a substantial similarity between the protectible elements of the two works." Id. Thus, FASA must show that Playmates appropriated FASA's particular means of expressing an idea, not merely that Playmates expressed the same idea. The means of expression are the "artistic" aspects of a work; the "mechanical" or "utilitarian" features are not protectible. Fisher-Price, Inc., 25 F.3d at 123.
4. To assess the impact of certain differences, one factor to consider is the nature of the protected material and the setting in which it appears. Atari, 672 F.2d at 619.
5. Copying may be established by proof of access and "substantial similarity." Whether Playmates copied constituent elements of FASA's designs that were original can be seen as involving two distinct issues. First, FASA must show that Playmates as a factual matter, physically copied its MECH designs from FASA. Second, FASA must further show that Playmates copied so much of the protectible elements of FASA's design that the copying was "illicit," i.e., it constituted "unlawful" or "improper" appropriation. Fisher-Price, 25 F.3d at 122-23.
6. The act of copying may be proven by either direct or circumstantial evidence. Direct evidence of copying, for example an admission by the defendant or testimony of an eyewitness to the copying, is exceedingly rare. See 3 NIMMER ON COPYRIGHT § 13.01 [B], at 13-10 to 13-12 (1994). Thus, copying is often proven through circumstantial evidence consisting of: (1) access by the defendant to the plaintiff's work and (2) "probative similarity" between the two works. See Laureyssens v. Idea Group, Inc., 964 F.2d 131, 140 (2d Cir. 1992); Alan Latman, "Probative Similarity" as Proof of Copying: Toward Dispelling Some Myths in Copyright Infringement, 90 COLUM. L. REV. 1187, 1204-14 (1990); see also Tienshan, Inc. v. C.C.A. Intern (N.J.), Inc., 895 F. Supp. 651, 657 n.3 (S.D.N.Y. 1995). As explained by Professor Latman the concept of "probative similarity" is used as indirect proof of copying by showing a defendant's opportunity to come into contact with plaintiff's work and general similarities between the works, which under all the circumstances, make independent creation unlikely. Such similarities may or may not be substantial. These general similarities are offered as probative of the act of copying. See Latman, supra, at 1214.
7. This Court concludes that FASA has presented evidence which raises a presumption that Playmates had access to FASA's protected works. Access can be found to exist when the defendant had an opportunity to view the protected item. Wildlife Express, 18 F.3d at 508 n.5; Sid & Marty Krofft Television Prods., Inc. v. McDonalds Corp., 562 F.2d at 1172 (9th Cir. 1977); Smith v. Little, Brown & Co., 245 F. Supp. 451, 458 (S.D.N.Y. 1965). Furthermore, under the circumstances of this case, access can be established under the "corporate receipt doctrine." See Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 942 (8th Cir. 1992) (finding that physical propinquity between corporate employees can establish access from one corporate employee to another). Thus, if the Court finds similaritiesbetween the protectible aspects of the BATTLETECH MECHs and the EXO-SQUAD Toys exist that, in the normal course of events, would not be expected to arise independently in the two works and which therefore are probative of Playmates having copied as a factual matter from [FASA's] work," then we can infer that Playmates physically copied FASA's designs. See 3 NIMMER ON COPYRIGHT § 13.01 [B], at 13-13. Furthermore, because access has been established, the level of "probative similarity" necessary to show physical copying is diminished. See Aldon Accessories, Ltd. v. Spiegel, Inc., 738 F.2d 548, 553-54 (2d Cir.), cert. denied, 469 U.S. 982, 83 L. Ed. 2d 321, 105 S. Ct. 387 (1984).
8. In considering the issue of copying, this Court can consider: (1) testimony pertaining to the possibility of defendant's independent creation, including the dissimilarities between the works; (2) the existence of common features that are in the public domain; and (3) the prevalence of similar third-party works. Selle v. Gibb, 741 F.2d 896, 904-05 (7th Cir. 1984); QAD Inc. v. ALN Associates, Inc., 974 F.2d 834, 838 (7th Cir. 1992); Scott v. WKJG, Inc., 376 F.2d 467, 469 (7th Cir.), cert. denied, 389 U.S. 832, 19 L. Ed. 2d 91, 88 S. Ct. 101 (1967); Sanford v. CBS, Inc., 594 F. Supp. 713, 717 (N.D. Ill. 1984); Atari, Inc. v. North Am. Philips Consumer Electronics Corp., 672 F.2d 607, 614, n.6 (7th Cir.), cert. denied, 459 U.S. 880, 74 L. Ed. 2d 145, 103 S. Ct. 176 (1982).
9. In determining "probative similarity" the trier of fact may "dissect" the work to separate the similarities from the dissimilarities. Wildlife Express, Inc., 18 F.3d at 506; Scott v. WKJG, Inc., 376 F.2d 467, 469 (7th Cir. 1967); Stillman v. Leo Burnett Co., 720 F. Supp. 1353, 1358-59 (N.D. Ill. 1989). See also Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1991). It is also acceptable to consider both the protectible and unprotectible elements together rather than considering only the protectible elements, as the Court must do when determining "substantial similarity." See Fisher Price, 25 F.3d at 123.
10. The concept of "substantial similarity" involves a focus on whether the ordinary lay observer would overlook the dissimilarities between the artistic (protectible) aspects of the two works and would conclude that one was copied from the other. Fisher-Price, Inc., 25 F.3d at 123. Proof of both copying and unlawful appropriation are necessary to establish "substantial similarity" when that term is used as a term of art. Stillman v. Leo Burnett Co., Inc., 720 F. Supp. 1353, 1359 (N.D. Ill. 1989). A copy that does not unlawfully appropriate protectible expression cannot be substantially similar in the sense required to establish a violation. Id.; See also Atari, 672 F.2d at 614.
11. Determining whether two objects look similar is not a particularly demanding task; but divining whether protectible elements of two works are "substantially similar" has long been recognized as an inexact science. Fisher-Price, Inc., 25 F.3d at 123. As the greatly esteemed Judge Learned Hand long ago recognized:
Obviously, no principle can be stated as to when an imitator has gone beyond copying the "idea,"and has borrowed its expression." No one disputes that the copyright extends beyond a photographic reproduction of the design, but one cannot say how far an imitator must depart from an undeviating reproduction to escape infringement.