Full opinion text
MEMORANDUM AND ORDER BOWLER, United States Magistrate Judge. Plaintiff Segrets, Inc. (“Segrets”) filed this action against Gillman Knitwear Company, Inc. (“Gillman”) on October 6, 1994. Count I of the three count original complaint alleges a violation of the Copyright Act, 17 U.S.C. §§ 101 et seq. (“the Copyright Act”), and counts II and III allege violations of The Lanham Act, 15 U.S.C. § 1125(a). The controversy depicted in the original complaint stems from Gill-man’s production and distribution of a sweater vest under the name of Christie (the “Christie I sweater”). Thereafter, Segrets amended its complaint to allege additional counts for copyright infringement and violation of the Lanham Act due to Gillman’s production and distribution of a cardigan sweater under the name of Charro (the “Charro sweater”). Segrets, a company which designs, manufactures and markets women’s clothing, holds a number of copyrights on its designs. One such copyright is for the fabric design entitled the Blanket Stitch Vest Style #736033 (the “Blanket Stitch design”) which generated a sweater vest under the same name (the “Blanket Stitch sweater”). Segrets submits that Gillman’s Christie I sweater and a subsequent modification, denoted the Christie II sweater, infringe its copyrighted Blanket Stitch design. Segrets also holds a copyright for a fabric design entitled the Primitive Patterns Cardigan # 126134 (the “Primitive Patterns design”) which generated a cardigan sweater under the same name (the “Primitive Patterns sweater”). Segrets contends that Gillman’s production and distribution of the Charro sweater infringes its copyrighted Primitive Patterns design. In response to a September 6, 1996 Order issued by the district judge, Segrets characterized the Lanham Act claims as duplicative of the copyright infringement claims. Segrets further stated that if the court allowed its summary judgment motion and its request for statutory damages and attorneys’ fees, then Segrets would waive the Lanham Act claims in the amended complaint, counts III through VI. After the district judge partially allowed the summary judgment motion, the parties proceeded to trial on the copyright infringement claims, i.e., counts I and II of the amended complaint. Segrets also did not object to Gillman’s proposed finding that there was no evidence of customer confusion as to the source of the Christie II and Charro sweaters. In light of this court’s resolution of the copyright claims, Segrets is ordered to advise this court on or before August 21, 1998, as to the status of counts III through VI of the amended complaint. On September 26, 1996, the district judge issued an oral ruling on Segrets’ motion for summary judgment and, thereafter, a written decision. With respect to Count I for copyright infringement of the Blanket Stitch design and Count II for copyright infringement of the Primitive Patterns design, the district judge allowed summary judgment on the issue of the validity of the copyrights. Under Count I, the district judge also allowed the summary judgment motion on the issue of: (1) Gillman’s actual copying of the Blanket Stitch design in its Christie I and Christie II sweaters; and (2) the substantial similarity of Gillman’s Christie I sweater and the Blanket Stitch design. Under Count II, the district judge allowed the summary judgment motion on the issue of Gillman’s actual copying of the Primitive Patterns design in the Charro sweater but denied the motion as to the substantial similarity of the Charro sweater and the Primitive Patterns design. Issues remaining for trial on the copyright infringement counts primarily include: (1) the substantial similarity of the Christie II sweater and the Blanket Stitch design; (2) the substantial similarity of the Charro sweater and the Primitive Patterns design; (3) the wilfulness of Gillman’s infringement, if any, of the Blanket Stitch design and the Primitive Patterns design; (4) the amount of statutory damages, if any; and (5) the amount of attorneys’ fees and costs, if any. During a three day bench trial, this court heard testimony from the following witnesses: Dorian Lee Lightbown (“Lightbown”), Senior Design Director of Knitwear at Segrets; Theresa Chang (“Chang”), Production Manager for Gillman; William Gillman, President of Gillman; Sigred Olsen (“Olsen”), Creative Director at Segrets as well as the founder of the company; Julie Smith (“Smith”), primary designer for Gillman’s women’s line of clothing in the 1990s until her departure from Gillman in the fall of 1996; Steven J. Kandrac (“Kandrac”), Senior Vice President and Chief Financial Officer at Segrets; and Professor Margaret Voelker-Ferrier (“Gillman’s expert”), Associate Professor of Design at the University of Cincinnati. FACTUAL HISTORY Segrets, a Massachusetts corporation, designs women’s clothing and owns the copyrights to the Blanket Stitch design and the Primitive Patterns design. Light-bown, together with Olsen, created both the Blanket Stitch and the Primitive Patterns designs. In 1992 Lightbown began the process of designing the Blanket Stitch sweater. Using her interpretation of a southwestern theme, she sketched the sweater line for line. She does not, however, consider col- or as part of her designs. Contrary to Lightbown’s belief, however, this court finds that color comprised part of the Blanket Stitch design as well as part of the Primitive Patterns design. In general, color forms part of the design process to create a piece of women’s clothing. It is important to female consumers in deciding whether to purchase an item of clothing. Color changes the appearance of a garment, sometimes dramatically. As noted by Smith, a person will not even look at a pattern if the color is poor or incorrect. In creating a design, Olsen, who typically chooses the colors employed in Segrets’ sweaters, testified that the design is drawn on a piece of paper “and then its colored.” Olsen chose the colors for the Blanket Stitch and the Primitive Patterns designs. She also stated that, “My part of the design is selecting colors.” In addition to the foregoing, color is an integral part of the Blanket Stitch design because it serves to distinguish and define the rows and patterns therein. Likewise, color serves to distinguish the rows and to create the marled look of the Primitive Patterns design. Moreover, the Blanket Stitch sweater was part of a color coordinated fine of clothing. Similarly, the Primitive Patterns design formed part of a color coordinate line of clothing thereby indicating the importance of color in the garment’s design. Finally, as required, see 37 C.F.R. § 202.21(a) (1997), Segrets attached a color photograph of the Blanket Stitch sweater and the Primitive Patterns sweater to identify the copyrighted works as part of its copyright applications. For the fall 1993 season, Olsen chose the colors for the Blanket Stitch sweater. The primary color is a deep blue with different shades of blue, brown, tan and white along the horizontal lines of the design. Segrets began selling the Blanket Stitch sweater in the summer or fall of 1993 at a wholesale list price of $39. After the fall of 1993 Segrets sold an embellishment of the Blanket Stitch sweater, done primarily in purple and peach colors, exclusively to Orvis, a well known chain of retail stores. In creating the Christie I sweater, Smith initially purchased the Blanket Stitch sweater and brought the sweater back to her office. She also sent the sweater to Gillman’s overseas manufacturer in order for the manufacturer to create a sample. Except for the colors, the Christie I sweater was a copy of the pattern of the Blanket Stitch sweater. In fact, Smith essentially instructed the manufacturer to make a copy the Blanket Stitch sweater except for the color. According to Smith, at some point in the approval process, William Gillman approved these instructions. Gillman’s overseas manufacturer produced 36 samples of the Christie I sweater which, except for the colors, were identical to the Blanket Stitch sweater. WiHiam Gillman first learned of Segrets’ copyright infringement claim vis-a-vis the Christie I sweater in April 1994. In particular, by letter dated April 18, 1994, Kandrac notified William Gillman of Gill-man’s unauthorized use of the Blanket Stitch design in the Christie I sweaters. Having received the copyright infringement notification letter from Segrets, Gill-man decided to forego its plans to sell the Christie I sweater. Instead, it modified the design of the Christie I sweater while retaining the overall look and feel of the Christie I sweater. In fact, Gillman made the modifications with the idea or goal of retaining the overall look and feel of the Christie I sweater which, as noted above, was a copy of the pattern of the Blanket Stitch sweater except for the colors. In order to modify the Christie I sweater, William Gillman simply instructed Chang to change the sweater so that it was not the same. He did not elaborate upon this cryptic instruction nor provide Chang with any specific guidance. Chang, who is not a designer, made all of the changes to the Christie I sweater in the course of one evening at home after work. She spent a total of two to three hours changing the Christie I sweater into the Christie II sweater. In making the modifications, Chang wanted to keep the same overall look and feel of the Christie I sweater. She instituted more then five changes to the Christie I sweater. Specifically, Chang moved certain buttons, changed a row of squares into arrows and added lines of embroidery to a few of the rows. The overall look of the sweater, however, remained substantially the same. In making the Christie II sweater, Chang did not alter the jacquard design of the Christie I sweater. The majority of the patterns in the rows remained unaltered. William Gillman approved the modifications which were then sent to Gillman’s overseas manufacturers. He testified that he understood that instituting five to seven changes in a garment was sufficient to avoid a copyright infringement claim. The manufacturer sent Gillman a sample sweater which William Gillman, Chang and Smith all approved. The modifications cost Gillman approximately $10,000. Gillman not only succeeded in its desire to retain the overall look and feel of the Christie I sweater in the Christie II sweater, but in selling the Christie II sweater Gillman did not change its catalogue which pictured the Christie I sweater. Customers ordering a sweater based on the picture of the Christie I sweater in Gillman’s catalogue actually received the Christie II sweater. Gillman did not inform the customers placing catalogue orders that they would receive the Christie II as opposed to the Christie I sweater. Few, if any, of Gillman’s customers complained to Gillman that they did not receive what they ordered. The slight modifications which Gillman made to the Christie I sweater therefore did not alter the overall look and feel of the sweater to the ordinary observer. Gillman produced and sold the Christie II sweater in three color combinations: black, hazelnut and a reddish brown referred to as Tuscan. Smith generally uses colors which will coordinate with clothing items already in a women’s wardrobe. It is customary in the industry for designers to purchase garments in retail stores, paid for by the designers’ employer, and to bring the garments back to work for inspiration in creating new and original designs. Designers commonly examine and use existing garments in the process of creating a new and original design. Garments in the existing marketplace therefore provide inspiration for designers to create new designs. Shopping in retail stores as well as reviewing cata-logues also allows designers to anticipate trends in the fashion industry. Designers, including Lightbown, also regularly review new issues of the various fashion magazines, such as Vogue, and fashion forecast magazines, such as Trend Union. * In addition, designers, such as Olsen, may send a garment to an overseas manufacturer in the course of creating a design. Gillman, however, takes this process a step further. Gillman does not limit the amount of money provided for shopping. At times, Smith will purchase a sweater on a shopping trip and send the sweater to Gillman’s overseas manufacturer with instructions for changing the color or texture. Although Smith usually provided Gillman’s overseas manufacturer with instructions, she nevertheless acknowledged that sometimes she would send a sweater to the manufacturer and simply tell them to copy the sweater as best they could. Defining the term “knock-off’ as taking a more expensive garment and copying it to make a cheaper version, Smith conceded that the Christie I sweater was a knock-off of the Blanket Stitch sweater. Moreover, Smith was aware that designers copyright their designs in the fashion industry. Copyright tags are usually sewn inside a sweater. Typically, they appear either at the back of the neck or along the inside side seam. Gillman customarily places its copyright label on the neckline. Segrets customarily sews its copyright notification tag along the sweater’s inside side seam. Both the Blanket Stitch and the Primitive Patterns sweaters had copyright notification tags sewn into the inside side seam. This court finds Smith’s testimony that she was unaware of the copyright notification tags until “somewhere in the course of this lawsuit” not credible due to her experience in the fashion industry, her constant contact with Gillman’s overseas manufacturer, and her extensive use of both sweaters to create the Christie I and the Charro sweaters. With the exception of the color, the design of the Christie I sweater is exactly the same as the design of the Blanket Stitch sweater. The rows in both sweaters reflect the same, identical patterns. Consequently, even though they use different colors, the sweaters are substantially similar as a whole to the ordinary observer. The design of Christie II sweater is also strikingly similar in its overall look to the design of the Blanket Stitch sweater notwithstanding the difference in color. Although the embroidery differs in places, the sequence of each row and the jacquard patterns throughout the sweaters remain almost identical. To the ordinary observer, the overall look of the Christie II sweater and the Blanket Stitch design embodied in the Blanket Stitch sweater is substantially similar. It is only with a close, line by line inspection that minor variations become apparent. The most visible change appears to a row at the vortex of the V-neck wherein a series of embroidered arrows appear in the Christie II sweater in lieu of a series of rectangles in the Blanket Stitch sweater. The differences in the colors of the two sweaters also emphasize certain jacquard patterns in one sweater more than in the other sweater. In short, Gillman produced and sold a sweater which, to the ordinary observer, was substantially similar to the copyrighted Blanket Stitch design. The ordinary observer would recognize the Christie II sweater as appropriated from the Blanket Stitch design. Unless she set out to detect the differences, the ordinary observer would be disposed to overlook them and regard the aesthetic appeal of the Christie II sweater and the Blanket Stitch design as the same. Not only did Gillman engage in this conduct but Gillman continued to sell the Christie II sweater with knowledge of the infringement allegations. Segrets discovered the Charro sweater after filing suit in October 1994 and thereafter amended the complaint to include a copyright infringement claim based on the Charro sweater. William Gillman first learned of the infringement allegation visa-vis the Charro sweater in the fall of 1994. At that point in time, Gillman was in the process of shipping some of the Charro sweaters to its customers. Lightbown created the Primitive Patterns design using marled yarns and one or more other garments as inspiration. Like the Blanket Stitch sweater, the Primitive Patterns sweater formed part of a color coordinated line of Segrets clothing which used black, khaki and neutral colors. Olsen chose the colors partly to evoke a primitive or natural as opposed to an artificial feeling. Segrets sold the Primitive Patterns sweater in only one color combination comprising a combination of black and neutral tones. Using the Primitive Patterns design, Segrets obtained a sample sweater embodying the design. Segrets applied for and obtained copyright protection, attaching a color photograph of the Primitive Patterns sweater to the application. Segrets sold a total of 1,816 of the Primitive Patterns sweaters in the above noted, single color combination in January and February 1994. The wholesale list price was $54 per sweater. In creating the Charro sweater, Smith initially purchased the Primitive Patterns sweater in early 1994 and took the sweater back to her office. She also purchased other crochet sweaters with a view to developing garments for Gillman’s 1994 holiday- season. Smith first envisioned and sketched a design for a sweater vest. She subsequently changed her decision and designed a cardigan which evolved into the Charro sweater. Smith also decided to use three color combinations: stone, blue or chambray and turquoise. The stone color combination is strikingly similar to the selected colors in the Primitive Patterns design. In the spring of 1994 Smith sent the Primitive Patterns sweater to Gillman’s overseas manufacturer to use as a model albeit with additional instructions. Smith acknowledges using the Primitive Patterns sweater to create the overall look and the general feel of the Charro sweater. She instructed Gillman’s overseas manufacturer to use the Primitive Patterns sweater as a sample for the yarn and the yarn mixes. On the other hand, she also instructed Gillman’s overseas manufacturer to change an area of the stitching to give a more open effect. Smith additionally instructed Gillman’s overseas manufacturer to change certain stitches, color patterns and lengths. Notwithstanding the changes, the design of the Charro sweater is similar to that of the Primitive Patterns sweater. As noted by Lightbown, both sweaters employ a mixing of yarns and different colors to create a contrast. The particular marling used in the Primitive Patterns sweater is unique to the design. Comparing the Charro and the Primitive Patterns sweaters, a number of the same rows are marled in the same manner. The Charro and Primitive Patterns sweaters also have similar patterns in each row. The most visible difference, however, is two lines of crochet stitching in the Charro sweater which are absent in the Primitive Patterns sweater. The tightness or openness of the stitching also varies as does the length of the two sweaters. Overall, however, the patterns, stitches and shapes employed in a number of rows are similar. Given the intricate detail and the large number of rows in the Primitive Patterns sweater, such similarities produce an overall similarity between the two sweaters. These and other differences, however, preclude a finding of substantial similarity except with respect to the Char-ro sweater in the stone color combination. As argued by Gillman, color correctly forms part of the Primitive Patterns design. The similarities between the colors employed in the Primitive Patterns design and the Charro sweater in the stone color combination are pronounced and striking. Together with the strong similarity in color, the similarities in the form of mar-ling, the patterns in certain rows and the various stitches create an overall impression of substantial similarity to the ordinary observer. Unless the ordinary observer set out to detect the disparities, she would be disposed to overlook them and regard the aesthetic appeal of the Charro sweater in the stone color combination and the Primitive Patterns design embodied in the sweater as the same. Furthermore, the overall effect of the Charro sweater in the stone color combination is such that an ordinary observer would recognize the sweater as appropriated from the Primitive Patterns design. William Gillman testified at his deposition in May 1995, after amendment of the complaint to include infringement based on the Charro sweater, that Gillman planned to continue selling the remaining inventory of the Charro sweaters but was not giving the sweaters to its sales representatives to sell at the present time. Rather, the earliest Gillman planned to resume giving the Charro sweaters to its sales representatives was November 1995. William Gill-man thereafter proceeded to sell the Char-ro “in-house.” Gillman purchased 304 dozen of the Charro sweaters in the following colors: 1,784 sweaters in the chambray color; 1,499 sweaters in the stone color; and 354 sweaters in the turquoise color. Accordingly, the 125 dozen Charro sweaters purchased in the stone color combination comprised approximately 41% of Gillman’s total purchase. Taking a trade discount deduction of $7,833, net sales for the 304 dozen of the Charro sweaters totaled $92,357. Roughly estimating net sales of the Charro sweater in the stone color combination as 41% of this figure results in net sales of $37,866. According to records detailing purchase orders as of July 26, 1995, Gillman had sold approximately 180 dozen of the Char-ro sweaters in the following colors: 65.11 dozen at an average price of $35.33 in the chambray color; 107.07 dozen at an average price of $31.13 in the stone color; and 7.02 dozen at an average price of $35.74 in the turquoise color. Gillman learned of the infringement allegations vis-a-vis the Charro sweater in the fall of 1994. Requested delivery dates for the Charro sweater in the stone color combination include dates in January and February of 1995, after Gillman had knowledge of its alleged infringement. In addition, the number of Charro sweaters in the stone color combination (107.07 dozen or 1,292 sweaters) sold as of July 26, 1995, falls short of the 1,499 total sweaters in the stone color combination which Gillman purchased. It is therefore reasonable to infer that Gillman continued to sell the Charro sweater in the stone color combination after being notified of its infringing conduct. Documents offered into evidence by Gill-man reflect a negative net profit on the Charro sweaters of $5,958. The negative net profit figure includes $74,527 in direct costs, a $924 factor fee, $9,515 in commissions for sales representatives and $13,350 in overhead. Using documents obtained from Gillman during discovery, Segrets presented evidence of 2,376 Charro sweaters sold by Gillman resulting in revenues of $78,568. Other documents viewed by Segrets and offered into evidence by Gillman summarize the above noted 304 dozen Charro sweaters sold, i.e., 3,648 sweaters. Figures for the number of Charro sweaters sold in the former document fall short of the figures in the latter document by 1,272 sweaters. Multiplying the catalogue listed wholesale price of $40 by the 1,272 additionally noted sweaters, Segrets provided evidence of $129,448 in total revenues for the Charro sweater. Segrets calculated Gillman’s direct costs for the Chairo sweater as $74,527. This figure includes transportation costs, direct factory or manufacturing costs to produce the Charro sweater, taxes and agent’s commissions. Segrets did not subtract the following items which, as indicated above, Gillman included in the calculations of its expenses: overhead ($13,350); commissions to sales representatives ($9,515); a factor fee or financing cost ($924); and a trade discount ($7,833) consisting of an allowance provided to customers. Using Segrets’ calculations, Gillman’s net profit on the Charro sweater totaled $54,921. Forty-one percent of this figure yields an estimated net profit on the Charro sweater in the stone color combination of $22,518. Gillman purchased 624 dozen of the Christie II sweaters in the following colors: 3,445 sweaters in the hazelnut color; 3,218 sweaters in black; and 824 sweaters in the color referred to as Tuscan. Gill-man’s financial documents show net sales of $116,127, taking into account a trade discount of $3,164, and a negative net profit of $8,862. The negative net profit results from subtracting direct costs in the amount of $98,362, a factor fee in the amount of $1,161, commissions for sales representatives in the amount of $9,282 and overhead in the amount of $16,183. Using documents obtained from Gillman during discovery, Segrets presented evidence of 3,462 Christie II sweaters sold by Gillman resulting in revenues of $62,755. Other documents viewed by Segrets and offered into evidence by Gillman summarize the above noted 624 dozen sold of the Christie II sweaters, i.e., 7,488 sweaters. Figures for the number of Christie II sweaters sold in the former document fall short of the figures in the latter document by 4,026 sweaters. Multiplying the cata-logue listed wholesale price of $20 by the 4,026 additionally noted sweaters, Segrets provided evidence of $143,275 in total revenues for the Christie II sweater. Excluding the redesign costs, Segrets calculated Gillman’s direct costs for the Christie II sweater as $87,730. This figure includes transportation costs, direct factory costs to produce the Christie II sweater, taxes and agent’s commissions. Segrets did not subtract the following items which, as indicated above, Gillman included in the calculations of its expenses: overhead ($16,183); commissions to sales representatives ($9,282); a factor fee or financing cost ($1,161); and a trade discount ($3,164) consisting of an allowance provided to customers. Using Segrets’ calculations, Gillman’s net profit on the Christie II sweater totaled $55,546. Segrets sells its sweaters primarily at the wholesale level to specialty stores and retailers such as Nordstrom or Mac/s. Unlike Gillman, Segrets does not sell its clothing to mass merchandisers in the price range of stores such as J.C. Penney. Lightbown, however, testified that she saw both Gillman and Segrets sweaters advertised in the same catalogue. Kandrac also testified that Segrets and Gillman had between 80 to 100 shared customers. In addition, he produced a List of 90 shared customers. For example, Gillman’s sales documentation evidences sales of the Char-ro sweater to both Nordstrom and Orvis, two of Segrets’ customers. Gillman, a family business located in Cincinnati with an estimated 40 employees, sells its sweaters throughout the world, including the United States. In the early 1990s, Gillman sold to small specialty stores and moderate department stores such as J.C. Penney. Gillman’s gross revenues for the past two fiscal years average approximately $19,500,000. In 1994 Gill-man’s gross revenues totaled approximately $15,000,000. There is little, if any, admissible evidence, however, that Gillman’s sales of the Christie II sweater and the Charro sweater in the stone color combination negatively effected Segrets’ sales of the Blanket Stitch and the Primitive Patterns sweaters. DISCUSSION Section 106 of Title 17 gives a copyright owner a number of “exclusive rights,” subject to limitations contained in sections 107 through 118. Stewart v. Abend, 495 U.S. 207, 220 & n. 3, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) (copyright author holds “bundle of exclusive rights” set forth in section 106). Segrets’ exclusive rights include the right to distribute the Blanket Stitch and Primitive Patterns designs to the public for sale. 17 U.S.C. § 106(3). Segrets also has the exclusive right to copy the designs and to incorporate the designs into derivative works. 17 U.S.C. § 106(1) & (2); Stewart v. Abend, 495 U.S. at 220 & 221-224, 110 S.Ct. 1750. To enforce these rights, section 501 authorizes “a cause of action for any infringement.” 17 U.S.C. § 501(b); Motta v. Samuel Weiser, Inc., 768 F.2d 481, 483-84 (1st Cir.) (quoting statute), cert. denied, 474 U.S. 1033, 106 S.Ct. 596, 88 L.Ed.2d 575 (1985). Sections 502 through 505 delineate a number of remedies including statutory damages, which vary in the maximum amount depending on the wilfulness of the infringement, and attorneys’ fees. 17 U.S.C. §§ 502-505. In order to prevail on a copyright infringement claim, the “plaintiff must show two elements: (1) ownership of a valid copyright and (2) copying of the protected work by the alleged infringer.” Grubb v. KMS Patriots, L.P., 88 F.3d 1, 6 (1st Cir.1996); accord Feist Publications, Inc. v. Rural Telephone Service Company, 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (copyright infringement requires establishing “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original”). The district judge already decided that Segrets owns valid copyrights in the Blanket Stitch and the Primitive Patterns designs. This court finds no reason to revisit this previously decided issue. The second element is twofold. Initially, “ ‘a plaintiff must first prove that the alleged infringer copied plaintiffs copyrighted work as a factual matter.’ ” CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc., 97 F.3d 1504, 1513 (1st Cir.1996) (quoting Lotus Development Corporation v. Borland International, Inc., 49 F.3d 807, 813 (1st Cir.1996), aff'g, 516 U.S. 233, 116 S.Ct. 804, 133 L.Ed.2d 610 (1996)). In order to accomplish this, a plaintiff may “ ‘either present direct evidence of factual copying or, if that is unavailable,’ ” as is typically the case, evidence “ ‘that the alleged infringer had access to the copyrighted work and that the offending and copyrighted works are so similar that the court may infer that there was factual copying (i.e., probative similarity).’ ” CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc., 97 F.3d at 1513 (quoting Lotus Development Corporation v. Borland International, Inc., 49 F.3d at 813). Dissection usually takes place at this juncture and expert testimony is permissible. Concrete Machinery, Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 608 (1st Cir.1988). Again, the district judge decided this issue of actual copying of both the Blanket Stitch design and the Primitive Patterns design. In this respect, he expressly concluded that the Christie I and II and the Chairo sweaters produced by Gillman resulted from actual copying of Segrets’ copyrighted sweaters. In the course of rendering the finding of actual or factual copying, the district judge also dissected the copyrighted works. This court finds no adequate basis to disturb or revisit these findings. I. Substantial Similarity Second, the plaintiff must establish substantial similarity i.e., “that the copying of copyrighted material was so extensive that it rendered the offending and copyrighted works substantially similar.” Lotus Development Corporation v. Borland International, Inc., 49 F.3d at 813; accord CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc., 97 F.3d at 1513. “Under this second step of the analysis, therefore, the trier of fact applies the ‘ordinary observer’ test, unaided by expert testimony, to determine whether the copying resulted in substantial similarity between the works.” Concrete Machinery, Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d at 608. Furthermore, it is the substantial similarity of the protectable expression which determines actionable copying as opposed to the overall similarity between the two works. CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc., 97 F.3d at 1514. In applying the ordinary observer test, therefore, the court ignores any substantial similarity or commonality between the two works in the ideas they embody. Accordingly, the idea of creating a sweater in a southwestern design as well as in a jacquard pattern lies outside the realm of copyright protection. The expression of the idea of creating a sweater patterned with a southwestern feel or look, however, is protected. Thus, Segrets’ selection and arrangement of particular patterns placed in rows of colors using particular stitches in the Blanket Stitch and the Primitive Patterns designs receives copyright protection and is considered in the course of applying the ordinary observer test. The burden of proof required for a plaintiff to establish substantial similarity will vary depending upon the number of ways in which the idea at issue can be expressed. Where the idea can only be expressed in a limited number of ways, “the burden of proof is heavy on the plaintiff who may have to show ‘near identity’ between the works at issue.” Concrete Machinery Company, Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d at 606-607. Conversely, when the idea is capable of being expressed in “an infinite variety of ways,” the plaintiff will bear a lighter burden inasmuch as “duplication or near identity” between the works is not required to establish infringement. Concrete Machinery Company, Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d at 607. The “test of appropriation” therefore varies depending on the “amount of creativity in [the] copyrighted work.” Concrete Machinery Company, Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d at 607 (paraphrasing Universal Athletic Sales Company v. Salkeld, 511 F.2d 904, 908 (3rd Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975)). In the case at bar, there is an infinite number of ways to express the idea of creating a sweater with a southwestern look, a jacquard pattern or a sweater with a natural or primitive look. See, e.g., Cofre, Inc. v. Lollytogs, Limited, 1991 WL 40366 at * 3 (S.D.N.Y. March 15, 1991) (noting “there is an infinite number of styles and designs that can be made into a garment for children”). Hence, near identity between the copyrighted designs and the Christie II and Charro sweaters is not required. The often quoted formulation of the ordinary observer test was initially made by Judge Learned Hand in Peter Pan Fabrics, Inc. v. Martin Weiner Corporation, 274 F.2d 487, 489 (2d Cir.1960), a copyright infringement case involving an ornamental design printed upon cloth. Quoted with approval by the First Circuit in Concrete Machinery, Judge Hand’s formulation views two works as “substantially similar if ‘the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.’ ” Concrete Machinery, Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d at 607 (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corporation, 274 F.2d at 489). The other formulation of the test quoted by the First Circuit in Concrete Machinery “ ‘is whether the accused work is so similar to the plaintiffs work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiffs protectible expression by taking material of substance and value.’ ” Concrete Machinery, Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d at 607 (quoting Educational Testing Services v. Katzman, 793 F.2d 533, 541 (3d Cir.1986)); accord Skinder-Strauss Associates v. Massachusetts Continuing Legal Education, Inc., 914 F.Supp. 665, 672-673 (D.Mass.1995); see also Knitwaves, Inc. v. Lollytogs Limited, 71 F.3d 996, 1002 (2d Cir.1995) (summarizing ordinary observer test in a case involving copyrighted sweater designs as both Judge Hand’s formulation and as whether the lay observer would recognize the accused work as appropriated from the copyrighted work). Cases involving copyrighted sweater or fabric designs employ Judge Hand’s formulation, see, e.g., Odegard, Inc. v. Costikyan Classic Carpets, Inc., 963 F.Supp. 1328, 1338 (S.D.N.Y.1997); Kenbrooke Fabrics, Inc. v. Holland Fabrics, Inc., 602 F.Supp. 151, 154 (S.D.N.Y.1984), the formulation of the average lay person recognizing the copy as unlawfully appropriated from the copyrighted work, see, e.g., In Design v. Lauren Knitwear Corporation, 782 F.Supp. 824, 830 (S.D.N.Y.1991), or simply cite to both formulations, see, e.g., The Prince Group v. MTS Products, 967 F.Supp. 121, 126 (S.D.N.Y.1997); In Design v. Lynch Knitting Mills, Inc., 689 F.Supp. 176, 179 (S.D.N.Y.), aff'g, 863 F.2d 45 (2d Cir.1988). As noted by the district judge, these formulations essentially connote the same standard. (Docket Entry # 65, p. 10). In either event, applying both formulations this court reaches the same conclusion and, thus, need not decide whether one or the other formulation is more apropos to the case at bar. In addition, “ ‘The sine qua non of the ordinary observer test is the overall similarities rather than the minute differences between the two works.’ ” Concrete Machinery, Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d at 608; accord Knitwaves, Inc. v. Lollytogs Limited, 71 F.3d at 1003 (examining the copyrighted sweater design and the accused work’s “ ‘total concept and feel’ ”); see also Little Souls, Inc. v. Les Petits, 789 F.Supp. 56, 59 (D.Mass.1992) (finding no substantial similarity inasmuch as the accused “dolls do not share the look and feel which distinguishes the [copyrighted] dolls”). Thus, in Knitwaves, the court, viewing the sweaters in the eyes of “the average consumer of these sweaters,” recognized that the differences in the sweaters did “little to lessen the viewer’s overwhelming impression that the two [accused] sweaters are appropriations of the [copyrighted] sweaters.” Knitwaves, Inc. v. Lollytogs Limited, 71 F.3d at 1004-1005. At the outset, the parties sharply disagree as to whether color formed part of the copyrighted designs and whether color should be considered in determining substantial similarity. As previously explained, however, color forms part of the Blanket Stitch and the Primtive Patterns designs. Furthermore, in applying the ordinary observer test, it is important to “consider the uses for which the design is intended, especially the scrutiny that observers will give to it as used.” Peter Pan Fabrics, Inc. v. Martin Weiner Corporation, 274 F.2d at 489; In Design v. Lynch Knitting Mills, Inc., 689 F.Supp. at 179 (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corporation, 274 F.2d at 489); see, e.g., Atari, Inc. v. North American Philips Consumer Electronics Corporation, 672 F.2d 607, 619 (7th Cir.) (noting that video games, unlike an artist’s painting, “appeal to an audience that is fairly undiscriminating insofar as their concern for the more subtle differences in artistic expression”), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982). Color to the female user of the copyrighted designs incorporated into the Primitive Patterns and the Blanket Stitch sweaters is something she will scrutinize in determining if the color in the sweaters complements her clothing. Additionally, both the Blanket Stitch and the Primitive Patterns designs were intended to accompany a color coordinated line of clothing. This court’s conclusion to view the selected color scheme as a component of the protectable expression in the Blanket Stitch and the Primtive Patterns designs is not without foundation in case law. See Knitwaves, Inc. v. Lollytogs Limited, 71 F.3d at 1004 (noting that Knitwaves’ original contribution to copyrighted sweaters’ designs consists of coordinating the design elements “with a ‘fall’ pallette of colors and with a ‘shadow striped’ ... or a four-paneled background! ] and ... arranging all the design elements and colors into an original pattern for each sweater”); Eden Toys, Inc. v. Marshall Field & Company, 675 F.2d 498, 500-501 (2d Cir.1982) (noting differences as well as similarities in color of features such as eyes and items such as buttons and scarfs on two snowmen in course of affirming finding that two snowmen were not substantially similar); Soptra Fabrics Corporation v. Stafford Knitting Mills, Inc., 490 F.2d 1092, 1094 (2d Cir.1974) (“color schemes were not to be entirely overlooked”); Peter Pan Fabrics, Inc. v. Martin Weiner Corporation, 274 F.2d at 489 (noting, in course of applying ordinary observer test, that “[b]oth designs have the same general color”); The Prince Group v. MTS Products, 967 F.Supp. at 126 (copyrighted design substantially similar to accused design in part because “color scheme is similar”); Odegard, Inc. v. Costikyan Classic Carpets, Inc., 963 F.Supp. at 1338 (“ ‘[asterisk’ motifs, them arrangement, and the choice of color schemes are protectable elements” of copyrighted carpet design); Cranston Print Works Company v. California Dimensions, Inc., 1990 WL 33580 at * 2-3 (S.D.N.Y. March 22, 1990) (collecting cases wherein color considered in determining substantial similarity of fabric designs); Heyman v. Salle, 743 F.Supp. 190, 193 (S.D.N.Y.1989) (noting that differences in color as well as other elements precluded summary judgment finding of substantial similarity); Lauratex Textile Corporation v. Allton Knitting Mills, Inc., 519 F.Supp. 730, 731 (S.D.N.Y.1981) (“lines, shapes and colors of the fabric designs ... are the same;” emphasis added); Couleur International Limited v. Opulent Fabrics, Inc., 330 F.Supp. 152, 154 (S.D.N.Y.1971) (“defendant’s fabrics of colors identical to plaintiffs is ... another factor leading to the conclusion that the aesthetic appeal of the fabrics is the same”). As these cases demonstrate, color may in certain situations constitute part of a copyrighted design and can therefore serve to support a finding of substantial similarity, see, e.g., Saban Entertainment, Inc. v. 222 World Corporation, 865 F.Supp. 1047, 1051-1052 (S.D.N.Y.1994), as well as a finding of no substantial similarity, see, e.g., Kitchens of Sara Lee, Inc. v. Nifty Foods Corporation, 266 F.2d 541, 545 (2d Cir.1959); see generally Ann Howard Designs, L.P. v. Southern Frills, Inc., 992 F.Supp. 688, (S.D.N.Y.1998) (finding substantial similarity but noting differences in color). Language to the contrary by the First Circuit in Concrete Machinery, Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d at 610, quoting Novelty Textile Mills, Inc. v. Joan Fabrics Corporation, 558 F.2d 1090, 1094 n. 6 (2d Cir.1977), is distinguishable. First, the quoted language, to wit, “ ‘mere changes in the color scheme on the copied design would ordinarily not protect the defendant from a claim of copyright infringement,’ ” Concrete Machinery, Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d at 610, is, when viewed in its original context, actually only the “writer’s view” as opposed to a finding by the three judge panel. Novelty Textile Mills, Inc. v. Joan Fabrics Corporation, 558 F.2d at 1094 n. 6. Second, the quoted language in Concrete Machinery is dicta set forth in a string citation of cases. Third, the language is not couched in mandatory terms. Thus, it is only “ordinarily” as opposed to “always” that mere color changes will not preclude a substantial similarity finding. In addition to color, courts examining the protected expression of copyrighted fabric or sweater designs and the accused works also compare similarities in: the arrangement and spacing of design elements, The Prince Group v. MTS Products, 967 F.Supp. at 126; In Design v. Lynch Knitting Mills, Inc., 689 F.Supp. at 179 (size, shape and orientation of design elements in two sweaters differed thereby rendering a different overall appearance); the use and placement of particular patterns such as floral borders, Kenbrooke Fabrics, Inc. v. Holland Fabrics, Inc., 602 F.Supp. 151, 154 n. 2 (S.D.N.Y.1984); the application of a motif such as a felt squirrel stitched to the sweaters’ surface, Knitwaves, Inc. v. Lollytogs Limited, 71 F.3d at 1004; the size of the elements, the choice of pattern and the repetitions, The Prince Group v. MTS Products, 967 F.Supp. at 126; see also Peter Pan Fabrics, Inc. v. Martin Weiner Corporation, 274 F.2d at 489 (noting that color scheme “and the arches, scrolls, rows of symbols, etc. on one resemble those on the other”); and the combination of certain elements and their placement in rows such as the use of triangle elements with parallel lines repeating in rows of different colors, In Design v. Lauren Knitwear Corporation, 782 F.Supp. at 831. In the case at bar, the ordinary observer, viewing the protectable expression in the Blanket Stitch design, would inevitably conclude that Gillman unlawfully appropriated the protected design. In other words, the ordinary observer would recognize the Christie II sweater, in each of its color combinations, as haring been appropriated from the protectable expression in the Blanket Stitch design. The differences in the color combinations do not, in this instance, avoid a finding of substantial similarity. The slight changes in the embroidery, the use of arrows as opposed to rectangles in one row and the placement and number of certain buttons do not obviate the fact that the overall similarities of the protectable expressions in the copyrighted Blanket Stitch design and the Christie II sweater are substantially similar. The arrangement of the rows, the patterns within each row, the choice of a straight line or of a line of triangles, the size of the triangles, the width of the rows and the stitches employed are almost identical in the Blanket Stitch design and the Christie II sweater. The ordinary observer, unless she set out to detect these disparities and minor differences, would be disposed to overlook them and regard the aesthetic appeal as the same. In contrast, the variations in the stitching, the marling of the yarn and the arrangement of the particular rows in the Primitive Patterns design and the Charro sweater are more pronounced. In contrast to the Primitive Patterns design, the Charro sweater uses two large rows of open stitching not found in the Primitive Patterns design. The analogous row of open stitching in the Primitive Patterns design uses a different stitch to generate a more open and delicate look. The color combinations of the turquoise and chambray Charro sweaters also contrast sharply to the color combination used in the Primitive Patterns design. Moreover, the colors serve to enhance the differences in the patterns and stitches chosen and arranged in the rows. Viewed overall, the ordinary observer would regard the aesthetic appeal of the Charro sweater in the turquoise and chambray color combinations as distinct and not the same as the Primitive Patterns design. On the other hand, a number of the rows in the Primitive Patterns design and the Charro sweater employ identical stitching arranged in the same manner and in the same width. In addition, the stone color combination in the Charro sweater and the selected colors in the Primitive Patterns design are strikingly similar. The differences in detail do not lessen the overall impression that the Charro sweater in the stone color combination is an appropriation of the protectable expression in the Primitive Patterns design. As in Knit-waves, much of this impression is conveyed by the similar color schemes. See Knitwaves, Inc. v. Lollytogs, Limited, 71 F.3d at 1004-1005. For these and other reasons, the ordinary observer, viewing the protectable expression in the Primitive Patterns design embodied in the Segrets’ sweater and the Charro sweater in the stone color combination from a distance of five to ten feet, would consider their aesthetic appeal as the same. It is the choice of color taken together with the similarities in the selection and arrangement of the patterns and the stitches used in the various rows which create, overall, the same aesthetic appeal to the ordinary observer. In addition, the ordinary observer would recognize the Charro sweater in the stone color combination as having been appropriated from the protectable expression in the Primitive Patterns design. Near identity is not required. In short, Segrets met its burden of proof of showing that the Char-ro sweater in the stone color combination and the protectable expression in the Primitive Patterns design are substantially similar under the ordinary observer test. As a final matter, Gillman submits that Segrets’ failure to offer into evidence the Blanket Stitch sweater prevents this court from making the necessary side by side comparison required to determine the substantial similarity of the fabric design and the Christie II sweater. Gillman contends that Segrets’ omission violates Rule 1002, F.R.E., and is therefore fatal to its claim under Count I for copyright infringement of the Blanket Stitch design. Under Rule 1003, F.R.E., however, “A duplicate is admissible to the same extent as an original unless (1) a genuine issue is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” F.R.E. 1003. Rule 1001(4), F.R.E., defines a duplicate as “a counterpart produced ... by means of photography. ...” The color photographs of the Blanket Stitch design accurately depict the design in complete detail. Consideration of the photographs in lieu of the Blanket Stitch sweater is not unfair. The color photographs of the front and the back of the Blanket Stitch sweater fully and accurately depict the design such that Gillman is not prejudiced by use of the photographs to determine substantial similarity. See generally 6 Jack B. Weinstein & Margaret A. Berger Weinstein’s Federal Evidence § 1003.04[2] (1998) (discussing types of unfairness which create sufficient risk of prejudice to preclude admission of duplicate). Contrary to Gillman’s argument, the photographs provided a meaningful opportunity for this court to determine substantial similarity. Accordingly, in such circumstances it is permissible to admit the photograph in lieu of the contents of the photograph, i.e., the Blanket Stitch sweater. See, e.g., United States v. Stockton, 968 F.2d 715, 719 (8th Cir.1992) (photographs of papers seized from residence properly admitted as duplicates to prove contents of papers); United States v. Patten, 826 F.2d 198, 199 (2d Cir.) (photographs of stolen checks in prosecution for possession of stolen checks properly admitted as duplicates), cert. denied, 484 U.S. 968, 108 S.Ct. 464, 98 L.Ed.2d 403 (1987). Furthermore, this court doubts whether the Blanket Stitch design constitutes a writing, recording or equivalent thereof within the meaning of Rule 1001(1), F.R.E. Even assuming that the Blanket Stitch sweater constitutes an original writing, recording or equivalent thereof within the meaning of Rule 1001(1), F.R.E., however, the facts in the case at bar do not implicate the concerns of the best evidence rule. Gillman’s reliance on Seiler v. Lucasfilm, 808 F.2d 1316 (9th Cir.1986), cert. denied, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987), is distinguishable on this basis. See Takeall v. Pepsico, Inc., 809 F.Supp. 19, 20-21 (D.Md.1992) (distinguishing Seiler due to absence of evidence that party destroyed original in bad faith), aff'g, 14 F.3d 596, 1993 WL 509876 (4th Cir.1993), cert. denied, 512 U.S. 1236, 114 S.Ct. 2742, 129 L.Ed.2d 861 (1994); Data General Corporation v. Grumman Systems Support Corporation, 803 F.Supp. 487, 491 (D.Mass.1992) (distinguishing Seiler, in part, because “there is no suggestion that Data General has destroyed evidence or has acted in bad faith”), aff'g, 36 F.3d 1147 (1st Cir.1994). There is no evidence that Segrets purposefully destroyed the original sweaters in bad faith. Indeed, this court had ample opportunity to view the Blanket Stitch sweater at trial. For these and other reasons, this court had a meaningful opportunity to determine substantial similarity and Rule 1002, F.R.E., does not mandate the admission of the Blanket Stitch sweater as opposed to the admission of the photographic duplicates. II. Wilfulness and Statutory Damages In lieu of establishing actual damages and profits, Segrets elected to recover statutory damages. Due to the oftentimes elusive nature of establishing actual damages, “Congress expressly provided copyright owners with the option of pursuing statutory damages.” Marvin Music Company v. BHC Limited Partnership, 830 F.Supp. 651, 656 (D.Mass.1993). As amended, section 504(c)(1) of the Copyright Act permits an award of statutory damages “with respect to any one work ... in a sum of not less than $500 or more than $20,000 as the court considers just.” 17 U.S.C. § 504(c)(1). The Copyright Act therefore shifted the unit of damages recoverable under the Copyright Act of 1909 from a calculation based on each infringement to a calculation based on each work infringed. Gamma Audio & Video, Inc. v. Ean-Chea, 11 F.3d 1106, 1116 (1st Cir.1993). In light of this court’s finding of infringement of the copyrighted Blanket Stitch design and the copyrighted Primitive Patterns design, Segrets is entitled to two awards of statutory damages based on each of these infringed works. In addition, in the event Segrets sustains its burden of proving that Gill-man’s “infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $100,000.” 17 U.S.C. § 504(c)(2). Conversely, where Gillman sustains its burden that it “was not aware and had no reason to believe that [its] acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.” 17 U.S.C. § 504(c)(2). In order to receive the lowered minimum of $200, the infringer must prove both a subjective good faith belief as well as an objectively reasonable good faith belief. Childress v. Taylor, 798 F.Supp. 981, 994 (S.D.N.Y.1992); see generally 4 Melville B. Nimmer & David Nimmer Nimmer on Copyright § 14.04[B][2][a] (1998). Gillman fails to sustain its burden. Moreover, in light of section 401(d) of the Copyright Act, the statutory minimum does not apply at least with respect to the Primitive Patterns sweater wherein the eopyright notice, affixed to give reasonable notice, contains the required year of publication. See Langman Fabrics v. Samsung America, Inc., 967 F.Supp. 131, 135 (S.D.N.Y.1997) (fabric designs are considered “writings” requiring year of first publication to comply with section 401(b)(2)). Finally, due to the wilfulness of Gillman’s conduct, this court would not assess damages below the $500 minimum thereby rendering moot the issue of the applicability of the reduced statutory minimum amount of $200. With respect to the statutory maximum, Segrets met its burden of establishing wilfulness both with respect to the Blanket Stitch and the Primitive Patterns copyrighted works. Wilfulness within the meaning of § 504(c) exists “if a defendant knew that his or her actions constituted an infringement.” Peer International Corporation v. Luna Records, Inc., 887 F.Supp. 560, 568 (S.D.N.Y.1995); accord Twin Peaks Productions, Inc. v. Publications International, Limited, 996 F.2d 1366, 1382 (“standard is simply whether the defendant had knowledge that its conduct represented infringement or perhaps recklessly disregarded the possibility”); Central Point Software, Inc. v. Global Software & Accessories, 880 F.Supp. 957, 967 (E.D.N.Y.1995); see 4 Melville B. Nimmer & David Nimmer Nimmer on Copyright § 14.04[B][3] (1998) (“ ‘willfully’ means with knowledge that the defendant’s conduct constitutes copyright infringement”). An infringer’s conduct may infer such knowledge. See Odegard, Inc. v. Costikyan Classic Carpets, Inc., 963 F.Supp. at 1341 (“Knowledge of infringement can be constructive rather than actual, and can be inferred from the infringer’s conduct”); Peer International Coloration v. Luna Records, Inc., 887 F.Supp. at 568. Turning to the Blanket Stitch design, Gillman’s Christie I sweater was an exact copy of the copyrighted work except for the color. See Kenbrooke Fabrics, Inc. v. Holland Fabrics, Inc., 602 F.Supp. at 155 (“high degree of similarity between the two designs” served as basis for finding of wilfulness). Gillman purchased the Blanket Stitch sweater which had an affixed copyright notice along the inside side seam. Segrets notified Gillman by letter ' of its infringing conduct both with respect to the Christie I and the Christie II sweaters. Segrets repeatedly informed Gillman by letter that continued sales of the Christie II sweater would constitute wilful infringement subjecting Gillman to increased damages. Notwithstanding such notice, Gillman continued to sell the Christie II sweater. “[EJvidence that notice had been accorded to the alleged infringer before the specific acts found to have constituted infringement occurred is perhaps the most persuasive evidence of willfulness.” Video Vietus, Inc. v. Studio 21, Limited, 925 F.2d 1010, 1021 (7th Cir.), cert. denied, 502 U.S. 861, 112 S.Ct. 181, 116 L.Ed.2d 143 (1991). Any alleged belief on the part of Gillman that its conduct was not infringing was not made in good faith and was not objectively reasonable. Gillman itself sold the Christie II sweater through a catalogue picturing the Christie I sweater. Nor did it advise customers of the discrepancy. Such conduct implies that Gillman viewed the Christie II sweater as substantially similar to the Christie I sweater, a sweater which Gillman knew was an exact copy of the Blanket Stitch design albeit with the exception of its color. Customers did not complain when Gillman shipped them the Christie II sweater in lieu of the pictured Christie I sweater thereby further evidencing to Gillman the substantial similarity of the two sweaters. Although Gillman made certain changes to the Christie I sweater, it nevertheless succeeded in its desire to retain the overall look and feel of the Christie I sweater in the Christie II sweater. See Knitwaves, Inc. v. Lollytogs, Limited, 71 F.3d at 1011 (infringer’s “admission that it set out to create designs having the same ‘look’ and ‘feel’ as Knitwaves’ sweaters” supported finding of wilfulness). William Gillman, who, according to Chang, even negotiated pennies, would not have expended the approximate $10,000 to change the Christie I sweater unless he viewed it as an infringement of the Blanket Stitch design. The similarities between the Blanket Stitch design and the Christie I sweater are also readily apparent such that any reasonable fact finder would view them as substantially similar. Finally, Gillman purchased the Blanket Stitch sweater and sent it to its overseas manufacturer to use as a model for the. Christie I and the Christie II sweaters. Chang’s revisions to the Christie I sweater, approved by William Gillman, did not materially or even significantly alter the overall design of the Christie I sweater. In sum, this court finds that Gillman intentionally and wilfully copied the Blanket Stitch design. It acted with knowledge that its conduct constituted an infringement of Segrets’ copyrighted design. Gillman also acted wilfully with respect to the Primitive Patterns copyrighted work. First and foremost, Segrets notified Gillman of the infringement yet Gill-man proceeded to sell the Charro sweaters in house. See Video Views, Inc. v. Studio 21, Limited, 925 F.2d at 1020-1021. The Charro sweater in the stone color combination is strikingly similar to the Primitive Patterns design. Gillman’s continued sales of the substantially similar Charro sweater in the stone color combination after Segrets notified Gillman of its infringing conduct provides evidence that it knew that its conduct constituted copyright infringement. Gillman’s actions were not in good faith or objectively reasonable. Smith purchased the Primitive Patterns sweater with the copyright notice affixed to the inside side seam. Her extensive use of the sweater to create the Charro sweater and her constant contact with Gillman’s overseas manufacturer infer that she knew of the copyright notice notwithstanding her testimony to the contrary. She then proceeded to use identical stitches arranged in rows of the same width and, in places, the sa