Case: 12-11227 Date Filed: 01/12/2015 Page: 1 of 31
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` [DO NOT PUBLISH]
`
`
`
`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 12-11227
`________________________
`
`D.C. Docket No. 1:09-cv-23494-PCH
`
`
`OLEM SHOE CORPORATION,
`a Florida corporation,
`
`
`
`ROBERT OLEMBERG,
`ISAAC OLEMBERG,
`NIEVES OLEMBERG,
`
`
`
` Plaintiff - Counter
`
` Defendant –Appellee,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Plaintiffs,
`
`
`
`
`
`
`
`
`
`
`
`versus
`
` Defendant - Counter
` Claimant – Appellant.
`
`
`
`
`
`
`
`
`
`
`WASHINGTON SHOE CORPORATION,
`a Washington corporation,
`
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 2 of 31
`
`
`________________________
`
`No. 12-11356
`________________________
`
`D.C. Docket No. 1:09-cv-23494-PCH
`
`
`OLEM SHOE CORPORATION,
`a Florida corporation,
`
`
` Plaintiff - Counter
` Defendant - Appellant,
`
`
`ROBERT OLEMBERG, et al.,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Plaintiffs - Counter
` Defendants,
`
`
`
`
`
`
`
`
`
`
`
`
`
`versus
`
`
`WASHINGTON SHOE CORPORATION,
`a Washington corporation,
`
`
`
`
` Defendant - Counter
` Claimant - Appellee.
`
`
`________________________
`
`No. 13-14728
`________________________
`
`D.C. Docket No. 1:09-cv-23494-PCH
`
`
`OLEM SHOE CORPORATION,
`a Florida corporation,
`
`
`
`
`2
`
` Plaintiff - Counter
` Defendant - Appellant,
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 3 of 31
`
`
`ROBERT OLEMBERG, et al.,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Plaintiffs - Counter
` Defendants,
`
`
`
`
`
`
`
`
`
`
`
`
`
`versus
`
`
`WASHINGTON SHOE CORPORATION,
`a Washington corporation,
`
`
`
`
`
`
` Defendant - Counter
` Claimant - Appellee.
`
`________________________
`
`Appeals from the United States District Court
`for the Southern District of Florida
`________________________
`
`(January 12, 2015)
`
`Before MARTIN, Circuit Judge, and EATON,* Judge, and HINKLE,** District
`Judge.
`
`EATON, Judge:
`
`
`In this copyright case, Washington Shoe Company1 seeks reversal of the
`
`District Court’s summary judgment ruling that Olem Shoe Corporation did not
`
`willfully infringe its copyrights. By its cross-appeal, Olem seeks reversal of the
`
`* Honorable Richard K. Eaton, United States Court of International Trade Judge, sitting
`by designation.
`
`** Honorable Robert L. Hinkle, United States District Judge for the Northern District of
`Florida, sitting by designation.
`
` Although the caption for this case and the docket refer to “Washington Shoe
`Corporation,” Washington Shoe, in its corporate disclosures and other papers, refers to itself as
`“Washington Shoe Company.”
`
`
` 1
`
`
`
`3
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 4 of 31
`
`
`Court’s holding that it infringed Washington Shoe’s copyrights, although not
`
`willfully. Olem also asserts that the District Court abused its discretion by denying
`
`its Rule 60(b)(3) motion for relief from the judgment and its related Rule 56(h)
`
`motion for sanctions.
`
`
`
`Because we find no error in the District Court’s holdings, we affirm.
`
`I.
`
`Washington Shoe designs and sells women’s rain boots, including the Zebra
`
`Supreme boots and the Ditsy Dots boots.2 In the Fall of 2009 and early 2010,
`
`counsel for Washington Shoe sent Olem cease-and-desist letters claiming
`
`infringement of copyrights for the designs of Washington Shoe’s Zebra Supreme
`
`and Ditsy Dots boots. Although the letters were accompanied by photographic
`
`representations of the boots, they did not identify, by registration number, the
`
`copyrighted designs themselves. After receiving the first letter, Olem contacted its
`
`intellectual property counsel, who then wrote Washington Shoe’s counsel
`
`
`2 In addition to claiming copyright protection for the designs of these two boots,
`Washington Shoe claims rights for its Rose Zebra Supreme design, the parent work of the Zebra
`Supreme design. Although the District Court ultimately granted summary judgment to
`Washington Shoe with respect to copyright infringement of both the Zebra Supreme and Rose
`Zebra Supreme designs, because Washington Shoe could not “show actual damages/profits as a
`result of or attributable to an infringement of Rose Zebra Supreme independently,” the District
`Court treated the two designs as “one work” for purposes of awarding damages. Here, we
`similarly treat the two designs as one work, “Zebra Supreme,” because, as the District Court
`stated, “infringement of the Rose Zebra Supreme design was based on the infringement of . . .
`Zebra Supreme.”
`
`
`
`4
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 5 of 31
`
`
`attempting to identify the designs that Washington Shoe claimed to have
`
`copyrighted:
`
`With respect to the merits of your client’s claims, however, you
`have provided us very little information to assess them and advice
`[sic] our client. While you have enclosed to your letter four pictures,
`there is little else. For example, we do not have a copyright certificate
`under which you would be claiming your client’s exclusive copyright
`rights nor a description of the features of the alleged product trade
`dress that have acquired secondary meaning and thus become
`protectable.
`We will appreciate receiving more information regarding your
`client’s claims so we can formulate a meaningful response to your
`letter.
`
`
`On November 9, 2009, Olem received a response from Washington Shoe
`
`identifying the copyright registration certificate number only for the Ditsy Dots
`
`design. Absent from the response was a sample of the copyrighted design. “In
`
`abundance of caution,” Olem cancelled a shipment of its polka dotted boots and
`
`then, after identifying “a zebra-like stripe boot design from the same supplier that
`
`had supplied [its] polka dots boot design,” and “to prudently avoid problems, Olem
`
`voluntarily stopped selling [its] zebra-like stripe boot design.” After learning that
`
`the United States Copyright Office could not locate the work submitted with the
`
`application for the Ditsy Dots design copyright registration, Olem filed an action
`
`for a declaration of non-infringement of copyrights and Washington Shoe
`
`counterclaimed to obtain relief for copyright infringement and other state and
`
`federal claims. Thereafter, on November 10, 2010, Washington Shoe filed
`
`
`
`5
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 6 of 31
`
`
`corrective supplementary copyright registrations to address issues raised by Olem,
`
`and by an advisory opinion issued by the Copyright Office, with respect to both the
`
`Ditsy Dots and Zebra Supreme designs.
`
`On summary judgment, the District Court dismissed all claims against Olem
`
`except for those for copyright infringement. As to those claims, the Court granted
`
`summary judgment to Washington Shoe for copyright infringement, but granted
`
`summary judgment to Olem on Washington Shoe’s claims of willful copyright
`
`infringement. Following a trial on damages, the jury returned a verdict in
`
`Washington Shoe’s favor for $27,395.40, of which $6,334.34 was for infringement
`
`of the Zebra Supreme work and the remainder was attributable to infringement of
`
`the Ditsy Dots design.
`
`Washington Shoe appealed the judgment to this Court and Olem cross-
`
`appealed. While the appeals were pending, Olem filed its motions for relief from
`
`the judgment and for sanctions. The appeals were then stayed pending the
`
`outcome of Olem’s motions. The District Court denied Olem’s motions on
`
`September 16, 2013, Olem appealed that denial on October 15, 2013,3 and the stay
`
`
`3 Although Olem also includes the Magistrate Judge’s report and recommendation and
`the Order Denying Motion to Strike in its notice of appeal, it does not address them in the
`arguments put forward in its brief, aside from its point that because “the Magistrate Judge did not
`conduct an evidentiary hearing to determine whether the declarations were the product of
`carelessness or a ‘conscious scheme to mislead the Court[,]’ [t]here is no evidentiary basis for
`that conclusion.” Because Olem either does not address, or does not support by making
`arguments and citing authorities, any issues it has with the Magistrate Judge’s report and
`recommendation or the Order Denying Motion to Strike, any such issues are waived. See
`6
`
`
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 7 of 31
`
`
`was lifted on October 18, 2013. On November 12, 2013, Olem moved to
`
`consolidate its appeals. On November 27, 2013, the motion was granted and the
`
`appeals were consolidated.
`
`II.
`
`In reaching its decision that Olem had infringed Washington Shoe’s
`
`copyrights, but had not done so willfully, the District Court noted that neither the
`
`parties nor the Court had identified “any Eleventh Circuit cases . . . establishing the
`
`standard for willfulness in copyright . . . infringement cases.” Although this Court
`
`stated in Cable/Home Communication Corp. v. Network Productions, Inc. that
`
`“‘[w]illfully,’ in the context of section 504(c)(2),4 means that the defendant ‘knows
`
`his actions constitute an infringement,’” Cable/Home Commc’n Corp. v. Network
`
`Prods., Inc., 902 F.2d 829, 851 (11th Cir. 1990) (emphasis added) (citations
`
`omitted) (quoting Broad. Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 236 (5th Cir.
`
`1988)), it is apparent that, based on the facts of that case, the holding did not reach
`
`the question of reckless disregard.
`
`
`
`Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“A passing
`reference to an issue in a brief is not enough, and the failure to make arguments and cite
`authorities in support of an issue waives it.” (citations omitted)).
`
` 4
`
` The Cable/Home Communication Court was referring to section 504 of the Copyright
`Act of 1976, which is a provision on remedies for copyright infringement. See 17 U.S.C. § 504.
`Specifically, section 504(c)(1) provides for the election of statutory damages and subsection
`(c)(2) allows “the court in its discretion [to] increase . . . award[s] of statutory damages” in cases
`involving willful infringement. See id. § 504(c)(1), (2).
`7
`
`
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 8 of 31
`
`
`Thus, the District Court adopted a rule from the Second Circuit, that
`
`willfulness can be found where a party “recklessly disregarded the possibility” that
`
`it was infringing a copyright. See Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283,
`
`288 (2d Cir. 1999) (quoting Twin Peaks Prods., Inc. v. Publ’ns Int’l, Ltd., 996 F.2d
`
`1366, 1382 (2d Cir. 1993)). In patent cases, however, the standard to establish
`
`willful infringement requires a patentee to show “that the infringer acted despite an
`
`objectively high likelihood that its actions constituted infringement of a valid
`
`patent . . . [and to] also demonstrate that this objectively-defined risk . . . was either
`
`known or so obvious that it should have been known to the accused infringer.” See
`
`In re Seagate Tech., LLC, 497 F.3d 1360, 1371 (Fed. Cir. 2007) (citing Safeco Ins.
`
`Co. of Am. v. Burr, 551 U.S. 47, 68, 127 S. Ct. 2201, 2215 (2007)); see also
`
`Farmer v. Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970, 1978 (1994) (“The civil
`
`law generally calls a person reckless who acts or (if the person has a duty to act)
`
`fails to act in the face of an unjustifiably high risk of harm that is either known or
`
`so obvious that it should be known.” (citing W. Page Keeton et al., Prosser and
`
`Keeton on the Law of Torts § 34, at 213–14 (5th ed. 1984); Restatement (Second)
`
`of Torts § 500 (1965))). Although the difference between “possibility” and “high
`
`likelihood” may not be large, for purposes of this opinion, we adopt the latter
`
`standard. Indeed, this is the standard urged by Washington Shoe:
`
`Under this standard, in its analysis of the recklessness of the
`infringer, the District Court should have determined if there was an
`
`
`
`8
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 9 of 31
`
`
`then
`infringed, and
`that Olem
`likelihood”
`“objectively high
`determined if the risk was either known to Olem, or so obvious that
`the risk should have been known to Olem.
`
`Washington Shoe argues that, although the District Court correctly granted
`
`summary judgment on the copyright infringement claims, the issue of willfulness
`
`should have gone to the jury. The significance of the ruling is that, should
`
`Washington Shoe ultimately elect to seek statutory rather than actual damages,
`
`those statutory damages could be enhanced by a finding of willfulness.5 See 17
`
`U.S.C. § 504(c)(2).
`
`We review de novo the District Court’s grant of summary judgment,
`
`applying “the same legal standards as those that controlled the [D]istrict [C]ourt.”
`
`Indus. Partners, Ltd. v. CSX Transp., Inc., 974 F.2d 153, 155 (11th Cir. 1992)
`
`(citing Martin v. Baer, 928 F.2d 1067, 1070 (11th Cir. 1991)). Summary judgment
`
`must be granted when “the movant shows that there is no genuine dispute as to any
`
`
`5 Under 17 U.S.C. § 504(a), a copyright owner is entitled to recover the “owner’s actual
`damages and any additional profits of the infringer,” or, in lieu of actual damages, the copyright
`owner may elect to recover statutory damages. “The election between actual and statutory
`damages is to be made ‘at any time before final judgment is rendered’” and “once a timely
`election is made to receive statutory damages[,] all questions regarding actual and other damages
`are rendered moot.” Jordan v. Time, Inc., 111 F.3d 102, 104 (11th Cir. 1997) (quoting 17 U.S.C.
`§ 504(c)). It follows that, ordinarily, if an election to receive statutory damages is not made prior
`to final judgment, the election is waived. In this case, however, the parties stipulated, prior to the
`trial on actual damages, that Washington Shoe would be able to elect statutory damages later,
`after appeal, if the willfulness determination were to be reversed.
`The amount of statutory damages recoverable by the copyright owner is set forth in
`section 504(c), which provides that “the copyright owner may . . . recover . . . a sum of not less
`than $750 or more than $30,000 as the court considers just.” 17 U.S.C. § 504(c)(1). Subsection
`(c)(2) allows “the court in its discretion [to] increase the award . . . to a sum of not more than
`$150,000” if it finds “that infringement was committed willfully.” Id. § 504(c)(2).
`9
`
`
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 10 of 31
`
`
`material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
`
`Civ. P. 56(a).
`
`As an initial matter, it is clear that the evidence to which Washington Shoe
`
`points does not create a triable issue of fact with regard to actual knowledge that
`
`Olem’s boots infringed Washington Shoe’s copyrights. That is, there is no
`
`evidence that Olem knew of Washington Shoe’s copyrights and chose to violate
`
`them. See Cable/Home Commc’n, 902 F.2d at 851 (holding that statutory award
`
`by district court for willful copyright infringement was not an abuse of discretion
`
`where there was “no doubt that [the infringer] knew that [the] program within [a] .
`
`. . chip was copyrighted and that he not only assisted in the production of pirate
`
`chips by giving funds and equipment . . . but also that he openly publicized and
`
`encouraged the purchase of these pirate chips as well as others . . . in blatant
`
`defiance of the copyright laws”). Further, we also find that the evidence to which
`
`Washington Shoe points does not raise a genuine issue of material fact with respect
`
`to willful infringement based on reckless disregard.
`
`As to this evidence, Washington Shoe first claims that the District Court
`
`should have found that its cease-and-desist letters, the first of which was sent in the
`
`Fall of 2009, provide evidence that Olem recklessly disregarded the risk that it was
`
`infringing Washington Shoe’s copyrights. In effect, Washington Shoe is arguing
`
`
`
`10
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 11 of 31
`
`
`that Olem’s receipt6 of the letters gave rise to an inference that Olem willfully
`
`infringed Washington Shoe’s copyrights. We agree with the District Court,
`
`however, that the receipt of the cease-and-desist letters does not create a triable
`
`issue of fact with regard to the question of willfulness because, as Washington
`
`Shoe concedes, “[i]t is . . . uncontroverted that the initial letters did not include
`
`reference to copyright registration numbers, or deposit copies.” Thus, although
`
`Washington Shoe may have claimed that it held the copyrights to the boots’
`
`designs, the initial letters, which had no copyright registration numbers, and the
`
`follow-up letters, which included registration numbers for claimed patents but no
`
`samples of the designs Washington Shoe claimed were infringed, provided nothing
`
`from which Olem could have determined that the claim was legitimate.
`
`In addition, Olem’s behavior after receiving the letters—stopping shipments
`
`and contacting Washington Shoe through its attorney to request more
`
`information—demonstrates that it took steps to determine whether Washington
`
`Shoe’s assertions were true. Indeed, as it turned out, Washington Shoe found it
`
`necessary to file supplementary copyright registrations in order to correct issues
`
`with both the Ditsy Dots and Zebra Supreme design copyrights that had been
`
`raised by the advisory opinion issued by the Copyright Office. Thus, based on
`
`
`6 While Washington Shoe argues in its brief that “[t]he sending of the cease and desist
`letters is . . . evidence that Olem knew there [was] someone asserting a copyright against them,
`and that there may [have been] an infringement issue with the Olem boots,” presumably, it is the
`receipt of the cease-and-desist letters by Olem that arguably constitutes meaningful evidence.
`11
`
`
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 12 of 31
`
`
`Olem’s receipt of the cease-and-desist letters, a reasonable jury could find that
`
`Washington Shoe had asserted a claim of copyright infringement, but could not
`
`find that Olem had sufficient credible information to provide “an objectively high
`
`likelihood” that it was infringing Washington Shoe’s copyrights.
`
`Washington Shoe next contends that the “evidence of . . . similarity,
`
`particularly evidence that the boots are identical, is a signpost that objectively
`
`increases the probability of infringement.” Here, however, more than a signpost is
`
`needed. That Olem’s boots are similar, indeed, as shall be seen, strikingly similar,
`
`to those of Washington Shoe does not necessarily give rise to the inference that
`
`Olem recklessly disregarded the likelihood that it was infringing Washington
`
`Shoe’s copyrights. That is, while striking similarity may be the basis for finding
`
`that a work has been copied, it is not evidence that Olem’s state of mind was that
`
`of reckless disregard of the risk that it was violating copyrights when it purchased
`
`and sold the infringing boots. This is because striking similarity can be used as a
`
`substitute for actual evidence of copying, but says little about the state of mind of
`
`the copier, i.e., that it willfully disregarded the rights of a copyright holder. See
`
`Robert Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305, 1322 (Fed. Cir. 2013)
`
`(Moore, J., concurring-in-part and dissenting-in-part) (arguing that, in the patent
`
`context, an “accounting” does not include a determination of willful infringement
`
`because “[a]n ‘accounting’ entails numerical calculations, not an inquiry into a
`
`
`
`12
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 13 of 31
`
`
`party’s state of mind in the face [of] an objectively high risk of infringement”);
`
`Boisson v. Banian Ltd., 280 F. Supp. 2d 10, 16 (E.D.N.Y. 2003) (“It is Plaintiff’s
`
`contention that the striking similarity between the copyrighted quilt and the
`
`infringing quilts warrants a finding of willfulness. Acceptance of this argument,
`
`however, would turn all infringements into willful infringements, which is clearly
`
`beyond the scope of the law.”).
`
`Washington Shoe’s assertion that the similarity of Olem’s boot designs to
`
`those of Washington Shoe “makes it more likely that the work was copied” is, of
`
`course, true. Washington Shoe has indicated no authority, however, that supports
`
`its argument that the similarity of the designs is evidence that the copying was
`
`willful. Generally, establishing a reckless state of mind in a copyright case
`
`requires a showing that the infringer possessed particular knowledge from which
`
`willfulness could be inferred, such as evidence demonstrating that the infringer
`
`was given samples of the copyrighted work prior to producing the infringing work.
`
`See Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 112, 113 (2d Cir. 2001)
`
`(finding “a sufficient basis for an inference by the jury that the infringements were
`
`willful” and that “the jury was free . . . to find that [the defendant]’s ignorance was
`
`due to recklessness,” given evidence that the defendant had received actual
`
`samples of the plaintiff’s jewelry from a store prior to selling jewelry that violated
`
`the plaintiff’s copyrights, and that the defendant had knowledge of the plaintiff’s
`
`
`
`13
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 14 of 31
`
`
`product line and “fail[ed] to investigate the possibility of intellectual property
`
`violations after” being told its product was similar to the plaintiff’s (citations
`
`omitted)). Thus, in this case, the similarity between the boots does not create a
`
`triable issue of fact with regard to willfulness on the part of Olem.
`
`Washington Shoe also points to Olem’s sourcing of its boots from China as
`
`evidence of reckless disregard. Washington Shoe thus argues that “[t]he fact that
`
`the boots and artwork were not designed by Olem coupled with the fact that the
`
`designs and boots were sourced in China increases the probability of
`
`infringement,” reasoning that “it is . . . well known that China is a source of
`
`infringing goods.” Although Washington Shoe notes that Olem did not design its
`
`boots and purchased them from China, it does not point to any record evidence to
`
`substantiate its claim that these facts “increase[] the probability of infringement”
`
`such that a jury could infer that Olem acted recklessly. This argument, if effective,
`
`would impute reckless disregard to any company purchasing and selling products
`
`from China that it did not design itself that turned out to be copyrighted by another.
`
`Thus, it is unpersuasive.
`
`Finally, in support of its willfulness argument, Washington Shoe suggests as
`
`evidence Olem’s “inability to point to any specific existing work . . . on which [its]
`
`works were based, created, or otherwise derived.” Washington Shoe reasons that
`
`“[t]he fact that [Olem] found no existing works increases the probability that the
`
`
`
`14
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 15 of 31
`
`
`works are original to Washington Shoe, and hence increases the possibility of
`
`infringement.” Put another way, Washington Shoe is arguing that a jury could find
`
`that, because Olem was unaware of the source of the boots it sold, it should have
`
`known that it was infringing Washington Shoe’s copyrighted designs, and
`
`therefore, Olem willfully infringed. This argument, too, is unpersuasive because it
`
`imputes a state of mind of reckless disregard to any party that purchases and sells a
`
`product without specific knowledge of the source of its design.
`
`Because there is no evidence in the record indicating that Olem actually
`
`knew it was infringing Washington Shoe’s copyrights and because the evidence
`
`cited by Washington Shoe does not raise a genuine issue of material fact with
`
`respect to reckless disregard, the District Court did not err in granting summary
`
`judgment to Olem on the issue of willfulness. Accordingly, we affirm as to this
`
`issue.
`
`III.
`
`Following Washington Shoe’s willfulness appeal, Olem cross-appealed the
`
`District Court’s holding that it had infringed Washington Shoe’s copyrights.
`
`Thereafter, Olem made its 60(b)(3) and 56(h) motions based on alleged
`
`misrepresentations in sworn statements7 filed in support of Washington Shoe’s
`
`
`7 The sworn statements to which Olem refers were made in an affidavit by Karl
`Moehring, Chief Financial Officer and owner of Washington Shoe, and in a declaration by
`Robert M. Moehring, president and owner of Washington Shoe. Both Karl and Robert
`15
`
`
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 16 of 31
`
`
`summary judgment motion. Fed. R. Civ. P. 60(b)(3); Fed. R. Civ. P. 56(h).
`
`According to Olem, these misrepresentations were relied upon by the District
`
`Court in its finding that Olem had “access” to the Zebra Supreme boots based on
`
`wide dissemination of the boots that had taken place “for years.” The relevance of
`
`this conclusion is that “access,” when combined with the District Court’s
`
`conclusion that Olem’s zebra pattern was “substantially similar” to Washington
`
`Shoe’s Zebra Supreme design, was important to the finding of copying8 in the
`
`District Court’s initial summary judgment opinion.
`
`A.
`
`
`
`Moehring “attested in their declarations that ‘[t]he Ditsy Dots and Zebra Supreme boots ha[d]
`been a huge commercial success, selling at national retailers such as Target® stores.’” “Robert
`Moehring further stated that ‘[t]he Zebra Supreme boots ha[d] been available across the country
`in Target® stores for years.’”
`
` In order to establish copyright infringement, Washington Shoe had to prove, first, that it
`had ownership of a valid copyright with respect to its works and, second, that Olem copied
`“constituent elements of the work[s] that [were] original.” See Feist Publ’ns, Inc. v. Rural Tel.
`Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296 (1991) (citing Harper & Row, Publishers,
`Inc. v. Nation Enters., 471 U.S. 539, 548, 105 S. Ct. 2218, 2224 (1985). Proof of copying could
`have been established either by the introduction of direct evidence to that effect or by using
`indirect evidence to show (1) that Olem had “access” to Washington Shoe’s copyrighted works
`and that Olem’s works were “substantially similar” to the copyrighted works or (2) by
`demonstrating that Olem’s works were “strikingly similar” to Washington Shoe’s copyrighted
`works. See, e.g., Progressive Lighting, Inc. v. Lowe’s Home Ctrs., Inc., 549 F. App’x 913, 918
`(11th Cir. 2013) (citing Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 824
`(11th Cir. 1982)); Baby Buddies, Inc. v. Toys “R” Us, Inc., 611 F.3d 1308, 1315 (11th Cir.
`2010); Corwin v. Walt Disney Co., 475 F.3d 1239, 1253 (11th Cir. 2007); Palmer v. Braun, 287
`F.3d 1325, 1329–30 (11th Cir. 2002) (citing Suntrust Bank v. Houghton Mifflin Co., 268 F.3d
`1257, 1265–66 (11th Cir. 2001); Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir.
`2000)).
`
` 8
`
`
`
`16
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 17 of 31
`
`
`A finding of copyright infringement requires proof of “(1) ownership of a
`
`valid copyright, and (2) copying of constituent elements of the work that are
`
`original.” Baby Buddies, Inc. v. Toys “R” Us, Inc., 611 F.3d 1308, 1315 (11th Cir.
`
`2010) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111
`
`S. Ct. 1282, 1296 (1991)) (internal quotation marks omitted). Because the
`
`evidence establishes both of these elements, we affirm the District Court’s grant of
`
`summary judgment to Washington Shoe on the copyright infringement claims.9
`
`1.
`
`As an initial matter, we find that Washington Shoe’s copyrights for the Ditsy
`
`Dots, Zebra Supreme, and Rose Zebra Supreme designs are valid and thus, that the
`
`first element of copyright infringement—ownership of a valid copyright—is
`
`satisfied.10 Pursuant to 17 U.S.C. § 410(c),
`
`
`9 As to the Ditsy Dots and Zebra Supreme designs, the District Court granted summary
`judgment to Washington Shoe on the copyright infringement claims in its Order on Cross-
`Motions for Summary Judgment. Summary judgment was later granted to Washington Shoe
`with respect to the Rose Zebra Supreme design in a separate Order on Supplemental Cross-
`Motions for Summary Judgment.
`
`10 Olem argues that Washington Shoe was not entitled to bring its copyright infringement
`actions, and thus, that Olem is entitled to summary judgment on those claims, because
`Washington Shoe did not disclose to the Copyright Office that all three designs at issue were
`created by the modification of prior works, which Olem maintains renders its copyright
`registrations invalid. In other words, Olem argues that Washington Shoe’s copyrights are invalid
`because all of the preexisting work leading to the designs may not have been disclosed to the
`Copyright Office. The Copyright Office, however, has construed its statute to require disclosure
`only when “a substantial amount of the material incorporated in the derivative work is in the
`public domain or has been registered or published previously.” See U.S. Copyright Office, The
`Compendium of U.S. Copyright Office Practices § 626.01(a) (2d ed. 1984) (amended 1988).
`This construction merits deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161
`17
`
`
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 18 of 31
`
`
`the certificate of a registration made before or within five years after
`first publication of the work shall constitute prima facie evidence of
`the validity of the copyright and of the facts stated in the certificate.
`The evidentiary weight to be accorded the certificate of a registration
`made thereafter shall be within the discretion of the court.
`
`
`17 U.S.C. § 410(c). Thus, Washington Shoe’s certificates of registration create a
`
`rebuttable presumption that the copyrights for its Ditsy Dots, Zebra Supreme, and
`
`Rose Zebra Supreme designs are valid. See Montgomery v. Noga, 168 F.3d 1282,
`
`1289 (11th Cir. 1999) (citing 17 U.S.C. § 410(c) (1994)) (finding that production
`
`of a certificate of copyright registration gave rise to a rebuttable presumption that
`
`copyright was valid). Because Olem has failed to show that Washington Shoe’s
`
`designs are not protectable, it has failed to rebut this presumption of validity. See
`
`id. at 1291 (finding that the district court did not clearly err in rejecting the
`
`defendants’ argument that a computer program was unprotectable because the
`
`defendants did not meet their burden of showing that modifications the plaintiff
`
`made to the computer program were not sufficiently original to support a valid
`
`copyright in a subsequent version as a derivative work). This leaves only the
`
`element of copying to be discussed.
`
`2.
`
`
`
`(1944) as the copyright law is “highly detailed” and it is apparent that the Copyright Office “can
`bring the benefit of specialized experience to bear on the subtle questions in this case.” See
`United States v. Mead Corp., 533 U.S. 218, 235, 121 S. Ct. 2164, 2175 (2001). Thus, none of
`Washington Shoe’s copyrights at issue were rendered invalid because all preexisting work was
`not identified.
`
`
`
`18
`
`

`
`Case: 12-11227 Date Filed: 01/12/2015 Page: 19 of 31
`
`
`As to copying, in its initial summary judgment opinion, the District Court
`
`found that Olem’s boot designs were substantially similar to Washington Shoe’s
`
`copyrighted designs and that Olem had access to those designs. “Access requires
`
`proof of ‘a reasonable opportunity to view’ the work in question.” Corwin v. Walt
`
`Disney Co., 475 F.3d 1239, 1253 (11th Cir. 2007) (quoting Herzog v. Castle Rock
`
`Entm’t, 193 F.3d 1241, 1249 (11th Cir. 1999)) (citing Ferguson v. Nat’l Broad.
`
`Co., 584 F.2d 111, 113 (5th Cir. 1978)). In some instances, proof that a copyright
`
`holder’s work was “widely disseminated” has been held to constitute
`
`circumstantial evidence