the defendant offers proof that the plaintiffs product was copied from other works or similarly probative evidence as to originality.”). These photographs and artwork reveal that ERG’s costumes are quite similar in appearance to the copyrighted characters the costumes are based on. Accordingly, because Aerostar had offered evidence that ERG’s costumes were “not original but copied from another’s work,” the district court properly held that Aerostar had rebutted the statutory presumption, and the district court properly shifted the burden of proving validity — the threshold issue for copyright infringement lawsuits — back to ERG. See, e.g., Masquerade Novelty, 912 F.2d at 668-69; Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411, 414 (2d Cir.1985); Durham, 630 F.2d at 908-09 (<HOLDING>). B. Copyrights in Derivative Works Having
recognizing this presumption holding that the presumption of validity was rebutted where one look at the plaintiffs allegedly copyrightable figures revealed a complete absence of any originality holding that collateral review of the validity of a jury waiver in the absence of a rule 23a writing is not available absent any indication the defendant was prejudiced by the technical error holding that an adversecredibility determination was supported where the applicants testimony included at least one internal inconsistency and one omission and the petitioner did not provide corroborating evidence that would have rebutted those inconsistencies and omissions recognizing presumption