This section contains the nature of the case and procedural background.

P is a commercial artist who developed characters called 'Penmen.' Penman is 'a deceptively-simple looking figure' that 'engage[s] in a variety of activities pulled directly from [his] colorful life experiences.' Penmen have 'round heads, disproportionately large half-moon smiles, four fingers, large feet, disproportionately long legs, and a message of unbridled optimism.' P developed rules and guidelines for drawing each Penman. These rules and guidelines include a specific shape for each Penman's head, specific length and height requirements for each character, rules on fluidity and perspective, and the 'Penmen parallel curve,' which P employs to 'create eye-pleasing shapes within the negative space.' P developed six posters featuring Penmen and registered them with the U.S. Copyright Office. Each poster contains hundreds of black-and-white Penmen in a variety of poses. The Penmen are arranged on the posters in multiple rows with consistent spacing. Many of the characters interact with one another, and some have only slight differences. The posters, some of which have golf or galactic themes, challenge purchasers to find identical Penmen within each poster. From 1990 to 2004, Prints Plus sold his posters nationally. The posters were best-sellers during the holiday season. P began selling his posters to Image Conscious, which distributed P's posters to stores across the country. Starting in October 1991, McGaw Graphics sold P's posters to numerous Boston-area stores, including the Harvard Coop, a student bookstore in Harvard Square. P expanded the Penmen line by making Penmen t-shirts and a Penmen comic strip, which eventually was printed in newspapers with a combined circulation of over five million. P also created a Penmen book, which is sold nationally. Starting in 1989, Ds designed and sold t-shirts 'infused with a positive undertone as a reflection of their beliefs.' Ds sold t-shirts from carts in the Cambridgeside Galleria and the Emerald Square Mall, both of which had Prints Plus stores that sold P's posters. In April 1994, John Jacobs (D) drew a sketch of a figure with a red face, wide smile, sunglasses, and a beret. The figure was enclosed in two circles. John (D) hung the sketch on the wall of the brothers' apartment. Eventually, John Jacobs (D) wrote 'Life is good' under the image. Ds named the image 'Jake,' a spinoff of their last name. Ds made and sold t-shirts featuring Jake at street fairs and to retailers. As demand for the shirts increased, John Jacobs (D) added a torso, arms, and feet to the Jake head. Jake was portrayed engaging in simple activities, such as biking, hiking, golfing, and playing soccer. Ds incorporated Life is Good in 1997 with the 'overarching themes of optimism, simplicity, humor, and humility.' Depictions of Jake have increased in complexity over the years, from Jake engaging in simple poses to Jake engaging in actions and wearing clothes. Ds contend they had never heard of the Penmen before P's lawsuit. P sued Ds for copyright infringement, claiming that various Life is Good Jake images infringed P's copyrighted works. Ds moved for summary judgment on three bases. They claimed the Jake images had been independently created, thus negating any evidence that the company had copied from P's posters. Ds argued that P had failed to show that Life is Good had access to the copyrighted works to copy them. Ds then argued that the Jake images are not substantially similar to the copyrightable elements of P's works. The court granted summary judgment to Ds because the Jake images are not substantially similar to the legally protectable elements of P's images. P appealed.

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