Case 5:07-cv-00133-GRJ Document 62 Filed 04/16/09 Page 1 of 13 PageID 427
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`OCALA DIVISION
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`KEVIN JENKINS, an individual,
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`Plaintiff,
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`v.
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`Case No. 5:07-cv-133-Oc-GRJ
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`CHARLES R. JURY, an individual, MARY
`ALICE TILLAPAUGH, an individual,
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`Defendants.
`______________________________________
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`MEMORANDUM DECISION AND ORDER
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`This lawsuit was brought by Plaintiff, Kevin Jenkins (“Jenkins”) against Charles
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`R. Jury (“Jury”) and Alice Tillapaugh (“Tillapaugh”) for copyright infringement and unfair
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`competition arising out of Defendants’ alleged infringement of Jenkins metal fish
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`sculptures. A non-jury trial was held before the undersigned on February 3, 2009. In
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`accordance with Fed. R. Civ. P. 52, the following constitutes the Court’s findings of fact
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`and conclusions of law.
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`I. DISCUSSION
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`Following the Court’s Orders on Defendants’ motions for summary judgment
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`(Docs. 28 & 38), the only claim remaining for trial was Jenkins’ claim against Jury for
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`copyright infringement. At trial, Jenkins clarified that he was no longer seeking
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`damages and was only seeking injunctive relief.
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`Case 5:07-cv-00133-GRJ Document 62 Filed 04/16/09 Page 2 of 13 PageID 428
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`A.
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`Factual Record
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`The following facts were established by a preponderance of the testimony1 and
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`documentary evidence offered and admitted into evidence. For many years, Jenkins
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`has designed and created metal fish sculptures. He has established a valuable
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`business based on demand for his metal fish sculptures. In the 1990's, Jenkins
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`designed and created three metal fish sculptures known as “Purple Tail”, “Short Big
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`Eye” and “Quillback Rockfish.”2
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`The “Purple Tail” is a completely imaginary sculpture as there is no such fish in
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`nature.3 In creating the “Purple Tail”, Jenkins incorporated different elements (i.e.,
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`shape of the fins or size of the tail) that customers at art shows had liked. The most
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`distinctive feature of the “Purple Tail” is its big sloping forehead. It also has
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`a dorsal fin with three forward-leaning rays and then three wider rays; a soft dorsal with
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`one spiny ray; an ovate tail; a pectoral fin with seven spiny rays that give the fin a
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`scalloped shape on the back side; an anal fin with one spiny ray on the bottom of it; and
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`a mouth at the bottom of its face.
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`Jenkins’ other two sculptures – “Short Big Eye” and “Quillback Rockfish” – are
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`considered fanciful because they are his own interpretation of fish that actually are
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`found in nature. There are significant differences between Plaintiff’s interpretation of
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`these fish and the actual fish.
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`1 Plaintiff presented the testimony of Mr. Jury and himself. Defendant offered no witnesses.
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`2 The first publication of “Purple Tail” was June 1, 1996. See Plaintiff’s Exhibit 4. The first
`publication of “Short Big Eye” was June 5, 1990. See Plaintiff’s Exhibit 6. The first publication of
`“Quillback Rockfish” was April 4, 1992. See Plaintiff’s Exhibit 8.
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`3 A photograph of the “Purple Tail” sculpture was admitted as Plaintiff’s Exhibit 1.
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`2
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`Case 5:07-cv-00133-GRJ Document 62 Filed 04/16/09 Page 3 of 13 PageID 429
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`Turning first to the “Short Big Eye”,4 the spiny dorsal has twelve spines while
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`there are only ten spines in nature. The soft dorsal is short and rounded, where as the
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`soft dorsal on the real fish is more angular and has a different angle in the back which
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`changes the shape of the fin. The caudal fin is rounded, while in nature the caudal fin
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`has squared corners. Further, the anal fin has three rounded rays in the front, while in
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`nature the rays are spiny. The pelvic fin has scalloping, where as the real fish does not.
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`The mouth, as well, is different in that it is not as upward-pointing as the mouth on the
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`real fish. Lastly, while the eye on the real fish can take up more than 50% of the face,
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`the eye on the sculpture is proportionally much smaller.
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`Jenkins’ “Quillback Rockfish” sculpture also differs from the quillback rockfish
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`found in nature.5 Specifically, the spiny dorsal rays are rounded while the real fish has
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`sharp quill-like rays connected with webbing; the soft dorsal is a different shape from
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`the real fish which is almost square; the caudal fin is rounded; the pelvic and pectoral
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`fins have scalloping, where as those fins on the real fish do not; the pectoral fin on the
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`real fish is more diamond-shaped; the eye on the real fish protrudes and is bulbous,
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`while the eye on the sculpture does not; and the mouth on the real fish is more upward-
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`pointing than the sculpture.
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`Since their creation and publication in the 1990's, Jenkins has displayed these
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`three fish sculptures in his gallery/studio in Homosassa, Florida, on his business
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`4 A photograph of the “Short Big Eye” sculpture was admitted as Plaintiff’s Exhibit 2.
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`5 A photograph of the Quillback Rockfish sculpture was admitted as Plaintiff’s Exhibit 3.
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`3
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`Case 5:07-cv-00133-GRJ Document 62 Filed 04/16/09 Page 4 of 13 PageID 430
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`websites,6 at art shows throughout the United States, in Norway, and in The Rain Barrel
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`Art Gallery in Islamorada, Florida.
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`Jury owns “World Shells & Co.” in Inglis, Florida. It is a wholesale business that
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`sells seashells, gifts and souvenirs as well as a retail gift shop that sells all types of
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`gifts. In 2002 or 2003, Jury began selling metal fish sculptures in his gift shop,
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`including purple tails or purple fins (hereinafter “accused purple tails”), big eyes or short
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`big eyes (hereinafter “accused short big eyes”), and quillfish or quillback rockfish
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`(hereinafter “accused quillback rockfish.”).7 Jury bought these accused fish from third-
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`party vendors – Tiffany’s Handcrafted, Natural Magic Environmental Trading Company,
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`and Hummingbird Imports International. These accused fish appeared remarkably
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`similar to Jenkins’ sculptures.
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`The accused purple tail not only shares the same name as Jenkins’ completely
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`imaginary “Purple Tail”, but it also shares most of the same elements. Indeed, both the
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`“Purple Tail” and the accused purple tail have a long sloping face with a mouth at the
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`bottom; a spiny dorsal fin with three forward-leaning rays and three spiny rays; a soft
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`dorsal fin with one spiny ray; an ovate caudal fin; an anal fin with one spiny ray in front;
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`a pectoral fin with seven scalloped rays; and the same gill line.
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`Likewise, Jenkins’ fanciful “Short Big Eye” and the accused short big eye and
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`Jenkins’ fanciful “Quillback Rockfish” and the accused quillback rockfish share a number
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`of similar elements – none of which occur in the real fish in nature. Specifically,
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`6 Plaintiff identified three internet addresses – www.fishsculpture.com, www.fishsculptures.com,
`and www.coppersculpture.com.
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`7 Photographs of these fish were admitted as Plaintiffs’ Exhibits13-18.
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`4
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`Case 5:07-cv-00133-GRJ Document 62 Filed 04/16/09 Page 5 of 13 PageID 431
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`Jenkins’ fanciful “Short Big Eye” and the accused short big eye both have twelve spiny
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`rays on the dorsal fin; a soft dorsal that was short and rounded; a rounded caudal fin; a
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`scalloped anal fin without sharp spines; a scalloped pelvic fin; a similarly positioned
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`mouth; and a proportionally smaller eye. Jenkins’ fanciful “Quillback Rockfish” and the
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`accused quillback rockfish both have the same rounded rays on the spiny dorsal fin; a
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`rounded and diminutive soft dorsal; a rounded caudal fin; scalloping on the pelvic and
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`pectoral fins; a mouth that is not upward looking; and a lack of barbs on the gill plate.
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`In May 2006, Plaintiff saw what he believed to be a copy of his “Purple Tail” at an
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`art festival in Fernandina Beach, Florida. The vendor told Plaintiff that he bought the
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`alleged copies of the “Purple Tail” from a store called “Real Deals” in Jefferson,
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`Georgia. Plaintiff contacted Real Deals and learned that the metal fish were imported
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`from a company in Haiti. Plaintiff subsequently learned of various importers who were
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`importing the fish from the company in Haiti, including Natural Magic Environmental
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`Trading Company from Islamorada, Florida, which is located only miles from the Rain
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`Barrel Art Gallery where Plaintiff had displayed his sculptures.
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`In mid-2006, Plaintiff was driving by Jury’s business and saw accused purple
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`tails, accused quillback rockfish and accused short big eyes hanging on racks in front of
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`the gift shop. At that point, Plaintiff filed for registration of copyrights for the “Purple
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`Tail,” “Quillback Rockfish” and “Short Big Eye.” The United States Copyright Office
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`subsequently issued to Plaintiff Certificates of Registration for the three sculptures.8
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`8 Copyright Certificate of Registration VA-1-370-920 was issued on August 27, 2006 for the
`sculpture entitled “Purple Tail.” See Plaintiff’s Exhibit 4. Copyright Certificate of Registration VA 1-380-
`660 was issued on September 14, 2006 for the sculpture entitled “Short Big Eye.” See Plaintiff’s Exhibit 6.
`Copyright Certificate of Registration Va 1-380-661 was issued on September 14, 2006 for the sculpture
`(continued...)
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`5
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`Case 5:07-cv-00133-GRJ Document 62 Filed 04/16/09 Page 6 of 13 PageID 432
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` On April 9, 2007, Jenkins filed the instant action. After suit was filed, Jury
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`received at least two shipments from Tiffany’s Handcrafted that included the accused
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`fish.9 On July 13, 2007, counsel for Jury wrote Jenkins’ counsel offering to stop selling
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`the accused fish if the action was dismissed and both parties would bear their own
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`attorneys fees and costs.10 Only two weeks later, on July 31, 2007, the accused fish
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`were still on display at Jury’s gift shop.11
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` B.
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`Legal Analysis
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`An action for copyright infringement requires proof that the plaintiff owns a valid
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`copyright and that the defendant has copied the protected work.12 Jenkins has
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`submitted a copy of his certificates of copyright registration for “Purple Tail”, “Short Big
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`Eye” and “Quillback Rockfish” as proof of his ownership of a valid copyright in these
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`sculptures.13 At trial, Jury did not seriously contest the validity of these copyrights.14
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`A certification of registration “made before or within five years after first
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`publication of the work shall constitute prima facie evidence of the validity of the
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`8(...continued)
`entitled “Quillback Rockfish.” See Plaintiff’s Exhibit 8.
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`9 See Plaintiff’s Exhibits 22/M -22/O.
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`10 See Plaintiff’s Exhibit 26.
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`11 See Plaintiff’s Exhibits 27A-27F.
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`12 Benson v. Coca-Cola Co., 795 F.2d 973, 974 (11th Cir. 1986.)
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`13 See Plaintiff’s Exhibits 5, 7 & 9.
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`14 While Defendant suggested in his trial memorandum that Plaintiff’s copyright was not valid
`because Plaintiff’s sculptures lacked the requisite creativity, defense counsel clarified at trial that
`Defendant’s challenge was focused on the second prong of the analysis – i.e., whether Defendant copied
`the protected work.
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`Case 5:07-cv-00133-GRJ Document 62 Filed 04/16/09 Page 7 of 13 PageID 433
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`copyright and of the facts stated in the certificate.”15 The evidentiary weight accorded a
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`certificate registered more than five years after the first publication “shall be within the
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`discretion of the Court.”
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`Here, even though Jenkins registered the copyrights more than five years after
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`publication of his sculptures, the Court has no difficulty according great weight to the
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`certificates of registration. As noted above, Jury did not seriously challenge the validity
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`of these copyrights at trial. Moreover, even if he had, the Court finds that Jenkins’
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`sculptures are exactly the sort of work that may be copyrighted.16 Indeed, the evidence
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`is undisputed that Plaintiff independently created the imaginary “Purple Tail,” fanciful
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`“Short Big Eye” and fanciful “Quillback Rockfish” and that they possess more than a
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`“minimal degree of creativity.”17
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`Accordingly, the Court concludes that the Certificates of Registration are prima
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`facie evidence that Jenkins has valid copyrights. Because Jury did not make any
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`argument or offer any evidence at trial to rebut the validity of these copyrights, the Court
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`finds that Jenkins has valid copyrights in “Purple Tail,” “Short Big Eye” and “Quillback
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`Rockfish.”
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`15 17 U.S.C. §410(c). Copyright registration is not a prerequisite to copyright protection. Rather,
`an author has a valid copyright in an original work at the moment it is “fixed in any tangible medium of
`expression. See 17 U.S.C. 102(a). Registration is not obligatory, although registration is a prerequisite to
`an infringement suit in certain circumstances and is a prerequisite to certain infringement remedies. See
`e.g., 17 U.S.C. §§408, 411, 412.
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`16 See 17 U.S.C. §102.
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`17 See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co,, 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d
`358 (1991.)
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`Case 5:07-cv-00133-GRJ Document 62 Filed 04/16/09 Page 8 of 13 PageID 434
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`Next, Jenkins must prove copying. Since there is seldom direct evidence of
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`copying, this element is usually established circumstantially, by showing that the person
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`who composed the defendant’s work had access to the copyrighted material and that
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`there is substantial similarity between the two works.18 If the plaintiff cannot show
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`access, he may still prevail by demonstrating that the works are “strikingly similar.”19
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`At trial, Jenkins did not attempt to prove access to the Plaintiff’s sculptures, but
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`instead, focused his argument on the “striking similarity” between the accused fish and
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`his sculptures.20 Nevertheless, the Court will briefly discuss access.
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`Since evidence of actual viewing or knowledge of the copyrighted work is virtually
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`impossible to prove, the Eleventh Circuit regards access as a “reasonable opportunity to
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`view” the copyrighted work.21 Jenkins brought suit against Jury but not the company in
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`Haiti that purportedly is manufacturing the accused fish nor against the third-party
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`vendors who sold the accused fish to Jury. There is no evidence that Jury himself
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`copied the sculptures or that he ever had contact with the Haitian company. Moreover,
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`Jenkins never displayed his art in Haiti and there is no evidence to suggest that any
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`18 Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1249 (11th Cir. 1999.)
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`19 Id. at 1248.
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`20 See e.g., Doc. 53 at 10 (Plaintiff’s Trial Brief) (“the evidence will unequivocally illustrate that
`certain similarities between [Plaintiff’s fish sculptures] and the accused metal fish sculptures are so
`“striking” that the similarities cannot satisfactorily be accounted for by a theory of coincidence,
`independent creation, prior common source, or any theory other than copying.”)
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`21 Herzog, 193 F.3d at 1249 (quoting Ferguson v. National Broadcasting Co., 584 F.2d 111, 113
`(5th Cir. 1978.))
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`Case 5:07-cv-00133-GRJ Document 62 Filed 04/16/09 Page 9 of 13 PageID 435
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`person associated with the Haitian company had access to Plaintiff’s sculptures.22
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`Under these circumstances, Plaintiff has not shown that Defendant had a “reasonable
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`opportunity to view” the copyrighted sculptures.
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` Although Jenkins did not demonstrate access he still, nonetheless, can establish
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`copying by showing that his sculptures and the accused fish are “strikingly similar.”
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`Striking similarity exists where the proof of similarity in appearance is “so striking that
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`the possibilities of independent creation, coincidence and prior common source are, as
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`a practical matter, precluded.”23
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`The Court has compared closely the accused fish and Jenkins’ sculptures and
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`has no difficulty finding that they are “strikingly similar.”24 This is especially true in the
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`case of the “Purple Tail” because it is a fictional fish that does not exist in nature. The
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`accused purple tail shares not only the same name with the “Purple Tail,” but also most
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`of the same elements. Side by side comparison of Jenkins’ “Purple Tail” and the
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`accused purple tail, shows that they both have a long sloping face with a mouth at the
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`bottom; a spiny dorsal fin with three forward-leaning rays and three spiny rays; a soft
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`dorsal fin with one spiny ray; an ovate caudal fin; one spiny ray in the front of the anal
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`fin; a pectoral fin with seven scalloped rays; and the same gill line. Because Jenkins
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`22 There is evidence that one of the company’s importing the accused fish from the Haitian
`company – Natural Magic Environmental Trading Company – is located in the same town as the Rain
`Barrel art gallery where Plaintiff’s sculptures have been on display. While this might seem suspicious to
`Plaintiff, it is simply too speculative to support a finding of access.
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`23 Corwin v. Walt Disney Co., 475 F.3d 1239, 1253 (11th Cir. 2007)(quoting Selle v. Gibb, 741 F.2d
`896, 901 (7th Cir. 1984.))
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`24 While some courts have required expert testimony to establish striking similarity, such testimony
`is unnecessary in this case because this is not a “technical” field in which the trier of fact is not able to
`make this determination. See Kent v. Revere, 1985 WL 6453, *7 (M.D. Fla. 1985.)
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`Case 5:07-cv-00133-GRJ Document 62 Filed 04/16/09 Page 10 of 13 PageID 436
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`created his “Purple Tail” from whole cloth, these similarities are especially compelling
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`and could not be the result of “independent creation, coincidence [or] prior common
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`source.”25
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` Unlike the “Purple Tail” which is imaginary, Plaintiff’s “Short Big Eye” and
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`“Quillback Rockfish” are “fanciful” interpretations of fish that actually occur in nature. A
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`copyright protects only the expression of ideas, and not the ideas themselves.26 As
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`such, the Court must consider whether the similarities between Jenkins’ sculptures and
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`the accused fish are the result of copying or are merely flowing from the fact that they
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`are sculptures of the same type of fish. However, after comparing side by side, Jenkins’
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`sculptures and the accused fish, the Court again has no difficulty concluding that they
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`are “strikingly similar.” The elements of Jenkins’ expressions of the “Short Big Eye” and
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`the “Quillback Rockfish” are significantly different from the way the fish actually appear
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`in nature and the accused fish differ from their natural counterparts in the same ways.
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`Indeed, Jenkins “Short Big Eye” and the accused short big eye share at least six
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`elements that are different from the short big eye that occurs in nature. They have
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`twelve spiny rays on the dorsal fin, instead of ten spiny rays in nature; the soft dorsal is
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`short and rounded, where as the soft dorsal on the real fish is more angular and has a
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`different angle in the back which changes the shape of the fin; the caudal fin is rounded,
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`where as the real fish has squared corners; the anal fin has rounded rays, instead of
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`sharp spines on the real fish; the pelvic fin is scalloped, where as the pelvic fin on the
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`25 See Corwin, 475 F.3d at 1253.
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`26 Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 n.1 (5th Cir. 1981.)
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`real fish is not; the mouth is not as upward-pointing as the mouth on the real fish; and
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`while the eye on the real fish can take up more than 50% of the face, the eyes on the
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`sculpture and the accused fish are proportionally much smaller.
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`Likewise, Plaintiff’s “Quillback Rockfish” and the accused quillback rockfish share
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`at least seven elements in common that do not occur in the real quillback rockfish.
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`Specifically, they have the same rounded rays on the spiny dorsal fin instead of the
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`sharp quill-like rays connected with webbing on the real fish; a rounded and diminutive
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`soft dorsal instead of the square shape on the real fish; scalloping on the pelvic and
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`pectoral fins, where as the fins on the real fish are not scalloped; a rounded caudal fin
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`instead of the square shape on the real fish; a mouth that is less upward looking than in
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`nature; and a lack of barbs on the gill plate.
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`Accordingly, the Court finds that Jenkins has established the second element of
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`his copyright infringement action – i.e., copying – by showing that the accused fish and
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`Jenkins’ copyrighted sculptures are “strikingly similar.” Defendant has not argued or
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`offered any evidence of independent creation or common source to refute the Court’s
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`finding of copying.27
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`In summary, Jenkins has proved the two elements – ownership of a valid
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`copyright and copying – necessary to establish his right to recover from Jury for
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`copyright infringement.
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`At trial, Plaintiff clarified that he is only seeking permanent injunctive relief
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`preventing Jury from infringing his copyrights. Having found liability for copyright
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`27 Donald Frederick Evans And Assoc., Inc. v. Continental Homes, Inc., 785 F.2d 897, 905 (11th
`Cir. 1986.)
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`infringement, the Court has the authority under the Copyright Act to grant injunctive
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`relief to prevent further violations of Plaintiff’s copyrights.28 The Copyright Act empowers
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`district courts to issue injunctions “on such terms as it may deem reasonable to prevent
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`or restrain infringement of a copyright.”29 An injunction is appropriate when there is “a
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`past infringement and a substantial likelihood of future infringement.”30
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`The Court has found that Jury infringed Plaintiff’s copyrights. Moreover, there is
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`substantial likelihood of future infringement. Notwithstanding the fact that Jury
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`represented that he no longer sells the accused fish, there was evidence at trial that
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`after suit was filed Jury received at least two shipments of the accused fish and he
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`continued to display them at his gift shop. In addition, the Court has no reason to
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`believe that the Haitian company has stopped manufacturing the accused fish or that
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`the third-party vendors have stopped importing the accused fish and selling them. For
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`these reasons, the Court find that a permanent injunction is appropriate in this case.
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`II. CONCLUSION
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` Accordingly, for the reasons discussed above, the Court finds that:
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`1.
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` Plaintiff, Kevin Jenkins ‘ Copyright Registration VA-1-370-920 issued
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`August 27, 2006 for the sculpture entitled “Purple Tail” is valid;
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`2.
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`Plaintiff, Kevin Jenkins’ Copyright Registration VA-1-380-660 issued
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`September 14, 2006 for the sculpture entitled “Short Big Eye” is valid;
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`28 17 U.S.C.A. §502(a).
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`29 Id.
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`30 Pacific and S. Co., Inc. v. Duncan, 744 F.2d 1490, 1499 (11th Cir. 1984.)
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`Case 5:07-cv-00133-GRJ Document 62 Filed 04/16/09 Page 13 of 13 PageID 439
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`3.
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`Plaintiff, Kevin Jenkins’ Copyright Registration VA-1-380-661 issued
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`September 14, 2006 for the sculpture entitled “Quillback Rockfish” is valid;
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`4.
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`Defendant, Charles R. Jury infringed Kevin Jenkins’ copyright registrations
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`VA-1-370-920 entitled “Purple Tail”, VA-1-380-660 entitled “Short Big Eye” and VA-1-
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`380-661 entitled “Quillback Rockfish”;
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`5.
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`Defendant, Charles R. Jury, his agents, servants, employees and all those
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`in privity with him are hereby permanently enjoined from infringing Kevin Jenkins’
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`copyright registrations VA-1-370-920 entitled “Purple Tail”, VA-1-380-660 entitled “Short
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`Big Eye”, and VA-1-380-661 entitled “Quillback Rockfish” in any manner including
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`reproducing the copyrighted works in copies; preparing derivative works based upon the
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`copyrighted works; and distributing copies of the copyrighted works to the public by sale
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`or other transfer of ownership, or by rental, lease, or lending;
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`6.
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`The Clerk is directed to enter final judgment in favor of Plaintiff, Kevin
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`Jenkins against Defendant, Charles R. Jury on Count One of the Amended Complaint
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`consistent with this Order; enter judgment in favor of Defendant Mary Alice Tillapaugh in
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`accordance with the Court’s order awarding attorney’s fees; and close the file.
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`IT IS SO ORDERED.
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`DONE AND ORDERED in Ocala, Florida, on April 16, 2009.
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`Copies to:
`All Counsel
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`13