This case concerns a claim for copyright infringement brought by a wildlife photographer, Mike Biggs, against a wildlife artist, Pam Stern, who allegedly used Biggs’ images in designs which Stern licensed for reproduction on retail products. Stern allegedly incorporated three deer images from Biggs’ book Whitetails in Action in designs which the defendant companies (WEK Investments, Inc., B.E.I. Sportswear, Inc., and Sportex, Inc., together the “Kaverman Companies”)) later reproduced on pillows, T-shirts, and sweatshirts before selling the merchandise to Cabela’s (together with the “Kaverman Companies, the “Cabela’s defendants”) to sell in retail stores. After Biggs brought copyright infringement claims against Stern and the Cabela’s defendants, who reproduced and distributed her designs, the parties made cross-motions for summary judgment.

Stern and the Cabela’s defendants’ motion claimed that Stern’s designs were the product of independent creation and that they reproduced no original expression from Biggs’ photographs.

With respect to the defense of independent creation, Stern claimed that the deer images in her designs were an amalgamation of several images taken from source material she had collected over the years, but was unable to identify the material on which she based her designs. Over 23,000 copies of Whitetails in Action were sold after its publication and the allegedly infringed photographs appeared in both national and local publications. Stern admitted to having a brochure in which Biggs, but not his images, was featured, as well as to owning books similar to Biggs. However, Stern insisted that she did not possess a copy of Biggs’ book.

Based on the evidence provided and what the district court deemed the striking similarity between the images and the designs, the district court ruled that the record on summary judgment precluded the possibility of independent creation. Nonetheless, the district court declined to grant summary judgment as to the issues of access and substantial similarity because to do so would be tantamount to finding Stern made a false declaration or that she experienced a “complete loss of memory” when making the declaration.

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