Gladly the Cross-Eyed Bear

1

In the state of Florida, it doesn’t matter if it’s day or night as concerns the burglary statutes. You can go in at any hour, it doesn’t affect the punishment. What matters is if you’re armed or if you assault someone, that’s Burglary One, and they can put you away for as long as the rest of your natural life. If the structure you enter happens to be a dwelling or if somebody’s on the premises when you go in, why that’s a Burg Two, and they can lock you up for fifteen years.

Warren was going in during the daytime — if she ever got the hell out of there — and he wasn’t armed, though he did own a license to carry. The condo was a dwelling, so if he got caught in there he was looking at a max of fifteen because in the state of Florida, if you stealthily entered any structure or conveyance without consent of the owner or occupant, that was considered prima facie evidence of entering with intent to commit an offense.

But he had to get in there, anyway.

If only she would hurry up and go about her business.

He turned on the car radio.

I had filed my complaint in Calusa’s federal court for the Middle District of Florida, asking for an order to show cause. Judge Anthony Santos had signed a temporary restraining order and had set a hearing for the twelfth day of September. A U.S. marshal had then served papers on Brett and Etta Toland, the owners of Toyland, Toyland, ordering their appearance at the hearing. It was now nine o’clock on the morning of the twelfth, a blistering hot Tuesday in Calusa, Florida.

The first thing Santos said to me was, “How are you feeling, Matthew?”

I wished people would stop asking me how I was feeling.

Or what it had felt like.

It had felt like all the lights suddenly coming on after a power failure. One moment there was utter darkness below, while above a raging electrical storm flashed intermittent white tendrils of lightning and boomed ugly blue thunder. I was standing in a deep black pit slowly filling with oily black water that rose inexorably to my waist, and then my chest, and then my throat. I was chained to the walls of this fathomless black pit while above lightning crackled and thunder roared and the fetid black water inched up toward my mouth and then my nostrils. And all at once there was a crashing bolt of lightning and a shattering thunderclap so close they seemed to be inside the pit itself, shaking its wet stone walls, filling my eyes and my head with bursting sound and blinding incandescence and...

With a mighty leap, I sprang out of the pit.

That’s what it had felt like for me.

Maybe if you came out of a coma five months ago, it was different for you.

“I’m fine, Your Honor,” I said.

“Are both sides ready?” Santos asked.

“Matthew Hope, representing the plaintiff, Elaine Commins.”

“Sidney Brackett, representing the defendant, Toyland, Toyland.”

Brackett was Calusa’s best man for legal matters pertaining to copyright or trademark, famous for having successfully defended the landmark Opal Oranges infringement suit. I was Calusa’s best man for all seasons, famous for having got shot twice — once in the shoulder and once in the chest — last April. I’m fine now. Really. I’m fine, goddamn it!

“I’ve reviewed the complaint, the affidavits, and the legal briefs from both sides,” Santos said, “so I think we can do without any lengthy opening statements. I hope you’ve explained to your respective clients...”

“Yes, Your Honor...”

“Yes, Your...”

“...that the purpose of this hearing is to determine whether Toyland, Toyland — hereinafter referred to as Toyland — should be enjoined on a preliminary basis from further production, distribution or sale of a teddy bear they call Gladys the Cross-Eyed Bear, for which Ms. Commins is claiming copyright, trademark, and trade dress infringement. It is your burden, Ms. Commins, to prove ownership of a valid copyright and trademark for the bear you call Gladly, and — as to Count I — to further prove unlawful copying of protected components. As for Counts II and III, it is your burden to prove infringement of the trademark and trade dress. Does everyone understand this?”

“Yes, Your Honor, this was all explained to my client.”

“My clients as well, Your Honor.”

“As I’m sure counsel has further explained,” Santos said, “ideas cannot be copyrighted. Protection is afforded only to the expression of ideas. For example, it’s not enough to show that both plaintiff and defendant used the idea of a cross-eyed bear whose vision is corrected by eyeglasses. In order to prove copyright infringement, it must be shown that the expression of this idea was copied. The essence of copyright infringement lies not in the defendant’s taking of the general idea or theme of the plaintiff’s work, but in the taking of the particular manner in which the plaintiff has expressed those ideas in the copyrighted work.

“Similarly, in order to prove trademark and trade dress infringement, it must be shown that a similar use of names and design features would be likely to cause confusion in the marketplace. The design features of a product may be given trade dress protection, but only if they are inherently distinctive or have achieved secondary meaning in the marketplace. Is all of that clearly understood?”

“Yes, Your Honor.”

“Yes, Your Honor.”

“Has it also been explained that a permanent injunction cannot be granted until after a trial on the merits?”

“Yes, Your Honor.”

“Yes, Your...”

“Before we proceed, then, I should mention that the Court fully recognizes the exigencies of the case, Christmas being right around the corner, so to speak, in terms of getting one of these bears into the stores, whichever party may prevail. At the same time, and exactly because of the very real and pressing commercial considerations for both sides, the Court does not intend to be rushed into any decision.”

On the other side of the courtroom, seated at the defense table with his clients, Sidney Brackett sat stone-faced. Or bored. Or both. A squat chubby little man who bore an unfortunate resemblance to Newt Gingrich, he sat flanked by two of the more attractive people on this planet, Mr. and Mrs. Brett Toland, accused teddy-bear thieves.

“I should also mention that the rules of procedure in a hearing are identical to those in a trial,” Santos said. “There is no jury, but everything else is the same. The plaintiff presents his...”

I was thinking that everyone in the world already knew all this, at least insofar as it bore similarities to criminal law. Everyone in the world had watched the Simpson trial for the past twenty-two years, six months, three weeks and twelve days and knew all this procedure stuff even better than I myself did. I was thinking it was too bad there wasn’t a jury here because then ordinary citizens who weren’t lawyers could catch any mistakes I made, and maybe write to tell me all about what a lousy lawyer I was, I just loved getting “Gotcha!” mail. When I woke up at Good Samaritan Hospital, in fact, I’d found a pile of letters from strangers who felt I was somehow responsible for having got myself shot, and somehow derelict in not coming out of the coma soon enough to suit them. Actually, I’d have enjoyed popping off that table in ten minutes flat, but medical problems prevented me from doing so. Better yet, I would have preferred not having the medical problems to begin with. Even better, I would have preferred not getting shot at all. You try getting shot sometime, and I’ll write you a letter when you refuse to come out of a goddamn coma.

Then again, people keep telling me I seem a bit crotchety since I woke up.

“...a direct examination of each witness,” Santos was saying, “followed by the defense’s cross-examination. The plaintiff is then allowed a redirect, and the defense a re-cross. After the plaintiff has rested its case, the defense then calls its witnesses, and the same rules of questioning and requestioning apply. If there are any questions from either of the contesting parties, please let me hear them now. I want everyone to understand exactly what’s about to transpire.”

There were no questions.

“In that case, Mr. Hope,” Santos said, “if you’re ready with your first witness, we’ll begin.”

Hurry up and come out of there, Warren thought.

He usually drove a beat-up old grayish Ford, which was a very good car for someone in his profession to drive unless he wanted everyone in the state of Florida to know just what he was up to. Trouble was, she knew the Ford, had in fact been in the car more times than he could count, so he couldn’t very easily park it up the street from her condo without her making it in a minute. Black man parked in a dilapidated gray Ford, who else could it be but good ole Warren Chambers?

So he’d parked here on the corner in a borrowed red Subaru with a dented left fender, and was hulking down now under the shadow of a big banyan tree dropping leaves all over the hood the way pigeons dropped shit. From where he was parked he could see the exit driveway from the parking lot in front of her condo. He knew her car. He’d be able to spot her the minute she left. If she left.

A fly buzzed his head.

Trouble with sitting here all the windows open.

Hated Florida and its goddamn bugs.

Kept watching the exit drive. It was on this end of the lot, big white arrow painted on the cement, pointing in. Big white arrow on the other end of the lot, pointing out. So come on, he thought. You got an arrow showing you the way, let’s do it.

He looked at his watch.

Nine thirty-seven.

Time to get out and get hustling, he thought.

Elaine Commins — or Lainie, as she preferred calling herself — was thirty-three years old, tall and spare with an elegantly casual look that spelled native Floridian, but she had come here from Alabama only five years ago, and she still spoke with a marked Southern accent. She was wearing for this morning’s hearing a long pleated silk skirt with a tunic-length cotton pullover. No panty hose or stockings, just bare suntanned legs in a sling-back shoe with a low heel and a sort of openwork macramé toe. On the pinky finger of her right hand was the same gold ring she’d been wearing when first she came to my office. She’d described it then as a Victorian seal ring, its face in the shape of a heart, its band decorated with florets. The gold of the ring and the wheat tones of her outfit complemented her long sand-colored hair, pulled back and away from her face in a ponytail fastened with a ribbon the color of her green eyes. Those eyes seemed wary and intent and — well, not to be unkind, but merely for the sake of accuracy — a trifle cockeyed.

In America, the word “cockeyed” means “cross-eyed,” what the British call a “squint,” although in America someone “squinting” is not looking at you “cockeyed,” he is merely narrowing his eyes at you, looking at you with his eyes only partly open, the way he might look while squinting at the sun, for example, hmm? A funny language these colonials have, wot? Lainie wasn’t truly cross-eyed. That is to say, neither of her eyes turned inward toward her nose. But she was cockeyed in that her left eye looked directly at you while her right eye turned outward. The defect was vital to her claim — in fact, I hoped it would win the day for us — but it nonetheless gave her an oddly vulnerable and exceedingly sexy look. Placing her hand on the Bible extended by the clerk of the court, she swore to tell the truth, the whole truth and nothing but the truth, so help her God.

“Would you tell me your name, please?” I said.

“Elaine Commins.”

Her voice as soft as a hot summer wind blowing in off the Tennessee River. Cockeyed green eyes wide and expectant in a face kissed by sunshine, left eye staring straight at me, right eye wandering to the American flag in the corner behind the judge’s bench. Bee-stung lips, slightly parted, as though she were breathlessly anticipating my next question.

“And your address, please?”

“1312 North Apple.”

“Is this also the address of your place of business?”

“It is. I work from a small studio in my home.”

“What’s the name of your business?”

“Just Kidding.”

“What sort of business is that, Ms. Commins?”

“I design children’s toys.”

“How long have you been doing this kind of work?”

“Ever since I graduated from the Rhode Island School of Design ten years ago.”

“So for ten years you’ve been designing children’s toys.”

“Yes.”

“Have you had your own business for all of those ten years?”

“No, I’ve worked for other people in the past.”

“Did you once work for Toyland, the defendant in this case?”

“I did.”

“In what capacity?”

“As a member of the design staff.”

“Designing toys?”

“Yes. Children’s toys.”

“Did you design Gladly the Cross-Eyed Bear while you were in the employ of Toyland?”

“I certainly did not!”

“When did you design the bear?”

“In April of this year.”

“And you left your job at Toyland when?”

“This past January.”

I walked to the plaintiff’s table, and picked up from its top one of two seemingly identical teddy bears. The one I held in my hand as I walked back to the witness stand was some nineteen inches tall. The one still on the table was an inch shorter. Both were made of mohair. Each had hanging around its neck a pair of spectacles on a gold chain.

“Your Honor,” I said, “may we mark this as exhibit one for the plaintiff?”

“So marked.”

“Ms. Commins,” I said, “do you recognize this?”

“I do.”

“What is it?”

“It’s a stuffed toy called Gladly the Cross-Eyed Bear, which I designed and had copyrighted and trademarked.”

“I offer the bear in evidence, Your Honor.”

“Any objections?”

“None,” Brackett said. “Subject to our argument that the bear was not designed by Ms. Commins.”

“Duly noted.”

“Ms. Commins, was the design of this bear original with you?”

“It was.”

“To your knowledge, before you designed and named this bear, was there any other teddy bear in the world called Gladly the Cross-Eyed Bear?”

“To my knowledge, there was not and is not.”

“Have you registered the trademark Gladly the Cross-Eyed Bear?”

“I have.”

“Your Honor, may we mark this document as plaintiff’s exhibit number two?”

“So marked.”

“Ms. Commins, I show you this document and ask if you can identify it for me.”

“It’s the original certificate of trademark registration for Gladly.”

“You mean Gladly the bear, of course.”

“I mean Gladly the Crow-Eyed Bear. The crossed eyes are a unique part of her design. As are the correcting eyeglasses. They are integral parts of the trade dress.”

“Your Honor, I offer the certificate in evidence.”

“Any objections?”

“None.”

“Your Honor, may we also mark this document?”

“Mark it plaintiff’s exhibit number three.”

“Ms. Commins, I now show you another document. Can you tell me what it is?”

“Yes, it’s the original copyright registration certificate for Gladly.”

“Did any drawings accompany the application for copyright?”

“They did.”

“And do they accurately depict the design of your bear?”

“And the bear’s eyeglasses.”

“Your Honor, I offer the copyright certificate and the accompanying drawings in evidence.”

“Objections?”

“None.”

“Ms. Commins,” I said, “how would you describe Gladly?”

“She’s a cross-eyed bear with big ears, a goofy smile, and eyeglasses that she can wear.”

“Are all these design elements original with you?”

“Yes.”

“Well, aren’t there other teddy bears in the world with big ears?”

“There are. But not like Gladly’s.”

“And goofy smiles?”

“Oh boy are there goofy smiles!” she said, and smiled in goofy imitation, which caused Santos to smile a bit goofily himself. “But not like Gladly’s.”

“Are there other cross-eyed teddy bears in the world?”

“None that I know of.”

“Then the copyrighted crossed eyes on Gladly are unique to your bear.”

“Yes.”

“As is the trademarked name.”

“Yes.”

“How about the eyeglasses? Aren’t there teddy bears who wear eyeglasses?”

“Not eyeglasses like these.”

“What’s different about these glasses?”

“They uncross her eyes.”

“No glasses like that on any other teddy bear in the world?”

“None that I know of.”

“When did the idea for this bear first come to you?”

There she was at last.

Or rather, there was her car, a faded green Chevy not unlike Warren’s own faded gray Ford, nondescript and unremarkable, nosing its way out of the parking lot like a sand shark. She looked both ways and then made a right turn and drove on up the block. Warren waited till the Chevy was out of sight. He checked his watch. Ten minutes to ten.

Give her another five minutes, he thought.

Make sure she didn’t forget something, decide to come back for it.

As Lainie Commins tells it, there are cul-de-sac streets in Calusa that make you think you’ve stepped into a time warp. Her house with its attached studio is on one of those streets. This is Calusa — this is, in fact, Florida — as it must have looked in the forties and fifties.

I have never thought of Calusa as a tropical paradise. Even in the springtime, when everything is in bloom, nothing really looks as lush or as bursting with color as it does in the Caribbean. As a matter of fact, to me, Calusa usually looks more brown than it does green, as if the grass, and the leaves on the trees and bushes, have been overlaid with a fine dust. Even the bougainvillea and hibiscus seem somehow limp and lacking in luster when compared to the extravagant display of these plants in truly tropical climates.

But in April...

Which is when the idea for Gladly first came to Lainie and which, coincidentally, was when I was flat on my ass in the Intensive Care Unit at Good Samaritan Hospital in a coma as deep as — but that’s another story.

In April, then, as Lainie tells it, the street on which she lives and works resembles a jungle through which a narrow asphalt road has been laid and left to deteriorate. The entrance to North Apple Street — there is no South Apple Street, by the way — is a mile and a half from the mainland side of the Whisper Key bridge. A sign at the street’s opening reads DEAD END appropriate in that North Apple runs for two blocks before it becomes an oval that turns the street back upon itself in the opposite direction.

Lining these two short blocks are twelve shingled houses with the sort of glass-louvered windows you could find all over Calusa in the good old days before it became a tourist destination for folks from the Middle West and Canada. The houses here are virtually hidden from view by a dense growth of dusty cabbage palm and palmetto, red bougainvillea, purple bougainvillea, white bougainvillea growing in dense profusion, sloppy pepper trees hung with curling Spanish moss, yellow-clustered gold trees, pink oleander, golden allamanda, trailing lavender lantana, rust-colored shrimp plants, yellow hibiscus, pink hibiscus, red hibiscus, eponymous bottlebrush trees with long red flowers — and here and there, the one true floral splendor of Calusa, the bird-of-paradise with its spectacular orange and bluish-purple crest.

People say about this street, “It’s still very Florida.”

Meaning it’s run-down and overgrown and wild and fetid and hidden and somehow secret and silent. “You expect to see alligators waddling out of the bushes on this street. “You expect to see bare-breasted, bare-chested Calusa Indians. What you do see are suntanned young sun-worshippers — some of them bare-chested or bare-breasted, true enough — living six or seven in each small house, performing any service that will keep them outdoors most weekdays and on the beaches every weekend. There are more gardeners, pool-cleaning people, house painters, window washers, tree trimmers, road maintenance workers, lifeguards and boatyard personnel living on the two blocks that form Apple Street than there are in the entire state of Nebraska.

In at least three of the houses here, there are people with artistic pretensions, but that is not unusual for the state of Florida in general and the city of Calusa in particular. Calusa calls itself the Athens of Southwest Florida, a sobriquet that causes my partner Frank — a transplanted native New “Yorker — to snort and scoff. Four people on Apple Street call themselves painters. Another calls himself a sculptor. A sixth calls herself a writer. Lainie Commins is the only true professional on the street. She is, after all, a trained designer with a track record of production, though none of the toys or dolls, or even a game in one instance, ever took off the way the companies for which she’d worked had anticipated.

The walls of her tiny studio are hung with actually manufactured toys she designed first for a company named Toy-works in Providence, where she worked for a year after her graduation from Risdee, and then for a company named Kid Stuff in Birmingham, Alabama, not far from her birthplace, and next for Toyland, Toyland right here in Calusa, where she worked for three years before setting out on her own in January.

The idea for Gladly comes to her at the beginning of April sometime, she can’t recall the exact date, and she tells that honestly to the Court now. The studio in which she works is so shadowed by the plants growing outside that it is dark even in the daytime. She works with a huge fluorescent light over her table, sketching ideas, developing them, refining them. She wears glasses when she works. In fact, she wears them all the time, except here in this courtroom today, where Matthew wants Judge Santos to notice that wandering right eye and forge a connection between Lainie’s condition and that of the bear she created. The strabismus, as her visual defect is called, commenced when she was three years old. At least, that was when her mother first detected what was then merely a slight turning-out of the right eye. Glasses failed to correct the condition. Two operations to shorten the muscle also proved fruitless. The right eye continued to wander. (When Lainie was sixteen, her mother confided to a friend that her daughter had “a wandering eye,” but she wasn’t talking about the strabismus.) Lainie explains her condition to the Court now, gratuitously contributing the fact that the word “strabismus” comes from the Greek word strabos, which means “squinting” — there you are, lads. A cockeyed squint, after all!

Gladly comes to her out of the blue.

She’s been working since early this morning, constructing a model for a fire engine with a girl doll at its wheel and several other girl dolls, all with flowing red hair the color of the truck, hanging from its sides. Casting each delicate doll from individual wax models, hanging them on the deliberately macho prototype truck she’s constructed of wire and wood, she finds herself humming as she works, and oddly—

Ideas sometimes come this way, she tells the Court.

— one of the tunes she initially hums and then actually begins singing is a hymn called “Keep Thou My Way,” which she learned when she was a little girl growing up in Winfield, Alabama, and attending a Bible-reading class taught by a woman named Helen Lattimer.

...and she remembers all at once that in all the children’s minds “Gladly the cross I’ll bear” became “Gladly the cross-eyed bear,” in much the same way that “Round yon virgin” in “Silent Night” became a chubby little man whose name was John Virgin, or “Lead on, O king eternal” in yet another hymn became “Lead on, O Kinky Turtle.” And suddenly she thinks Oh, God, a whole line of stuffed toys, starting with the Cross-Eyed Bear and going from there to the Kinky Turtle and Round John and who knows what other characters I might find in the malaprop depths of rural America!

She rolls the fire truck to one side of the table, opens a pad, and begins sketching, starting with the outline of the bear’s head, tilted to one side, and then filling in the crossed eyes and the silly little grin under its black triangular nose—

And here she shows the original drawing to the Court:

“I would like to offer Ms. Commins’s drawing in evidence, Your Honor.”

“Any objections?”

“None.”

Lainie makes some twenty drawings of the bear that night, working feverishly from the moment of inspiration to one in the morning, and she goes to sleep exhausted but content until she wakes up in the middle of the night with her eyes burning, and goes into the bathroom to put some Visine drops into them, and recalls how devastated she’d felt when the ophthalmologist in Birmingham reported that the second operation had not helped her condition, and standing there in the bathroom with the eyedropper in her hand, she thinks I’ll fix Gladly’s eyes! and runs out into the studio again, and puts on her own glasses and begins sketching Gladly wearing eyeglasses.

“I offer the following eighteen drawings in evidence, Your Honor.”

“Objections?”

“None.”

“All right to offer them all as a single piece of evidence, Mr. Hope?”

“If it please the Court.”

“That’s five for the plaintiff,” Santos said.

“As I understand this,” I said, “when the eyeglasses are placed on Gladly’s nose, covering her eyes...”

“Yes.”

“...the eyes look perfectly normal.”

“Yes. Facing her and looking at her eyes through the glasses...”

“Could you show us, please?” I said, and handed her the prototype bear with the eyeglasses hanging on a chain around her neck. While Gladly watched in glassy cross-eyed expectation, smiling goofily, Lainie opened the glasses, perched them on the bear’s snout and little black triangular nose, and hooked them behind her ears. Instantly and magically, the previously crossed eyes appeared normal.

“You put on the glasses,” Lainie said, “and the eyes aren’t crossed anymore.”

“How do you achieve that effect, Ms. Commins?”

“I had an optometrist design the glasses for me.”

“Do you have specifications for these glasses?”

“I do.”

“I refer you to exhibit three, the certificate of copyright registration for your bear, and ask you to look at the deposit copies accompanying it. Are these the specifications to which you just made reference?”

“They are.”

“And did these specifications accompany your application for copyright registration?”

“They were a part of the application, yes.”

“And became a part of the copyright protection, didn’t they?”

“Objection!”

“Sustained.”

“Your Honor, if I may...”

“Yes, Mr. Brackett?”

“Your Honor,” Brackett said, “it is not Ms. Commins’s business to know or to comment upon copyright law.”

“I sustained your objection, didn’t I?”

“Yes, and thank you, Your Honor. But, moreover, Your Honor, eyeglasses in themselves are not copyrightable, they are not subject matter for copyright. Copyright does not protect ideas or systems, it protects only the expression of ideas.”

“Yes, I know that,” Santos said. “I’m quite familiar with the ‘idea/expression’ distinction.”

“I’m sure, “Your Honor. But for counsel to suggest that copyright protection of the bear extends to the bear’s eyeglasses...”

“Your Honor,” I said, “the eyeglasses are part of the bear’s trade dress. As such...”

“All of which is a matter of law for the Court to decide. Meanwhile, let’s hear the rest of the testimony.”

“Thank you, Your Honor,” Brackett said.

“Ms. Commins,” I said, “do you own these specifications?”

“I paid for their design, yes, in return for all rights to the drawings and the unrestricted use of the design.”

“Has anyone else, to your knowledge, ever used such a design in this manner before?”

“Not to my knowledge.”

“To your knowledge, has anyone ever used such a design in the form of eyeglasses for a stuffed teddy bear?”

“Not to my knowledge.”

“Eyeglasses which, when covering the bear’s crossed eyes, seem to correct the abnormality? Anyone ever use this design in this fashion before?”

“Not to my knowledge.”

“Is this use original with you?”

“It is.”

“Did you conceive of this use independently?”

“I did.”

“Which goes to the heart of copyright law,” I said. “An original manner of expression, independently cre—”

“Which goes to the heart of a lawyer addressing the Court directly,” Brackett said, “rather than...”

“Sustained,” Santos said. “Careful, Mr. Hope.”

There was the fetid smell of mildew and rot, what you found in a lot of these condos built back in the forties and fifties. Place was constructed of cinder block painted white, streaks of greenish gray all over it where the mildew had been having its way for too long a time. Wooden posts rotted clear through, probably infested with termites, too, supporting a rippled green plastic overhang running past the entrance doors to the units, twelve on each floor by Warren’s count. He came down the long open corridor cautiously because the one thing he couldn’t change was his color.

Could borrow a dented red Subaru from a friend of his, could dress in tropical beige threads made him look like a visiting real estate salesman or a banker come to call, he still looked out of place in this shitty run-down condo where the only tenants were white. So he came cautiously down that long second-floor corridor with the sun hitting the rippled overhang at an angle that cast the plastic’s sickly green color onto the corridor floor and the lower part of the white wall, and he prayed none of the doors along that wall would open, prayed no one would step out to challenge him. He was a black man about to stealthily break and enter a structure or conveyance without consent of the owner or occupant, but he wasn’t a burglar, and he didn’t choose to be mistaken for one.

Warren was carrying in his wallet a laminated card that had been issued in accordance with Chapter 493 of the Florida Statutes, and which gave its recipient the right to investigate and gather information on a great many criminal and noncriminal matters listed in detail in the statute. He took that card from his wallet now, and used it to loid the lock on the door to unit 24, her unit, sliding it deftly between doorjamb and Mickey Mouse spring latch, forcing the latch back until he felt the door give, and then easing himself into the unit and closing the door behind him at once.

His heart was pounding hard.

Sidney Brackett was asking Lainie if it wasn’t true that she had developed the idea for her so-called original bear Gladly while, in fact, she was still working at Toyland, Toyland. Lainie was vehemently denying this. Sitting at the defense table, Brett and Etta Toland sat calmly watching the proceedings, secure in the knowledge that Brackett would impeach my first witness and get this whole damned thing kicked summarily out of court.

Brett was forty-four years old, elegantly tailored in a blue blazer and gray slacks, white shirt open at the throat, no tie, shoes invisible under the table — but I guessed they were tasseled loafers — suntanned face exploiting eyes as blue as glare ice, thick blond hair casually styled. He sat holding his wife’s left hand in his own right hand. Together, they presented the very image of solidarity against this impostor named Lainie Commins.

In Calusa society, such as it was, they were familiarly known as Lord and Lady Toland, though neither was either British or aristocratic. Host and hostess supreme — I remembered an outdoor party where Japanese lanterns festooned the lawn of their multimillion-dollar beachfront home, and goldfish swam in tiny bowls at the more than fifty outdoor tables, and the then governor of the state of Florida was in attendance — invitations to their extravaganzas were sought like tickets to the Super Bowl, though I’d personally felt somewhat uncomfortable in such resplendent digs, perhaps because I’d grown up poor in Chicago; maybe a person can never put poverty behind him.

Etta Toland...

Ett and Brett, they were called by close friends who cherished the Tolands, and their Fatback Key mansion, and their parties, and their tennis court and swimming pool, and their ninety-four-foot yawl named Toy Boat, and their private jet that didn’t have a name though both jet and yacht had painted respectively on fuselage and transom the logo of their toy company, two dolls sitting with legs extended and heads together, the boy with blond hair, the girl with black hair, each smiling radiantly. This same logo was on the little round tag attached to the second teddy bear on Matthew’s table, little boy and girl with TOYLAND in a semicircle above their heads, and another TOYLAND in a semicircle below their legs, TOYLAND, TOYLAND, for Toland, Toland, here now to defend themselves against Lainie Commins’s charges of copyright and trademark infringement.

Thirty-seven-year-old Etta had hair as black as that on the little grinning girl-doll in the company logo, worn straight and sleek and to the shoulders. High sculpted cheekbones, very dark almond-shaped eyes, and a generous mouth glossed with blood-red lipstick collaborated with the straight, lustrous, jet-black hair to give her a somewhat Oriental appearance, although her maiden name was Henrietta Becherer, and her forebears were German — a fact that didn’t stop competitors and/or detractors from labeling her “The Dragon Lady.” Rumor had it that Brett had met her at a toy fair in Frankfurt, where she’d been pitching at the Gebrüder Hermann booth. On this hot Tuesday morning in September, she looked cool, self-possessed, businesslike and yet utterly feminine in a glen-plaid silk suit the color of twilight, worn with a dusky blue silk shirt open at the throat over a medallion print scarf. Above the left hand clutched in her husband’s right, a gold cuff link showed where her jacket sleeve ended.

“Do you remember which toys you were working on during your employment?” Brackett asked.

“Do you mean at Toyland?”

“Yes. That was... how long did you say you’d worked there, Miss Commins?”

“I left them in January. I’d been working there for three years by then.”

“This past January?”

“Yes.”

“Worked for them for three years.”

“Yes.”

“Do you remember which toys you designed for them during those three years?”

“I remember all of them.”

“Wasn’t the idea for Gladly suggested to you...?”

“No, it was not.”

“Your Honor, may I finish my question?”

“Yes, go ahead. Please listen to the complete question before answering, Miss Commins.”

“I thought he was finished, “Your Honor.”

“Let’s just get on with it,” Santos said impatiently.

“Isn’t it true that the idea for Gladly was suggested to you by Mr. Toland...?”

“No, that isn’t true.”

“Miss Commins, let him finish, please.”

“Suggested to you by Mr. Toland at a meeting one afternoon during the month of September last year?”

“No.”

“While you were still in the employ of...?”

“No.”

“...Toyland, Toyland, isn’t that true, Miss Commins?”

“No, it is not true.”

“Isn’t it true that this original idea of yours was, in fact, Mr. Toland’s?”

“No.”

“Didn’t Mr. Toland ask you to work up some sketches on the idea?”

“No.”

“Aren’t the sketches you showed to the court identical to the sketches you made and delivered to Mr. Toland several weeks after that September meeting?”

“No. I made those sketches this past April. In my studio on North Apple Street.”

“Oh yes, I’m sure you did.”

“Objection,” I said.

“Sustained. We can do without the editorials, Mr. Brackett.”

“No further questions,” Brackett said.

Warren debated opening the door again, ramming a toothpick into the keyway, snapping it off close to the lock. Anyone trying to unlock the door from the outside would try to shove a key in, meet resistance, make a hell of a clicking racket pushing against the broken-off wood. Great little burglar alarm for anybody inside who shouldn’t be in there. Trouble was, she knew the toothpick trick as well as he did, she’d know immediately there was somebody in her digs. He’d be lucky she didn’t pull a piece, blow off the lock, and then shoot at anything that moved, blowing off his head in the bargain.

He locked the door.

Looked around.

The place was dim. White metal blinds drawn against the sun at the far end of the room. Sofa against what was apparently a window wall, sunlight seeping around the edges of the blinds. Sofa upholstered in a white fabric with great big red what looked like hibiscus blossoms printed on it. His eyes were getting accustomed to the gloom. The place looked a mess. Clothes strewn all over the floor, empty soda pop bottles and cans, cigarette butts brimming in ashtrays — he hadn’t known she’d started smoking again, a bad sign. He wondered if the place always looked like a shithouse, or was it just now? On the street outside, he heard a passing automobile. And another. He waited in the semidark stillness of the one room. Just that single window in the entire place, at the far end, the only source of light, and it covered with a blind. Figured the sofa had to open into a bed, else where was she sleeping?

Door frame, no door on it, led to what he could see was a kitchen. Fridge, stove, countertop, no window, just a little cubicle the size of a phone booth laid on end, well, he was exaggerating. Still, he wouldn’t like to try holding a dinner party in there. He stepped into the room, saw a little round wooden table on the wall to his right, two chairs tucked under it. Kitchen was a bit bigger than he’d thought at first, but he still wouldn’t want to wine and dine the governor here.

Pile of dirty dishes in the sink, another bad sign.

Food already crusted on them, meant they’d been there a while, an even worse sign.

He opened a door under the sink, found a lidded trash can, lifted the lid, peered into it. Three empty quart-sized ice cream containers, no other garbage. Things looking worse by the minute. He replaced the lid, closed the door, went to the fridge and opened it. Wilting head of lettuce, bar of margarine going lardy around the edges, container of milk smelling sour, half an orange shriveling, three unopened cans of Coca-Cola. He checked the ice cube trays. Hadn’t been refilled in a while, the cubes were shrinking away from the sides. He nearly jumped a mile in the air when he spotted the roach sitting like a spy on the countertop alongside the fridge.

They called them palmetto bugs down here. Damn things could fly, he’d swear to God. Come right up into your face, you weren’t careful. Two, three inches long some of them, disgusting. There were roaches back in St. Louis, when he lived there, but nothing like what they had down here, man. He closed the refrigerator door. Bug didn’t move a muscle. Just sat there on the countertop watching him.

Another car passed by outside.

Real busy street here, oh yes, cars going by at least every hour or so, a virtual metropolitan thoroughfare. He just hoped one of them wouldn’t be her car, pulling into the parking lot, home from market, surprise!

He figured that’s where she’d be, ten-thirty in the morning, probably down in Newtown, doing her marketing. He hoped to hell he was wrong. The roach — palmetto bug, my ass! — was still on the countertop, motionless, watching Warren as he went back into the main room of the unit, the living room/bedroom/dining room, he guessed you would call it. Red hibiscus sofa against the far wall, he walked to it, and leaned over it and opened the blinds, letting in sunlight.

I had only one other witness, an optometrist named Dr. Oscar Nettleton, who defined himself as a professional engaged in the practice of examining the eye for defects and faults of refraction and prescribing corrective lenses or exercises but not drugs or surgery. He modestly asserted that he was Chairman of, and Distinguished Professor in, Calusa University’s Department of Vision Sciences. I elicited from him the information that Lainie Commins had seemed elated...

“Objection, Your Honor.”

“Overruled.”

...and glowing with pride...

“Objection.”

“Overruled.”

...and confident and very up...

“Objection.”

“Sustained. One or two commonsense impressions are quite enough for me, Mr. Hope.”

...when she’d come to him this past April with her original drawings for Gladly and her requirements for the eyeglasses the bear would wear.

“She kept calling them the specs for the specs,” Nettleton said, and smiled.

He testified that his design for the eyeglasses was original with him, that he’d received a flat fee of three thousand dollars for the drawings, and had signed a document releasing all claim, title and interest to them and to the use or uses to which they might be put.

Brackett approached the witness stand.

“Tell me, Dr. Nettleton, you’re not an ophthalmologist, are you?”

“No, I’m not.”

“Then you’re not a physician, are you?”

“No, I’m not.”

“You just make eyeglasses, isn’t that so?”

“No, an optician makes eyeglasses. I prescribe correctional lenses. I’m a doctor of optometrics, and also a Ph.D.”

“Thank you for explaining the vast differences, Doctor,” Brackett said, his tone implying that he saw no real differences at all between an optician and an optometrist. “But, tell me, when you say the design for these eyeglasses is original with you, what exactly do you mean?”

“I mean Miss Commins came to me with a problem, and I solved that problem without relying upon any other design that may have preceded it.”

“Oh? Were there previous designs that had solved this problem?”

“I have no idea. I didn’t look for any. I addressed the problem and solved it. The specifications I gave her were entirely original with me.”

“Would you consider them original if you knew lenses identical to yours had been designed prior to yours?”

“My design does not make use of lenses.”

“Oh? Then what are eyeglasses if not corrective lenses?”

“The lenses in these glasses are piano lenses. That is, without power. They are merely clear plastic. If you put your hand behind them, you would see it without distortion. They are not corrective lenses.”

“Then how do they correct the bear’s vision?”

“They don’t, actually. They merely seem to. What I’ve done is create an illusion. The teddy bear has bilaterally crossed eyes. That is to say, the brown iris and white pupil are displaced nasalward with respect to the surrounding white scleral-conjunctival tissue of the eye. As in the drawing Ms. Commins first brought to me. What I did...”

“What you did was design a pair of eyeglasses you say are original with you.”

“They are not eyeglasses, but they are original with me.”

“When you say they’re original, are you also saying you didn’t copy them from anyone else’s eyeglasses?”

“That’s what I’m saying. And they’re not eyeglasses.”

“Your Honor,” Brackett said, “if the witness keeps insisting that what are patently eyeglasses...”

“Perhaps he’d care to explain why he’s making such a distinction,” Santos said.

“Perhaps he’s making such a distinction because he knows full well that his design is copied from a pair of eye—”

“Objection, Your...”

“I’ll ignore that, Mr. Brackett. I, for one, certainly would like to know why Dr. Nettleton doesn’t consider these eyeglasses. Dr. Nettleton? Could you please explain?”

“If I may make use of my drawings, Your Honor...”

“Already admitted in evidence, Your Honor,” I said.

“Any objections, Mr. Brackett?”

“If the Court has the time...”

“I do have the time, Mr. Brackett.”

“Then I have no objections.”

I carried Nettleton’s drawings to where he was sitting in the witness chair. He riffled through the stapled pages and then folded back several pages to show his first drawing.

“These are the plastic crossed eyes that are attached to the teddy bear’s face. As you can see, the iris and pupil are displaced nasalward.”

“And this is a drawing of the plastic straight eyes as they’re reflected within the spectacles I designed.”

“May I see it, please?”

Nettleton handed the drawing to him.

“By reflected...”

“With mirrors, Your Honor.”

“Mirrors?”

“Yes, Your Honor. If I may show you my other drawings.”

“Please.”

Nettleton turned some more pages, folded them back, and displayed another drawing to Santos.

“This is the teddy-bear optical schematic,” he said. “It illustrates the manner in which I expressed the optical principles of my system for producing apparently straight eyes. A and D are button eyes that will be seen by reflection from the right and left mirrors. Their images only appear to be at R and L respectively.”

“For the right eye, the distance from A to B equals the distance from B to R at the plane of the bear’s face. Similarly, for the left eye, the distance from C to D equals the distance from C to L. The lenses, as I mentioned earlier, are plano lenses.”

“I’m not sure I understand,” Santos said.

“The next drawing will make it entirely clear,” Nettleton said, and began leafing through the specs again.

“Your Honor,” Brackett said, “this is all enormously fascinating...”

“Actually, I do find it fascinating,” Santos said.

“But it has nothing to do with whether the design was copied or...”

“It may have everything to do with differences between the two bears, Mr. Brackett.”

“Your Honor, in order to show originality, substantial diff—”

“Well, let’s see the drawing, shall we?” Santos said. “Have you found it, Dr. Nettleton?”

“Yes, I have it right here,” Nettleton said, and handed the pages back to Santos.

“This drawing illustrates the implementation of the optical system in the manner in which I expressed it. As you see, the wraparound frame allows attachment of the button eyes A and D to the inside surface of the broad temples. The forty-five-degree mirrors are attached to the inside of the front frame and extend back to the temples. The depth of the frame conceals the mirrors. Thus, when the uncrossed plastic eyes and surrounding fur — integrated into the temples — are reflected into the fully silvered mirrors, they appear to be originating from the facial plane of the actual teddy bear.”

“That is ingenious,” Santos said.

“Thank you.”

“Ingenious, Dr. Nettleton.”

“Thank you very much.”

“Don’t you think that’s ingenious, Mr. Brackett?”

“If you’re using the word to mean marked by originality in conception, I must take exception, Your Honor. In fact, if I may continue with my cross...”

“Yes, please do. Ingenious, Dr. Nettleton,” Santos said, and handed the specifications back to him. “Ingenious.”

Brackett cleared his throat.

“Dr. Nettleton,” he said, “would you know whether there are any eyeglasses in existence which are identical or even very similar to the ones you designed for Miss Commins?”

“I have no knowledge of any device which appears to be a pair of eyeglasses but which is in reality merely a carrier, if you will, for reflective mirrors. If designs for any such device exist, I had no access to them.”

“Ah, access. Did Mr. Hope ask you to mention access?”

“No, he did not.”

“Do you understand the meaning of the word ‘access’ as it pertains to copyright matters?”

“I don’t know anything about copyright. I’m an optometrist. I examine the eye for defects and faults of refraction...”

“Yes, yes.”

“...and prescribe corrective lenses or exercises...”

“Yes, but not drugs or surgery Thank you, we already have that, Doctor. What does access mean to you?”

“It means I saw something. I had access to it. I knew about it.”

“As pertains to copyright matters, it can also mean you had reasonable opportunity to have seen it.”

“I never saw any device like the one I designed for Miss Commins.”

“What if I told you that eyeglasses similar to yours...”

“They are not eyeglasses!”

“Your Honor,” I said, getting to my feet, “do you think we might stipulate that Dr. Nettleton’s design is not for eyeglasses, but only for a device made to look like eyeglasses?”

“I’ll make no such stipulation,” Brackett said.

“Then might Mr. Brackett refrain from calling them eyeglasses, when clearly...”

“What should I call eyeglasses but eyeglasses?”

“Let him call them what he chooses, Mr. Hope. Let’s just get on with this, shall we?”

“Thank you, Your Honor,” Brackett said, and turned back to the witness. “Dr. Nettleton, are you aware that a design for eyeglasses remarkably similar to yours appeared in an industry technical journal many years ago? Would you still say you had no access?”

“I never saw my device anywhere.”

“Do you read trade journals?”

“I do.”

“Do you read Optics and Lenses?”

“I’ve read it on occasion.”

“Have you read the March 1987 issue of that magazine?”

“No.”

“Your Honor, I ask the Court to take judicial notice that this magazine I hold in my hand is the March 1987 issue of Optics and Lenses.”

“Mr. Hope? Do you dispute this?”

“No, Your Honor.”

“Judicial notice taken. Move it into evidence as exhibit A for the defense.”

“Dr. Nettleton, I ask you to turn to page twenty-one of the magazine, would you do that for me, please?”

Nettleton leafed through the magazine, found the page, and looked up.

“Do you see the title of the article on that page?”

“I do.”

“Would you read it to the Court, please?”

“The whole article?”

“Just the title, please.”

“The title is ‘The Use of Corrective Lenses in the Treatment of Strabismus.’”

“Thank you. Dr. Nettleton, would you call your eyeglasses a way of using corrective lenses in the treatment of strabismus?”

“No, I would not.”

“Well, isn’t Ms. Commins’s bear cross-eyed?”

“It is.”

“And isn’t ‘strabismus’ the proper medical term for this condition?”

“Yes, but...”

“And don’t your eyeglasses correct this condition?”

“Yes, but...”

“Then wouldn’t you agree that your design makes use of corrective lenses in the treatment of...”

“Mirrors. It makes use of mirrors.”

“Lenses, mirrors, all have to do with optics.”

“A mirror isn’t a lens. A mirror is a surface that forms an image by reflection. A lens forms an image by focusing rays of light. They are two separate and distinct...”

“Doesn’t your design demonstrate one way of treating the condition known as strabismus?”

“Only in the very loosest possible sense. We’re not talking about real strabismus here, we’re...”

“Yes or no, please.”

“Given the widest possible interpretation...”

“Your Honor?”

“Yes or no, Dr. Nettleton.”

“All right, yes.”

“Would you please turn to page twenty-five?”

Nettleton turned several pages, and again looked up.

“Do you see the drawings on that page?”

“I do.”

“Would you describe those drawings as specifications for lenses designed to correct the condition of strabismus?”

Nettleton studied the drawings.

“Yes, I would.”

“Would you say they’re identical to the drawings you made for Miss Commins?”

“Absolutely not.”

“Would you say they’re remarkably similar?”

“No, not at all. These are lenses designed to correct strabismus. My mirrors were designed to create an optical illusion.”

“These specifications were published in an industry journal in March of 1987. Would you agree that you had a reasonable opportunity to have seen them?”

“Yes, but I didn’t see them. And even if I had...”

“By comparison, would you say that your design adds more than a trivial amount of creativity to the design in this magazine?”

“I would say they’re entirely different.”

“Oh? In what way?”

“To begin with, the design in the magazine is for eyeglasses.”

“Well, isn’t your design for eyeglasses?”

Nettleton rolled his eyes.

“Your Honor,” Brackett said.

“Your Honor,” I said.

“Answer the question, please.”

“My design is for reflecting mirrors,” Nettleton said wearily.

“Well, those are eyeglasses hanging around the bear’s neck, aren’t they?”

“No. They couldn’t possibly serve as a tool for correcting or improving vision.”

“They look like glasses to me.”

“Your Honor, please,” I said.

“Sustained.”

“Would you agree that they look like eyeglasses?”

“Yes, but they’re not eyeglasses. That is not their purpose.”

“But the basic design is similar to the one in the magazine, isn’t it?”

“No, the designs are not at all similar.”

“You know, of course, that Miss Commins submitted your specifications together with her application for copyright?”

He’s trying to invalidate the copyright, I thought.

“Yes, I know that.”

“How did you come by this information?”

“She told me.”

“Did you tell her that the eyeglasses for which she was seeking copyright as part of her design were not entirely original with you?”

“They were original!”

“Did you tell her that a design for similar eyeglasses had been published in 1987?”

“I didn’t know that. And besides, they’re not similar.”

“But a few minutes ago you described those published drawings as specifications for the use of corrective lenses in the treatment of strabismus, didn’t you?”

“You asked me to read the title of the article...”

“But you agreed, didn’t you, that the glasses were designed to do exactly that?”

“Yes, I did.”

“And you also agreed that your glasses were also designed to...”

“In the loosest possible sense, is what I...”

“In whatever sense, you agreed...”

“Objection, Your Honor.”

“Sustained. Get off it, Mr. Brackett.”

“Tell me, Dr. Nettleton, you said earlier that Miss Commins came to you in April to show you her original drawings for a bear she’d designed.”

“Yes.”

“How do you know they were original?”

First the eyeglasses, I thought, now the bear itself.

“Well, they were signed by her,” Nettleton said.

“Yes, but how do you know they weren’t drawings premised on some other person’s idea?”

“Objection, Your Honor!”

“I’ll allow it, Mr. Hope. He earlier described the drawings as original. Answer the question, please.”

“Well, I didn’t know where her idea came from,” Nettleton said. “She told me it was her idea, I had to assume...”

“The same way you told her...”

“Objection!”

“...that the eyeglasses were your idea, when in fact...”

“Objection, “Your Honor!”

“When in fact the design for them...”

“Objection!”

“...had already been published as far back as...”

“Your Honor, I object!”

“Sustained,” Santos said.

“Your witness.”

The windows, three of them, were on the far side of the building, facing east, away from the parking lot. There was a view of a strip mall across the way, mini-market in it, video shop, Laundromat, dry cleaners, and bar. Two blond bronzed gods looking like beach bums in tank top shirts and baggy shorts were standing outside the bar, maybe waiting for it to open. A woman in a bathing suit and sandals walked into the Laundromat carrying a bundle of wash. It was still sunny and glaring bright outside.

Warren looked at his watch.

All right, let’s get to work here, he thought.

He took the cushions off the sofa, opened the bed — so simple a child of five could do it — hoping to find it neatly made, finding instead a tangled mare’s nest of sheets, pillow and a single blanket. The bed gave off a faint whiff of sweat and something else, he didn’t know what. He pulled back the sheets, looking for whatever might tell him he was right or wrong about what she was doing here in this apartment, but there was nothing he could see, so he closed the bed, and put the cushions back in place and turned to look around the room again.

Bright sunlight streamed through the windows behind him.

The air conditioner was off, the place was pitilessly hot. A pink baby-doll nightgown trimmed with lace at the hem was lying on the floor near the sofa, well, now he knew what she slept in. He picked it up, held it in his big brown hands, studying it. Put it down on the sofa, thought No, she’ll remember, and tossed it on the floor again, where he’d found it. Searched the floor, saw nothing that told him anything. Checked the cabinet on the right-hand wall as you came in the room, opening doors and drawers, found nothing. Checked a standing combination bookcase/bar/entertainment center — actually a series of black wooden shelves resting on a black iron frame — CD and tape player on one of the shelves, but no TV set, another bad sign, he kept hoping against hope he was wrong. Another round table, wooden, larger than the one in the kitchen, with two chairs that matched those in the kitchen, was tucked into the corner just to the left of the entrance door as you came in. A phone was on the table, its cord leading to a jack near the floor. An open address book was resting beside the phone. He pulled out a chair and sat.

What it all got down to in the closing arguments was a simple case of She Said/He Said.

On Lainie’s behalf, I argued that Gladly the Cross-Eyed Bear was her wholly original work, that she had designed the stuffed animal early in April, had consulted an optometrist shortly thereafter, and had copyrighted bear and accessories in May, at which time she had also trademarked the name of the bear. I argued that the crossed eyes and the correcting eyeglasses were part and parcel of the bear’s distinctive trade dress. I further argued that the notion for the bear had come to her through memories of her own affliction — and here I asked her to look directly into Judge Santos’s face so that he could see for himself the similarity of the bear’s eyes to hers — and a hymn she had learned when she was a little girl in Winfield, Alabama.

Brackett argued that Brett Toland — himself originally a Southerner from Tennessee — had been inspired by the same hymn and had suggested the idea for a cross-eyed bear to Lainie while she was still working for Toyland under an employment agreement that specified any fruits of her labor would become the sole and exclusive property of the company. Brackett contended that it was Toland himself who’d requested Lainie to sketch a cross-eyed bear for him, and she had delivered those sketches in September of last year, three months before she’d given the company notice. The bear he planned to test-market this Christmas was called Gladys the Cross-Eyed Bear because he hoped to capture a market not exclusively limited to Christians familiar with the hymn. The glasses on his bear made use of neither corrective lenses nor mirrors but were instead clear plastic lenses behind which uncrossed eyes had been painted. It was Brackett’s argument that Lainie had also designed these glasses for Toland, and that the more sophisticated design she’d later purchased from Nettleton was merely an improvement on Toland’s original idea.

He Stole It.

She Stole It.

That’s what it got down to.

Warren knew the names of most people in Newtown she would have to contact, but he didn’t see any of them in her address book. Maybe she was going someplace other than Newtown, maybe she figured she’d be too conspicuous down there, pretty white blond woman in the black section of Calusa. Maybe she knew someplace else to go for what she needed, if she needed it, but maybe he was wrong. He kept leafing through the book leisurely, didn’t want to miss any familiar name, but there was nobody there he could identify, so far she looked clean as a newborn babe. He closed the book. Looked around the room again.

She wasn’t expecting anybody to come in here and toss the place, so she’d have had no need to go stashing anything in ridiculous places like the inside of a lampshade or the underside of a toilet tank lid. Just her and her secret, if there was a secret, maybe he was wrong, maybe there was nothing here at all. He’d be the first to admit it, run out and buy them both a big dinner at the best restaurant in town. But he knew the signs.

Only place he hadn’t yet checked was the bathroom.

Santos was telling us that it was not the Court’s obligation to determine whether Dr. Nettleton had stolen his eyeglass design from the Optics and Lenses article. Which, by the way, he didn’t think had happened.

“In fact, I find that argument entirely specious,” he said, “and I’m rejecting it summarily. Rather, the duty of this Court is to determine whether the bear Toyland calls ‘Gladys’ is a copy of the bear Commins calls ‘Gladly’ and therefore an infringement of copyright. The Court must further determine whether the similar though not identical names of the two bears might cause confusion in the marketplace and therefore be an infringement of trademark. And last, as to the third count, the Court must consider whether the design features of the Commins bear are inherently distinctive or at least have secondary meaning among purchasers, in which case the bear may be granted trade dress protection. This is not a simple case,” he said, and sighed heavily. “I know, I know. This is already the middle of September, and Christmas is right around the corner. Ms. Commins has had feelers from two major toy companies, and Mr. and Mrs. Toland are eager to put their bear into production at once.

“But...”

And here he sighed again, and clasped his hands together as if building with his fingers a Here’s-the-Church-and-Here’s-the-Steeple edifice, resting his chin on the entrance door formed by his thumbs, peering out over them.

“I must give this serious thought,” he said. “Before I enjoin Mr. and Mrs. Toland from producing and selling their bear, I need to be certain in my own mind that what Ms. Commins charges in her complaint is absolutely unassailable. I ask you all to be patient. I’ll try to give you my decision by the end of next week. That would be...” He looked down at his open calendar. “The twenty-second. Failing that, and in accordance with federal law, I could extend another ten days. I can certainly promise a decision before then. In fact, let’s say no later than the twenty-ninth. Until then, the TRO will remain in effect. Are there any questions? Then let’s adjourn.”

Had to be a bathroom behind that closed door across the room. Warren left her address book open to the page it had been turned to, got up, pushed the chair back under the table again, and went to the closed door.

No surprises, no dead body in the bathtub or hanging from the shower head or sitting on the toilet bowl with a knife in his heart. Nothing like that. Thong panties drying over the shower rod, two of them white, the third one yellow, now he knew what she wore under her skirt. No bras in evidence. Twisted tube of toothpaste on the sink, at least she was still brushing her teeth and rinsing out her smalls. Force of habit, he took the box of Kleenex off the toilet tank lid, placed it on the sink to his right, lifted the lid, peeked into the tank, turned the lid over to see if anything was taped to it, put it back in place again, and put the box of Kleenex back onto it.

He opened the medicine cabinet.

Usual array of headache remedies ranging from aspirin to Advil to Tylenol to Bufferin. Bottles and tubes of sunscreen and lotion. Some prescription drugs in little brown plastic bottles with white lids. Several packages of tampons and maxi-pads. A few boxes of cold tablets and allergy tablets. A toothbrush in an unopened cardboard and cellophane container. A bottle of Pepto-Bismol. An empty DialPak dispenser. A toenail clipper. An open packet of dental floss. Several jars of moisturizers and mud. Nothing he was looking for. He closed the mirrored door. Opened the wooden door on the cabinet under the sink. Toilet-bowl brush. Wrapped bars of Palmolive soap; he visualized her showering. Wrapped rolls of toilet paper. An unopened box of Kleenex. A can of Lysol. He closed the door.

Pale blue shag rug in front of the toilet bowl. Matching blue plastic trash basket wedged into the narrow space between the sink cabinet and the bowl. He looked into the basket. Crumpled, lipstick-stained wads of Kleenex. Cellophane wrapper from a tampon. Wrapper from a stick of Wrigley spearmint chewing gum. Several soggy Q-Tips. He picked up the basket, rested it on the sink. Dug under the debris.

Bingo.

“He’s going to decide in their favor, I know it,” Lainie said.

We were eating a late lunch in a delicatessen near the courthouse. The place called itself the New Yorker, though the knishes and the hot dogs tasted as if they’d been made in Korea. Even the mustard was all wrong, a bright yellow stuff that lacked the bite of the grainy brownish blend my partner Frank insisted was essential to a true kosher frank. And besides, you had to pay an additional fifty cents for sauerkraut, which Frank said was outrageous. I wished Frank were here with us right this minute. Frank had a way of explaining law that made him sound like a justice of the Supreme Court. Frank was a comfort to distraught clients. On the other hand...

“I just think he needs more time,” I said.

“Why?”

“Because this isn’t a decision he can make lightly. He gave us fair warning right up front. Remember what he said?”

“What did he say?”

“He said, ‘The Court does not intend to be rushed into any decision.’ Those were his exact words. He’s aware of how much is hanging in the balance. For both sides.”

“Nothing’s hanging in the balance for Toyland,” Lainie said. “This is just another product for them. They’ll put it out in time for Christmas, if it catches on, great, if it doesn’t there’ll be another toy next Christmas and another one after that. But this is my future we’re talking about here. If Gladly makes it...”

“I understand, Lainie. But there’s no reason to...”

“No, I don’t think you...”

“...believe Santos will decide for the Tolands. Really. His caution isn’t unusual. There are factors he still has to consider, you know...”

“What factors?”

“Well, aside from deciding whether there was copying...”

“He doesn’t think there was. He said...”

“I know what he said.”

“He said he had to be certain in his own mind that Gladly really was copied.”

“Yes, but I think he knows...”

“How can you know what he...?”

“He dismissed that nonsense about Nettleton copying the eyeglasses, didn’t he?”

“That doesn’t mean he thinks their fucking bear was copied from mine.”

“Well, maybe not yet.”

“Maybe not ever.”

“The point is, Lainie, there’s more to this than whether or not there was just copying.”

“Yeah.”

Picking at her fries disconsolately. As far as she was concerned, Santos had already decided, and the case was lost. One eye on me, the other wandering elsewhere. Dipping a fry in the ketchup on her plate. Fine sheen of perspiration on her tanned face, the New Yorker’s air-conditioning unit had probably come from Pyongyang, too. Lifting the fry to her lips.

“What he’ll be considering in the next week or so...”

“He said the end of the month.”

“Well, he’s shooting for the twenty-ninth at the very latest. What he’ll be considering is whether we’d be likely to prevail on the merits should this thing ever come to trial.”

“Is that a possibility?”

“Oh, sure. He may, in fact, order a trial.”

“There goes Christmas,” Lainie said.

“No, no. If he goes that route, he’d probably ask for an immediate trial. He knows the importance of Christmas, he’s stated that several...”

“How immediate? Any delay would put me out of the running for Christmas. Matthew, you don’t understand how important this is to me.”

“I do.”

“No, you don’t,” she insisted, and put down her fork, and looked across the table, her right eye focusing for a moment before it wandered away again. I imagined her as a four-year-old girl enduring her first strabotomy. And then another one a year after that. The failure of both operations. At their first meeting, she’d told me she had cried night after night after night, wanting to be like all the other little girls, and knowing she never would. She seemed ready to begin crying again now. “I know Gladly is a winner,” she said. “And I know her time is now.” Talking about the bear as if it were a real person. “Not next year or the year after that, but now. Why do you think Mattell and Ideal are so interested? Because of my good looks?” She was, in fact, quite beautiful. “They know Gladly’ll sell in the millions. That bear is my future, Matthew. That bear is my life.”

And did begin crying.

I told her that I wasn’t at all convinced Santos had already made his decision. Told her the judge would be considering other things besides the copying. For example, as I’d started to tell her a moment ago, Santos would be considering whether we were likely to succeed on the merits should the case eventually go to trial. Considering, too, whether deciding for the Tolands would cause irreparable harm to Lainie...

“It would only ruin my entire life,” she said, sobbing.

“...or whether money alone could repair your injuries.”

“I wouldn’t take a million dollars...”

“Good, because if you were willing to accept a cash settlement...”

“For Gladly? Never.”

“...there’d be no grounds for enjoining them.”

“I told you no. She’s mine.”

Again sounding as if she were talking about a living human being and not a stuffed animal.

“Good,” I said.

“Yeah, good. What’s so good about it?”

She dried her eyes with a paper napkin. She looked across the table at me. Green eyes shining. Trying to focus. Losing the battle. Right eye wandering. Oddly, I felt like taking her in my arms, comforting her as I would a child.

“Everything’ll be fine,” I said. “Don’t worry. Please.”

She nodded.

On Wednesday morning, the first thing I heard on Channel 8, the local television station, was that Brett Toland had been shot to death aboard his yacht late last night, and that a former employee named Elaine Commins had been charged with his murder and taken into custody early this morning.