NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
`File Name: 05a0757n.06
`Filed: August 29, 2005
`
`Case Nos. 04-1545, 04-2106, 04-1586
`
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`
`))
`
`))
`
`)
`)
`)
`)
`
`WINFIELD COLLECTION, LIMITED,
`
`Plaintiff-Appellant Cross-Appellee,
`
`v.
`
`GEMMY INDUSTRIES, CORP.,
`
`Defendant-Appellee Cross-Appellant.
`
`ON APPEAL FROM THE
`UNITED STATES DISTRICT
`COURT FOR THE EASTERN
`DISTRICT OF MICHIGAN
`
`))
`
`__________________________________________
`
`BEFORE: KEITH, BATCHELDER, and COLE, Circuit Judges.
`
`ALICE M. BATCHELDER, Circuit Judge. Winfield Collection Limited (“Winfield”)
`
`appeals the district court’s order granting summary judgment to Gemmy Industries Corp.
`
`(“Gemmy”) on Winfield’s copyright infringement action against Gemmy and dismissing the action.
`
`Winfield also appeals the district court’s award of attorney fees to Gemmy. Gemmy cross appeals
`
`a ruling by the district court refusing to strike certain evidence that Gemmy maintains was
`
`improperly withheld by Winfield during discovery. Because Gemmy’s allegedly infringing work
`
`is not substantially similar to Winfield’s work, and the district court’s refusal to strike the challenged
`
`evidence was harmless in any event, we affirm the judgments of the district court dismissing
`
`Winfield’s copyright claim and refusing to strike the disputed evidence. We conclude, however, that
`
`the district court abused its discretion in finding that Winfield’s complaint was frivolous, and we
`
`reverse the judgment awarding attorney fees to Gemmy.
`
`

`
`BACKGROUND
`
`Winfield produces two-dimensional craft designs, which consumers purchase to produce
`
`craft projects. These designs include instructions and images that explain how to create and
`
`assemble the particular project. In 1996, Winfield produced a design that enables consumers to craft
`
`a witch-like figure that appears to have just crashed into a tree, pole, or other structure (“Winfield’s
`
`witch”). The design calls for consumers to use plywood for the figure’s body/clothing, hat, socks,
`
`and boots; a mop for the hair; and a black plastic trash bag for the cape. The design further suggests
`
`how consumers should paint the plywood (e.g., lime and white stripes for the socks and “fire red”
`
`for the fingernails). Winfield sells only the designs for the crafts, not the materials for use in making
`
`the crafts. On July 23, 1996, Winfield obtained Copyright Registration No. VA-781-855 for its
`
`witch design, which included a photograph of a witch assembled according to that design.
`
`Winfield’s copyright application claims copyright protection for two-dimensional artwork, text, and
`
`photographs, and “[a]ll text and artwork of new patterns as listed.”
`
`Gemmy produces three-dimensional figures, not two-dimensional designs. Prior to 1996,
`
`Gemmy produced a decorative witch figure sitting on a broom, which consumers could hang in the
`
`air (“Gemmy’s hanging witch”). Gemmy copyrighted this witch, No. VA1-198-449. In addition,
`
`in 1998, Gemmy began to produce two witch figures that appear to have just crashed into a tree or
`
`similar object while flying on a broom (collectively, “Gemmy’s crashing witch”).1 One figure
`
`comes with a tree trunk; the other can be attached to a consumer’s existing tree, pole, or similar
`
`object; and both are the subject of Copyright Registration No. VA1-003-018. Gemmy’s hanging
`
`witch and crashing witch do not require consumers to craft or assemble the figures. Furthermore,
`
`1At no point does either party advance arguments involving any difference in appearance between the two
`Gemmy crashing witches.
`
`2
`
`

`
`Gemmy’s witches are not made from plywood and other household materials. The figures are
`
`finished products made from refined materials, with detailed features such as molded-plastic hands,
`
`socks, and boots; silk-like hair; molded-foam arms, legs, and body; and fabric hat, clothing, and
`
`cape.
`
`Winfield’s one-count complaint alleged that Gemmy’s crashing witch infringed the copyright
`
`of Winfield’s witch. Gemmy responded with a two-count counterclaim. First, Gemmy asked for
`
`a declaratory judgment of non-infringement; second, Gemmy argued that if the court were to
`
`determine that its crashing witch is substantially similar to Winfield’s witch, then Winfield’s witch
`
`is substantially similar to–and thus infringes–Gemmy’s earlier hanging witch.
`
`The district court granted summary judgment to Gemmy, holding that it did not infringe
`
`Winfield’s copyright. The court held that Gemmy did not have access to Winfield’s witch design;
`
`that, even if it did have access, Gemmy’s three-dimensional crashing witch was not substantially
`
`similar to Winfield’s two-dimensional witch design; and that even if Winfield had copyright
`
`protection in a three-dimensional depiction of its witch design, Gemmy’s crashing witch was not
`
`substantially similar. The district court therefore granted Gemmy a declaratory judgment of non-
`
`infringement. Because the court found no substantial similarity between Gemmy’s crashing witch
`
`and Winfield’s witch, the court dismissed Gemmy’s infringement counterclaim as moot, since it was
`
`premised on a finding of substantial similarity on Winfield’s infringement claim.
`
`On appeal, Winfield argues that Gemmy did in fact have access to Winfield’s design and
`
`photographs of Winfield’s assembled witch, primarily through catalogues mass mailed by Winfield.
`
`In addition, Winfield argues that the district court erred in refusing to accord copyright protection
`
`to the three-dimensional display of its witch. Winfield also argues that the district court erred by
`
`3
`
`

`
`according no originality to–and thus finding no protectible elements in–Winfield’s witch. Finally,
`
`Winfield argues that the district court erred by basing its finding of no substantial similarity on the
`
`fact that Gemmy’s crashing witch was made of materials different from those making up Winfield’s
`
`witch. Gemmy cross appeals, arguing that the district court should have excluded Winfield’s
`
`catalogues from evidence because Winfield did not properly disclose them in response to Gemmy’s
`
`discovery requests. Winfield appeals the district court’s grant of attorney fees to Gemmy under 17
`
`U.S.C. § 505, arguing that even if the district court was correct in dismissing it, Winfield’s
`
`infringement claim was not frivolous. Finally, Gemmy requests, in two last-minute motions
`
`submitted to this court, that we supplement the record with certain evidence, and strike certain other
`
`evidence from the record, before deciding this case.
`
`ANALYSIS
`
`I.
`
`Standard of Review and Applicable Legal Standard For Copyright Infringement
`
`Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and
`
`admissions on file, together with the affidavits, if any, show that there is no genuine issue 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). Granting summary judgment in copyright infringement cases, “particularly in favor of a
`
`defendant, is a practice to be used sparingly, but a court may compare the two works and render a
`
`judgment for the defendant on the ground that as a matter of law a trier of fact would not be
`
`permitted to find substantial similarity.” Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003)
`
`(internal quotations omitted).
`
`To succeed in a copyright infringement action, a plaintiff must establish that it owned the
`
`copyrighted creation and that defendant copied it. Id. In this case, Winfield’s ownership of the
`
`4
`
`

`
`copyright on its witch design is not disputed; thus, whether Gemmy copied Winfield’s witch is the
`
`only copyright issue in the case. In cases where there is no direct evidence of copying, a plaintiff
`
`may establish an inference of copying by showing 1) defendant’s access to the allegedly infringed
`
`work and 2) a substantial similarity between the two works at issue. Id. at 853-54. The district court
`
`held that Winfield failed to establish either of these elements.
`
`II.
`
`The Extent Of Winfield’s Copyright Protection
`
`In order to determine whether Winfield’s copyright was infringed, we must decide, as a
`
`threshold matter, the extent of Winfield’s copyright protection in its witch. The district court held
`
`that Winfield’s copyright protection extended only to its witch design, not to the figure crafted from
`
`that design. Nonetheless, Winfield’s copyright registration included not only its design, but a
`
`photograph of a witch assembled according to that design. In addition, Winfield’s registration
`
`indicates the “nature of authorship” as, inter alia, photographs. Therefore, Winfield clearly sought
`
`copyright protection not only in its witch design, but in the three-dimensional witch constructed
`
`according to the instructions in that design.
`
`In limiting protection to the design, the district court cited several cases involving clothing,
`
`in which courts refused to accord copyright protection to the actual articles of clothing, despite
`
`recognizing protection for the clothing designs. Not only were these all district court opinions from
`
`other circuits, they were all cases in which the court’s decision rested upon, to great extent, a
`
`specific problem: namely, that giving copyright protection to clothing, which has a utilitarian
`
`function, would allow for the protection of patent-like features without having to fulfill the rigorous
`
`standards for obtaining a design patent. See Jack Adelman, Inc. v. Sonners & Gordon, Inc., 112
`
`F.Supp. 187, 188-89 (S.D.N.Y. 1934); Beaudin v. Ben and Jerry’s Homemade, Inc., 896 F.Supp.
`
`5
`
`

`
`356, 358 (D. Vt. 1995); Russell v. Trimfit, Inc., 428 F.Supp. 91, 93-95 (E.D. Pa. 1977). The
`
`decorative witches at issue in the instant case, however, are purely aesthetic, and thus have no
`
`patent-like features to argue against copyright protection.
`
`Robert R. Jones Assoc., Inc. v. Nino Homes, 858 F.2d 274 (6th Cir. 1998), a design
`
`architecture case that Gemmy cites on appeal, is similarly inapposite. Nino Homes involved an
`
`alleged infringer’s using plaintiff’s copyrighted architectural plans to construct homes similar to
`
`those constructed according to plaintiff’s plans. The Nino Homes court ruled that “one may
`
`construct a house which is identical to a house depicted in copyrighted architectural plans, but one
`
`may not directly copy those plans and then use the infringing copy to construct the house.” Id. at
`
`280. Gemmy points to Nino Homes for the proposition that while it is forbidden from copying
`
`Winfield’s design, Gemmy is free to copy the object constructed from that design. But as with the
`
`clothing cases, the outcome of Nino Homes was dependent upon the peculiar nature of houses as
`
`“useful” objects: i.e., utilitarian or functional creations whose protection sounds more appropriately
`
`in patent than in copyright. Throughout its analysis, the Nino Homes court explicitly and repeatedly
`
`acknowledged this problem of merging copyright into patent. See id. at 278-80. Furthermore, Nino
`
`Homes, like the clothing cases, relied upon Baker v. Selden, 101 U.S. 99 (1879), for the principle
`
`that copyright protection is not to be extended from patterns/drawings to the objects they describe.
`
`But Baker dealt with a book that described useful forms and modes of accounting: i.e., functional
`
`features more appropriate for patent protection than copyright. Even the Baker Court included the
`
`following caveat in its opinion:
`
`Of course, these observations are not intended to apply to ornamental designs, or
`pictorial illustrations addressed to the taste. Of these it may be said, that their form
`is their essence, and their object, the production of pleasure in their contemplation.
`
`6
`
`

`
`This is their final end. They are as much the product of genius and the result of
`composition, as are the lines of the poet or the historian’s period.
`
`Id. at 103-04.
`
`In the case before us, Winfield’s witch is, in Baker’s terms, a purely “ornamental design.”
`
`It is art, plain and simple; like a painting or a sculpture, its only function lies in being pleasing to
`
`the eye. Therefore, the reasoning behind the clothing and architecture cases clearly does not apply.
`
`The parties do not direct us to any cases where patterns or drawings instruct the creation of purely
`
`ornamental objects. We think, however, that the most useful paradigm is the case law affording
`
`copyright protection for two-dimensional drawings/cartoons to three-dimensional depictions that
`
`are substantially similar. See King Features Syndicate v. Fleischer, 299 F. 533 (2d Cir. 1924)
`
`(finding copying in defendant’s creating three-dimensional “Sparky” figure based on copyrighted
`
`two-dimensional cartoon); Geisel v. Poynter Prods. Inc., 295 F.Supp. 331 (S.D.N.Y. 1968)
`
`(according copyright protection to three-dimensional Dr. Seuss dolls based upon two-dimensional
`
`cartoon); Fleischer Studios, Inc. v. Freundlich, 5 F.Supp. 808 (S.D.N.Y. 1934) (according copyright
`
`protection to three-dimensional Betty Boop doll based upon two-dimensional cartoon).
`
`In the Sparky toy horse case, the Second Circuit said the following:
`
`We do not think it avoids the infringement of the copyright to take the substance or
`idea, and produce it through a different medium, and picturing in shape and details
`in sufficient imitation to make it a true copy of the character thought of by the
`appellant’s employee. Doing this is omitting the work of the artisan, but
`appropriating the genius of the artist.
`
`King Features, 299 F. at 535. Similarly, in the Betty Boop case, the court noted the very distinctive
`
`features of the cartoon girl and then said that defendants:
`
`did not make an exact copy of the embodiment of the plaintiffs’ character as depicted
`by Fleischer, but what they did make gives precisely the same impression because
`there is really no essential difference between the plaintiffs’ drawing and the
`
`7
`
`

`
`defendants’ doll except that the hair is somewhat differently arranged . . . The
`defendants’ doll, therefore, comes within the definition of a copy which is laid down
`in [the Sparky toy horse case].
`
`Fleischer Studios, 5 F.Supp. at 809.
`
`Under the reasoning presented in this line of cases, Winfield’s witch copyright–consisting
`
`of detailed patterns and photos of an assembled product–should encompass three-dimensional
`
`copyright protection. Otherwise, although there is no allegation that Gemmy did so in this case, a
`
`Winfield competitor could simply follow Winfield’s instructions to the letter and create the exact
`
`artistic product that Winfield developed through its own ingenuity, and then the competitor could
`
`sell that three-dimensional replica as its own. Or a competitor could reach the same result by closely
`
`studying the photographs in Winfield’s catalogues and using them to reverse-engineer a Winfield
`
`witch. In either case, to categorically refuse to extend copyright protection to a three-dimensional
`
`manifestation of Winfield’s witch is to allow a competitor theoretically to steal Winfield’s precise
`
`expression of its creative vision, thus chilling the very creative expression that copyright law is
`
`meant to foster.2
`
`III.
`
`Access
`
`Having decided that Winfield’s copyright protection extends to the actual witch decoration
`
`2Winfield argues at times that its three-dimensional assembled witch is a derivative work, which Winfield has
`the exclusive right to create. See 17 U.S.C. § 106(2). This argument is meritless for several reasons. First, it conflicts
`with Winfield’s better argument that its copyrighted design and photographs accord protection to three-dimensional
`copies (i.e., not derivative works). Second, Winfield’s three-dimensional witch is almost certainly not a derivative work;
`it involved not a scintilla of independent creativity, but merely employing physical labor to carry out the design
`instructions. See Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 909-10 (2d Cir. 1980) (noting that “to support a
`copyright the original aspects of a derivative work must be more than trivial,” and that although reproducing pre-existing
`works in a different medium involves some degree of manufacturing skill, that does not constitute originality for
`copyright purposes). And finally, even if Winfield’s witch were a valid derivative work spawned from its copyrighted
`design, Winfield would be precluded from suing to claim its infringement, since it has not registered its three-
`dimensional witch as a derivative work. See Murray Hill Publ’ns, Inc. v. ABC Communications, Inc., 264 F.3d 622, 632
`(6th Cir. 2001) (holding that “before an infringement suit can be sustained based on the derivative work, that derivative
`work must be registered”).
`
`8
`
`

`
`crafted from its design, we must apply the test for copyright infringement. The first question is
`
`whether Gemmy had access to Winfield’s witch in order to copy it. See Kohus, 328 F.3d at 853-54.
`
`“The access element of a copyright infringement claim is usually the less problematic.” Murray Hill
`
`Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 316 (6th Cir. 2004). Access
`
`requires the defendant’s seeing or having a reasonable opportunity to see plaintiff’s work and thus
`
`having the opportunity to copy it. See id. We have cited with approval the notion that evidence that
`
`a third party with whom both plaintiff and defendant were dealing had possession of plaintiff’s work
`
`is sufficient to establish access by the defendant. See id.
`
`The district court found that, although Winfield “explains how [Gemmy] had a reasonable
`
`opportunity to view figures crafted from [Winfield’s] design, [Winfield] neglects to establish how
`
`[Gemmy] had a reasonable opportunity to view the design itself,” and thus the court held that
`
`Winfield failed to satisfy the access element. Because Winfield’s copyright protection extends to
`
`the actual witch decoration crafted from its design and photographs thereof, however, the district
`
`court’s finding that Gemmy failed the access prong solely because it lacked access to Winfield’s
`
`design was erroneous. The district court found that Gemmy had access to photographs of Winfield’s
`
`assembled witch, on the basis of Winfield’s unrefuted affidavits swearing that photographs of its
`
`witch appeared in millions of catalogues distributed throughout the country. This was all that was
`
`necessary for Gemmy to have had the requisite access to make copying possible.
`
`IV.
`
`Substantial Similarity
`
`Once a plaintiff has established access, it must show substantial similarity between the two
`
`works at issue. See Kohus, 328 F.3d at 853-54. The district court found no substantial similarity
`
`between Winfield’s witch and Gemmy’s crashing witch for two basic reasons. First, the court held
`
`9
`
`

`
`that Winfield maintained copyright protection only in its two-dimensional witch design, and thus
`
`that Gemmy’s three-dimensional crashing witch could not possibly be substantially similar.
`
`Alternatively, the district court held that a witch constructed from Winfield’s design was still not
`
`substantially similar to a Gemmy crashing witch. While we do not agree that Winfield’s copyright
`
`protection was limited to its design, we do agree with the district court’s bottom-line conclusion that
`
`Gemmy’s crashing witch is not substantially similar to a witch crafted from Winfield’s design.
`
`This circuit adopted a two-step approach for substantial similarity in Kohus, 328 F.3d 848.
`
`The first step is to “filter out the unoriginal, unprotectible elements–elements that were not
`
`independently created by the inventor, and that possess no minimal degree of creativity.” Id. at 855.
`
`A helpful tool in performing this analysis is Judge Learned Hand’s famous abstractions test:
`
`Upon any work, and especially upon a play, a great number of patterns of increasing
`generality will fit equally well, as more and more of the incident is left out. The last
`may perhaps be no more than the most general statement of what the play is about,
`and at times might consist only of its title; but there is a point in this series of
`abstractions where they are no longer protected, since otherwise the playwright could
`prevent the use of his “ideas,” to which, apart from their expression, his property is
`never extended.
`
`Id. (quoting Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930)). This test does
`
`not lay out a concrete dividing line, but is a helpful methodological tool that can be used to identify
`
`a spectrum of options. Id.
`
`In performing the filtering process, the basic guidepost to keep in mind is that copyright only
`
`protects an author’s original expression; thus, courts must exclude as unprotectible any elements of
`
`the work that are not original. The originality requirement does not mean that an element must be
`
`novel or unique, only that it was independently created by the author. See id. at 853. In addition,
`
`courts must be careful to make the ever-difficult distinction between an author’s ideas and his
`
`10
`
`

`
`expression of those ideas. See id. at 855 (“It is axiomatic . . . that mere abstract ideas are not
`
`protectible, but the expression of an idea is.”) (citing Mazer v. Stein, 347 U.S. 201, 217 (1954)).
`
`More specifically, if there is essentially only one way to express an idea, then that idea and its
`
`expression are inseparable, and thus under the merger doctrine such expression is not protected. In
`
`addition, courts must filter out scenes a faire, which are those elements that follow naturally from
`
`the work’s theme, rather than from the author’s creativity. Id. at 856. Finally, if a work is to some
`
`degree functional, a court must filter out any elements dictated by efficiency. Id.
`
`Once the unprotectible elements have been filtered out, the second step is to determine
`
`whether the allegedly infringing work is substantially similar to the protectible elements of the
`
`original. Id. This analysis requires that the trier of fact determine substantial similarity from the
`
`perspective of the work’s target audience. Id. at 857. Normally, a copyright work’s target audience
`
`is the lay public, or the ordinary reasonable person, id., and in the case before us both parties agree
`
`on this as the intended audience. Therefore, expert testimony should not be required for this portion
`
`of the analysis. See id.
`
`The district court performed an originality analysis for Winfield’s three-dimensional
`
`witch–even though it did not deem it protected by Winfield’s design copyright–in which the court
`
`found that Winfield’s witch contained no original elements of expression. Winfield correctly argues
`
`that the district court erred in performing this originality analysis.
`
`The district court properly noted that in determining originality, it must filter out ideas,
`
`expression that is inseparable from the idea expressed (merger doctrine), elements common to the
`
`topic being depicted (scenes a faire), and anything functional. It was thus correct in noting that
`
`elements such as a flowing cape, curled boots, black clothing, and a broom are scenes a faire for a
`
`11
`
`

`
`witch, or at least so abstract as to constitute unprotectible ideas rather than particularized expression.
`
`Nonetheless, to the extent that the district court implies that just because these generalized elements
`
`are unprotectible, Gemmy could have produced an exact replica of Winfield’s witch–or even an
`
`exact replica of that witch’s hair, broom, cape, or clothing–it is incorrect.
`
`Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133 (2d Cir. 2004), a case cited by
`
`Winfield, is instructive. Mattel rejected the notion that vague doll features such as widely spaced
`
`eyes, upturned noses, and bow lips could never merit protection, stating that “[t]he proposition that
`
`standard or common features are not protected is inconsistent with copyright law.” Id. at 135. The
`
`Mattel court also said the following:
`
`There are innumerable ways of making upturned noses, bow lips, and widely spaced
`eyes. Even if the record had shown that many dolls possess upturned noses, bow
`lips, and wide-spaced eyes, it would not follow that each such doll–assuming it was
`independently created and not copied from others–would not enjoy protection from
`copying.
`
`Id. But then the Mattel court said something that is not so favorable to Winfield:
`
`Mattel’s copyright in a doll visage with an upturned nose, bow lips, and widely
`spaced eyes will not prevent a competitor from making dolls with upturned noses,
`bow lips, and widely spaced eyes, even if the competitor has taken the idea from
`Mattel’s example, so long as the competitor has not copied Mattel’s particularized
`expression. An upturned nose, bow lips, and wide eyes are the “idea” of a certain
`type of doll face. That idea belongs not to Mattel but to the public domain.
`
`Id. at 136. In other words, there has to be particularized similarity in the works’ features for
`
`copyright infringement, but just because that similarity might be encompassed within a more general
`
`idea unworthy of copyright protection does not mean that the more particularized similarity cannot
`
`constitute infringement.
`
`The district court in the case at bar made a mistake similar to that made by the district court
`
`in Mattel. The court reasoned that because elements such as flowing capes and black clothing are
`
`12
`
`

`
`scenes a faire and/or abstract ideas with regard to witches, Winfield’s witch’s cape and clothing (for
`
`example) lack originality and are thus entirely unworthy of protection. This broad proclamation is
`
`incorrect, for at some point Gemmy could make a flowing cape or black clothing that is so similar
`
`to Winfield’s cape and clothing as to constitute copying.
`
`But the Mattel analysis ultimately dooms Winfield’s case. To make its witch seem similar
`
`to Gemmy’s requires Winfield to describe the elements of its witch at a level of generality that is
`
`so abstract as to constitute scenes a faire for witches, or at least ideas rather than expression.
`
`Winfield’s flowing cape, black clothing, bent hat, and perpendicular broom are like the upturned
`
`noses, wide eyes, and bow lips in Mattel. These characteristics are too generalized by themselves
`
`to warrant protection, although the particular capes, clothing, hats, or brooms could theoretically be
`
`similar enough to constitute infringement. Winfield loses because, viewing its witch side-by-side
`
`with Gemmy’s crashing witch, the two are not even close to looking the same, apart from the
`
`generalized idea that they are both witches crashing into trees. Their hats, brooms, capes, hair,
`
`shoes, and colors are all significantly different. To the extent Gemmy has copied anything, it has
`
`copied Winfield’s idea of a crashing witch, not its particularized expression of that witch. See, e.g.,
`
`Beaudin, 896 F.Supp. 356 (finding no substantial similarity between two hats covered in Holstein
`
`cow patterns, where even though defendant admitted it took the idea from plaintiff’s hats, defendant
`
`had not actually copied the exact same pattern onto any of its hats).
`
`Winfield also argues that the district court erred by basing its finding of no substantial
`
`similarity on the stark differences in materials making up Winfield’s and Gemmy’s witches. The
`
`district court noted the following:
`
`[F]igures from [Winfield’s] design have a mop for the hair and a black plastic trash
`bag for the cape. In sharp contrast, [Gemmy’s] crashing-witch figure is not made
`
`13
`
`

`
`from plywood and household materials such as mops and plastic bags; rather, the
`figure is made from refined materials and have [sic] detailed features: molded-
`plastic hands, socks, and boots; silk-like hair; foam for the arms, legs, and body; and
`fabric for the hat, clothing, and cape. These stark differences preclude a finding that
`[Gemmy’s] crashing-witch figure is substantially similar to a figure crafted from
`[Winfield’s] crashing-witch design.
`
`We read this passage as merely stating an additional reason for not finding substantial similarity
`
`between Winfield’s and Gemmy’s witches. Not only do the witches look different, but they are
`
`made from very different materials that contribute to their different appearances. It is certainly not
`
`error to point out the different constituent materials in the context of determining that two works do
`
`not look the same. No matter what the focus, however, the important point is that Winfield’s and
`
`Gemmy’s witches are not substantially similar in appearance, which means that Winfield’s copyright
`
`infringement claim was properly rejected by the district court.
`
`V.
`
`Gemmy’s Cross Appeal On Discovery Issues
`
`Gemmy moved for the district court to strike several of Winfield’s exhibits attached to its
`
`summary judgment opposition brief, because Winfield allegedly failed to properly produce them in
`
`response to valid discovery requests. This handful of exhibits included examples of Winfield’s
`
`catalogues containing pictures of its assembled witch as an advertisement for selling the design, a
`
`chart compiled by Winfield describing the circulation of its various catalogues, and a district court
`
`opinion in a related case involving Winfield’s witch and a different defendant. The district court
`
`refused Gemmy’s motion, adopting as its reasoning a portion of Winfield’s brief in opposition, and
`
`Gemmy appeals this ruling.
`
`We review a district court’s evidentiary rulings for abuse of discretion. United States v.
`
`Brown, 367 F.3d 549, 554 (6th Cir. 2004). Regardless of the propriety of the district court’s refusal
`
`to strike the evidence, we fail to see any harm to Gemmy resulting from this decision. Even if the
`
`14
`
`

`
`district court were to have ignored the catalogues, Winfield would still have put forth sufficient
`
`proof of access, as Gemmy never disputed that millions of catalogues had been in circulation with
`
`pictures of Winfield’s witch. And as to the other district court opinion, if it is “evidence” at all,
`
`there is no indication that the district court in this case relied on it. We find no abuse of discretion
`
`here. See Fed. R. Civ. P. 37(c)(1) (allowing the district court to refuse to exclude evidence if lack
`
`of prior disclosure was harmless).
`
`VI.
`
`Attorney Fees
`
`Winfield also appeals the district court’s decision to award attorney fees to Gemmy
`
`pursuant to 17 U.S.C. § 505. We review a district court’s decision to grant or deny fees for abuse
`
`of discretion. Murray Hill Publ’ns, Inc. v. ABC Communications, Inc., 264 F.3d 622, 639 (6th Cir.
`
`2001); see 17 U.S.C. § 505 (providing that “the court in its discretion may allow the recovery of full
`
`costs . . . [including] a reasonable attorney’s fee to the prevailing party as part of the costs”). The
`
`Supreme Court has approved of several factors in determining when to award attorney fees to a
`
`prevailing party
`
`in a copyright case,
`
`including “frivolousness, motivation, objective
`
`unreasonableness (both in the factual and in the legal components of the case) and the need in
`
`particular circumstances to advance considerations of compensation and deterrence.” Fogerty v.
`
`Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994) (internal quotation omitted). In its opinion regarding
`
`the attorney-fees issue, the district court awarded Gemmy $50,376.17 in fees, stating that the court’s
`
`opinion regarding the substantive copyright issues made it clear that Winfield’s complaint was
`
`“frivolous and objectively unreasonable, and, further, it is important to deter [Winfield] from bring
`
`[sic] such claims in the future.”
`
`15
`
`

`
`We are convinced that Winfield’s infringement claim was not frivolous or objectively
`
`unreasonable. The district court based its decision primarily on the premise that Winfield’s
`
`copyright protection was limited to its design, and that Winfield could not reasonably claim that its
`
`two-dimensional design could be substantially similar to Gemmy’s three-dimensional witch. For
`
`reasons set out above, this premise was erroneous; Winfield’s copyright protection extended to its
`
`constructed witch and photographs of that witch. In addition to this fundamental mistake, the district
`
`court also erred in its analyses of access and originality. In light of these errors, which made the
`
`case look more lopsided than it was, and given the inherently subjective nature of the abstractions
`
`test, we hold that the district court abused its discretion in finding Winfield’s complaint frivolous
`
`and objectively unreasonable, and we therefore reverse the court’s award of attorney fees to Gemmy.
`
`VII. Last-Minute Motions
`
`In the final days before oral argument was heard in this appeal, Gemmy submitted two
`
`motions to this court: a Motion