in
STR's “Cues from the Crypt” series, once called the
“Morbid” series. These designs include: (1) “Ace of
Stealth”—QA212A, which depicts a caped skeleton
wielding a scythe against the background of an ace
of spades playing card; (2)
“Headhunter”—QA212B, which depicts a skull
partially covered by a dark cowl; (3) “The
Claw”—QA212C, which depicts a shriveled head
trapped in the claws of a scorpion; (4)
“Darkstar”—QA212D, which depicts a skeleton
with an oversized head, a tail, and a prominently
featured skeletal hand clutching an eyeball; and (5)
“Warlord”—QA212E, which depicts a skull resting
on a sword, a shield, and a pile of bones. Each of
the designs were reproductions of tattoos that Mark
Stoller found in a box he kept in his back room.
The sixth design at issue in this case is called
“Splash”—QA205G, which depicts a geometric
pattern. This design reproduces the pattern of a
piece of ribbon Bernice Stoller found at a fabric
store.
STR took several steps to incorporate these
designs into its line of pool cues. Mark and Bernice
Stoller chose the tattoos that would appear on the
cues. They provided the artwork and decided where
the tattoos would appear on the cues. They also
chose the color of each cue and its wrapping. In ad-
dition, Curtis Gandy, an independent graphic artist,
changed some of the background colors of the
“Morbid” series graphics.
FN1
FN1. The parties dispute the legal relation-
ship between Curtis Gandy and STR. We
address that dispute below.
In August 1995, the federal copyright office is-
sued a certificate of registration in the name of
Mark Stoller. Stoller does not know what artwork,
if any, was attached to that certificate.
FN2
The
copyright office cannot find any copies of the art-
work that was allegedly attached to this certificate.
On February 28, 1997, STR filed an amendment to
the certificate, claiming that STR, not Mark Stoller,
owned the copyright. The amendment explains that
the work was “made for hire at the time of cre-
ation.”
Page 1
Not Reported in F.Supp.2d, 1999 WL 258455 (N.D.Ill.)
(Cite as: 1999 WL 258455 (N.D.Ill.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case: 1:12-cv-10198 Document #: 25-18 Filed: 02/06/13 Page 2 of 6 PageID #:259
FN2. Although STR objects that informa-
tion about the registration is not material,
we believe it may shed some light on the
subject of the copyright claim. Mark
Stoller admits that he did not sign the certi-
ficate, and does not know who did. Bernice
Stoller, however, identifies the signature
on the certificate as belonging to Mark
Stoller. Neither remembers the circum-
stances surrounding the registration of the
copyright, so neither can aid us in determ-
ining exactly what artwork the certificate
purports to register for copyright protec-
tion.
*2 In 1995, Palmer reproduced the six designs
at issue in this case in the catalog for its own Wan-
ston brand of pool cues. Palmer circulated this cata-
log to people who inquired about its products at a
1995 trade show. After the distribution of less than
450 catalogs, Palmer used a black marker to ob-
scure the six designs in its remaining catalogs.
On July 12, 1996, STR filed suit against
Palmer on a variety of grounds.
FN3
On February
28, 1997, it filed the amended complaint that gives
rise to this motion. Because the parties apparently
dispute the scope of the copyright claim, we quote
relevant portions of the sections from the amended
complaint marked “Facts Common To All Counts”
and “Count IV—Copyright Infringement”:
FN3. Because Palmer's instant motion for
summary judgment addresses only the
copyright claims, we do not provide the
facts underlying the other claims here. We
have briefly set forth some of those facts in
a previous opinion, S.T.R. Indus., Inc. v.
Palmer Indus., Inc., No. 96 C 4251, 1996
WL 717468 (N.D.Ill.Dec. 9, 1996).
26. Prior to August 7, 1995, Mark Stoller, who
was then and ever since has been a citizen of the
United States, created original artwork
(hereinafter the “Artwork”) for incorporation into
pool cues. A copy of a brochure including pool
cues having the Artwork is attached hereto as Ex-
hibit “C” and made a part hereof.
27. The Artwork is copyrightable under the
Copyright Act.
28. The original Artwork has been duly registered
in the Copyright Office of the United States as
Registration No. TX 4–089–776, a copy of the
Certificate of Registration is attached hereto as
Exhibit “D” and made a part hereof. (See Exhibit
“D”).
29. The Plaintiff is the copyright owner, assignee
of the copyright owner, or owner of exclusive
rights under the Copyright Act, in the original
Artwork....
55. Defendants' acts as hereinabove alleged, con-
stitutes infringements of Plaintiff's copyrights in
the original Artwork under the laws of the United
States, as provided by Title 17 U.S.C. par. 501, et
seq.
STR asks for injunctive and monetary relief.
Palmer now moves for summary judgment on
Count IV of the amended complaint, pursuant to
Rule 56 of the Federal Rules of Civil Procedure. It
argues that STR has no copyright because it is not
the author of the artwork at issue here.
DISCUSSION
Summary judgment “shall be rendered forth-
with if the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine is-
sue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In considering such a motion,
the court construes the evidence and all inferences
that reasonably can be drawn therefrom in the light
most favorable to the nonmoving party. O'Connor
v. DePaul Univ., 123 F.3d 665, 669 (7th Cir.1997).
“A dispute over material facts is genuine if ‘the
evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” ’ Kennedy v.
Page 2
Not Reported in F.Supp.2d, 1999 WL 258455 (N.D.Ill.)
(Cite as: 1999 WL 258455 (N.D.Ill.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case: 1:12-cv-10198 Document #: 25-18 Filed: 02/06/13 Page 3 of 6 PageID #:260
Children's Serv. Soc'y, 17 F.3d 980, 983 (7th
Cir.1994) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). The court will enter
summary judgment against a party who does not
“come forward with evidence that would reason-
ably permit the finder of fact to find in [its] favor
on a material question.” McGrath v. Gillis, 44 F.3d
567, 569 (7th Cir.1995).
*3 Federal copyright law protects only original
works. To qualify for copyright protection, a work
must be original to its author. Feist Publications,
Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345
(1991). A finding of originality depends upon two
requirements: independent creation by the author
(as opposed to copying) and a minimal degree of
creativity. Id. The requisite level of creativity is ex-
tremely low, and the majority of works will meet it,
but they must possess “some creative spark.” Id. In
its classic formulation, creativity requires that the
author contribute “more than a ‘merely trivial’ vari-
ation, something recognizably ‘his own.’ Original-
ity in this context ‘means little more than a prohibi-
tion of actual copying.” ’ Alfred Bell & Co. v.
Catalda Fine Arts, Inc., 191 F.2d 99, 102–03 (2d
Cir.1951).
Despite the fact that this threshold is low, it is a
threshold nonetheless. Authorship requires more
than a contribution of “mere direction and ideas.”
Erickson v. Trinity Theatre, Inc., 13 F.3d 1061,
1071 (7th Cir.1994). “Ideas, refinements, and sug-
gestions, standing alone, are not the subjects of
copyrights.” Id. at 1072. The existence of this
threshold allows authors the right to copyright any
truly original expression, but “encourages others to
build freely upon the ideas and information con-
veyed by a work.” Feist Publications, 499 U.S. at
349–50.
Before we address whether STR can claim au-
thorship, we must resolve the apparent dispute re-
garding the work that STR has purported to copy-
right. In its amended complaint, STR alleges that
Palmer has infringed its copyright in the “original
Artwork.” First Amended Complaint, ¶ 55. This al-
legation references a previous allegation that Mark
Stoller “created original artwork (hereinafter the
“Artwork”) for incorporation into pool cues. A
copy of the brochure including pool cues having the
Artwork is attached hereto ....” Id., ¶ 26 (emphasis
added). The complaint clearly delineates between
the pool cues and the “Artwork” at issue.
Moreover, STR's Certificate of Registration and its
Amendment both state that the copyright pertains to
“original art work,” not pool cues. STR now argues,
however, that Mark Stoller “created the design of
the pool cues which were the subject of the Certi-
ficate of Registration.” S.T.R. Industries, Inc .'s Re-
sponse Memorandum to Palmer Industries, Inc.'s,
Palmer America, Inc.'s and Peter Chuang's Motion
For Partial Summary Judgment (“Plaintiff's Re-
sponse”) at 12. This eleventh-hour attempt to ex-
pand the subject of the alleged copyright does not
alter the facts as they appear in the amended com-
plaint or the certificate. Any purported copyright
applies only to the artwork, not to the entire pool
cues.
We now discuss whether STR's contribution to
the artwork was sufficiently original to create a new
copyright. Each of the designs on the STR cues are
reproductions of previously existing artwork. The
fact that these reproductions appear on pool cues
rather than on tattoos does not enhance their origin-
ality. See L. Batlin & Son, Inc. v. Snyder, 536 F.2d
486, 491 (2d. Cir.1976) (citation omitted) (“mere
reproduction of a work of art in a different medium
should not constitute the required originality for the
reason that no one can claim to have independently
evolved any particular medium”). Moreover, the al-
teration of background colors is a trivial modifica-
tion. See Hearn v. Meyer, 664 F.Supp. 832, 836
(S.D.N.Y.1987) (china plate reproduction of art-
work from “Wizard of Oz” not original, despite dif-
ferent coloring of background and characters). In-
deed, copyright office regulations exclude from
copyright “mere variations of typographic orna-
mentation, lettering or coloring.” 37 C.F.R. §
202.1(a). Conferring originality on such minor al-
terations would confuse copyright law and lead to
Page 3
Not Reported in F.Supp.2d, 1999 WL 258455 (N.D.Ill.)
(Cite as: 1999 WL 258455 (N.D.Ill.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case: 1:12-cv-10198 Document #: 25-18 Filed: 02/06/13 Page 4 of 6 PageID #:261
“overlapping claims.” Gracen v. Bradford Ex-
change, 698 F.2d 300, 304 (7th Cir.1983).
FN4
FN4. “Suppose Artist A produces a repro-
duction of the Mona Lisa, a painting in the
public domain, which differs slightly from
the original. B also makes a reproduction
of the Mona Lisa. A, who has copyrighted
his derivative work, sues B for infringe-
ment. B's defense is that he was copying
the original, not A's reproduction. But if
the difference between the original and A's
reproduction is slight, the difference
between A's and B's reproductions will
also be slight, so that if B had access to A's
reproductions the trier of fact will be hard-
pressed to decide whether B was copying
A or copying the Mona Lisa itself.” Id.
*4 STR argues that, in addition to providing an
idea about background colors, Mark Stoller also
chose “the color of the pool cues, the designs, the
placement of the designs on the cues, and the wrap-
ping.” Plaintiff's Response at 12. But Stoller's con-
tributions, other than choosing the designs and their
background colors, relate to the pool cues, not the
artwork. As we have already noted, changing back-
ground colors does not have sufficient originality to
justify a copyright. And the mere choosing of a
design does not rise even to the level of a variation,
much less a non-trivial one. Similarly, Bernice
Stoller's selection of the ribbon design for the
“Splash” cue does not have the originality required
to justify a copyright.
STR further argues that it owns the works be-
cause of Curtis Gandy's design contributions. After
arguing that Gandy's work was “for hire,” and
therefore owned by STR, however, plaintiff then
admits that Gandy's “contributions were not signi-
ficant enough to be copyrightable” and labels his
contributions as “graphic design work related to the
cue designs.” Plaintiff's Response at 10. We agree
with the latter assertion; Gandy's contribution to the
artwork does not meet the requisite originality
standard. At most, Gandy scanned the artwork into
a computer, “smoothed” the images, and, like Mark
Stoller, changed background colors. These trivial
contributions confer no authorship on Gandy. Even
if STR does hold all rights to Gandy's contribution,
those rights yield it little. Ownership of Gandy's
contribution does not translate to ownership of the
elements of the artwork that he did not create.
FN5
FN5. Because Gandy's contribution lacks
the originality to create a copyright, we
need not address whether his work was
“for hire.” Palmer argues that the lack of a
prior written agreement should preclude a
finding of “for hire” status. See Respect
Inc. v. Committee on Status of Women, 815
F.Supp. 1112, 1116–17 (N.D.Ill.1993).
However, as STR suggests, Gandy does
not dispute ownership, and it would be
“unusual and unwarranted to permit a
third-party infringer to invoke [the writing
requirement] to avoid suit for copyright in-
fringement.” Imperial Residential Design,
Inc. v. Palms Dev. Group, Inc., 70 F.3d 96,
99 (11th Cir.1995) (citing Eden Toys, Inc.
v. Florelee Undergarment Co., Inc., 697
F.2d 27, 36 (2d. Cir.1982)); see also
Budget Cinema, Inc. v. Watertower As-
socs., 81 F.3d 729, 733 (7th Cir.1996). We
also note that, after Palmer filed this mo-
tion, Gandy signed a written transfer of
any copyright he held.
Because STR fails the originality requirement,
we need not address the validity of the Certificate
of Registration. In light of our findings, the remain-
ing factual dispute surrounding the certificate is not
material.
CONCLUSION
For the foregoing reasons, we grant Palmer's
motion for summary judgment on Count IV of
plaintiff's amended complaint. Because we did not
rely on footnote 5 to Defendants' Memorandum in
Support of its Motion for Partial Summary Judg-
ment, we deny plaintiff's motion to strike as moot.
A status conference is set for June 15, 1999, at 9:30
Page 4
Not Reported in F.Supp.2d, 1999 WL 258455 (N.D.Ill.)
(Cite as: 1999 WL 258455 (N.D.Ill.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case: 1:12-cv-10198 Document #: 25-18 Filed: 02/06/13 Page 5 of 6 PageID #:262
a.m. to set this case for trial.
N.D.Ill.,1999.
S.T.R. Industries, Inc. v. Palmer Industries, Inc.
Not Reported in F.Supp.2d, 1999 WL 258455
(N.D.Ill.)
END OF DOCUMENT
Page 5
Not Reported in F.Supp.2d, 1999 WL 258455 (N.D.Ill.)
(Cite as: 1999 WL 258455 (N.D.Ill.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case: 1:12-cv-10198 Document #: 25-18 Filed: 02/06/13 Page 6 of 6 PageID #:263









EXHIBIT 18

Case: 1:12-cv-10198 Document #: 25-19 Filed: 02/06/13 Page 1 of 3 PageID #:264
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sateen
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sa·teen noun \sa-ˈtēn, sə-\
Definition of SATEEN
: a smooth durable lustrous fabric usually made of cotton in
satin weave
See sateen defined for English-language learners »
See sateen defined for kids »
Origin of SATEEN
alteration of satin
First Known Use: circa 1878
Rhymes with SATEEN
Andine, arene, baleen, beguine, Benin, benzene, benzine,
Bernstein, between, black bean, boreen, bovine, broad bean,
buckbean, caffeine, c...
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EXHIBIT 19

Case: 1:12-cv-10198 Document #: 25-20 Filed: 02/06/13 Page 1 of 3 PageID #:267
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satin weave noun
Definition of SATIN WEAVE
: a weave in which warp threads interlace with filling threads
to produce a smooth-faced fabric
See satin weave defined for kids »
First Known Use of SATIN WEAVE
circa 1883
Rhymes with SATIN WEAVE
apperceive, basket weave, by-your-leave, disbelieve, family
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misbelieve, on on...
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Page 2 of 2 Satin weave - Definition and More from the Free Merriam-Webster Dictionary
2/6/2013 http://www.merriam-webster.com/dictionary/satin%20weave
Case: 1:12-cv-10198 Document #: 25-20 Filed: 02/06/13 Page 3 of 3 PageID #:269

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