were substantially similar to mr nobody else screenplay specifically a reasonable jury could find that both a novel and drivel of who he the film copied a more then de minimu of protected expression from the screenplay thereby rendering the defendants liable for copyright infringement your libel you can see and please correct me if i'm i'm misunderstanding idea so yes that understandable is the abstract idea so why couldn't we say that it's also an idea that a couple that has suffered three minute miscarriages or or stillbirths find a baby washed ashore and me only following a recent still birth and decide to keep the baby conceal its origins by claiming that it is as it is stillborn are th now you say they way should you know what difference it is the same you're getting now down several levels from the top abstract idea i mean you can do that with anything you could say the movie casablanca is about a cynical american expatriate who opened a saloon and morocco on the ad right at the outset of world war two but then if you start adding in oh and he had never forget american piano player who played a certain song better than anyone else but he had been told by the boss not to play it anymore because it brought back bad memories of a failed romance and then of all the gin joints in the world she walks in with her husband yeah so you can say that's all an idea but i think at a certain point it's very hard but you have to draw the distinction between the idea and the expression of the idea where you draw it here i mean frankly for the other movie put it that way but but what we have how do we i mean we have or you know so the question is whether the whether there is copying a protected expression and whether as the district court appears to have found although the court opinion doesn't discuss the overwhelming majority of similarities apparently the district judge and certainly the defendants have argued very articulately that all of these similarities are  random or they're cherry picked or they're sent out fair in other words a center fair is is is a sequence of events that necessarily result from the choice of a setting or situation so you have to first to say i was the setting or situation you can't go into too much detail because then anything could be copied so i say first of all let's start with the most abstract setting or situation is childless couple who are desperate for a baby and a baby washes up in a book now as we tried to explain the brief there could be many reasons why a couple could be childless it wouldn't necessarily it's not necessary that there have been failed pregnancies stillbirths or miscarriages it could be i don't put this in the breach we could be a same sex couple in today's world it could be a couple where one of the partners infertile so the idea that they're of course there's going to be a miscarriage stillbirth seen with a trail of blood and the woman saying let me hold my baby that's the senate fair it will not necessarily but let's say it is judge castle let's bring it down a little bit more so that the unprotected will idea is a childless couple who've had who are grieving who have been who had failed pregnancies and now let's go to what happens first of all they've had three failed pregnancies and also there were three graves for these three pregnancies counsel for the novel defense said there's only one grave the in the in the novel because the first two were miscarriages the third was a stillbirth that's not true if you look at page a page one hundred thirteen of the appendix which is in the first volume the novel of page eighty five she goes and sits by the graves plural so there are three graves or three crosses that's not disputed that's not something that follows necessarily from the idea that we're positing next the last stillbirth there is a trail of blood and that woman is saying let me hold my baby  the woman is praying in both works the woman is praying by the crosses they say oh she's praying for completely different things in the novel she reciting a couple of parts of the lord's prayer if you look at it so you you cite eighteen i'm sorry you know the eighteen similarities yeah well actually i left out the nineteenth which is a big one that they send the boat back into the sea i overlooked and i apologize  you need a certain number in order to know i don't think so i don't think there's any magic number or any magic amount of taking you on a panel in the neon case where they're japanese translations and the opinion says  i think you are maybe joe sachs was says there's no magic dividing line twenty percent thirty percent it's the question is was protected expression taken in a more than de minimus amount  and by the way in cases that we all cite we cite they cite the judge cite cites williams v crighton the drastic park case this court said it is only when the similarities between the protected elements are of small imports quantitatively or qualitatively that the defendant will be found innocent of infringement that's a page five eighty eight in the same case that this court said page five ninety  as a vehicle to address a very modern and not unusual situation which has to do with the tension between a and the biological mother and the adoptive mother basically yes whereas that and that seems to kind of you know based on my limit where is the other one is almost like a parable about they're talking about using the same questions they are different my clients protected expression was taken at least as a jumping off point for this book without what they took from my client screenplay there would be no novel you've got to have that as the built basic building block it's not of small import it's almost the most important part of my client's screenplay it was was taken and as without it there would be no knob on let me explain the other conflict s comment above so it's a conflict between morality i'm sorry i'm sorry finish please it's a conflict between morality and selfishness here these people they've suffered here comes at providentially a baby comes they can there's a conflict between the man in the woman is identical in the two works the dialogue is identical contrary to what they say so that and that's unnecessary of a baby could wash up and both the husband wife has a dialogue  and word identical let me let me give you i'm going to give you word for word that the baby washes up they bury the in both works they bury the dead adult the mother in the screenplay the father turns out to be the father in the novel this is not mentioned in the district court opinion by the way they take the boat they get rid of the boat the husband no i'm sorry the wife in the screenplay the pious woman she says we don't know who this dead woman is but the baby must have a father somewhere that's a screenplay and so in the novel the husband who is the reluctant partner says we don't know who this man is there must the baby must have a mother somewhere on the mainland in australia waiting for the husband in the screenplay to overcome this reluctance says this is no accident this was meant us it was destined for us which seems to work in the novel that the wife says this can't just be a coincidence we should accept a skiff that's been sent to us and then she also says and we h two treatments have a different sensibility about them one in his is kind of a meditation about choices to be made and the other is is more of an action packed account so even though there are the similarities that you suggest if you step back and look at the the treatments there are great differences between the two as one might argue partly because they're two different genres but let me let me read to you what this court said in the two factors to frankie a case frankie in a page one thirty five total concept and feel which i think is what you're alluding to should not be viewed as a sin a quid non for infringement similarity that is otherwise cannot be real defense of bull simply because of a different concept and feel which echoes what judge hand famously said many years ago in one nine hundred thirty no plagiarists can excuse the wrong by point by showing how much of his work he did not pirate and that's what you've got here they took enough of course they added on of the things they added on flashbacks to world war one they added on the real biological mother gets eventually gets the baby because when the when the when the when the bodies are dug up the both of the husbands are suspected of murder by a constable and this is in the early twentieth century and that's significant for a reason i just thought  why i didn't put in the brief there was no testing for d n a then so in that time period either in my client's screenplay or twenty years later if it is twenty years later in the novel a car a childless couple finding somebody else's baby could pass it off as their own and there would be no scientific way of proving that that was not their biological baby but there are other conclusions i think the dialogue is very very striking and i think also when this is resolved and they decide to hold that and this is prefigured when she's lactating i'm sorry i forgot about that because she just had to stop but that's not a santa affair that's not inevitable so she can breast feed the baby in both works and this is prefigured with leaking milk and the husband's reactions one is captivated to see it the other is arrested to see it and then but you they just they decide to keep the baby and it leads to foreboding and stress and vomiting which is one of the few things the judge below actually pointed to as a similarity not the biggest one is it was it was assumed and in the in the in the lower court by the parties and the judge that there was copying that the similarities were sufficient to be probative of actual copying so we're not here so we're not here to say well there's also moses there's is the odyssey that's not the point this was the premise of this motion of the dismissal of the case was that these things were copied by ms wants it her first and only novel from my client so the only question is are they sufficient is it more than de minimis copying a protected expression i've tried to explain how these things are not random they're not scattershot pulled out to make a list i know some of the cases williams in fact says these lists are suspect that i mean how else am i going to try to show you in the district court that there are similarities you have to say what they are and the judge was supposed to have read the briefs the book the screenplay view the film which was never provided to her but there is netflix so maybe she saw it that way and i know you're all stuck with having to do that now i reserve two minutes i know i'm way over but the court elizabeth mcnamara for the defendants steadman or watts and simon and schuster i think your honour's pose the appropriate question here and that is how do you draw the line and this court has consistently drawn the line in copyright infringement actions involving narrative fiction by looking at the total concept in feel and evaluating the plot the characters the set in the themes two fan and standard statement that says that the total concept and feel should not be viewed as the four infringement i think that's that's correct i mean i think that you have to look at you do look at the whole but what what rast what every single copyright infringement test rests on is two core principles and here the plaintiff case runs afoul of each of them the first is in these core principles were recognized in your honour's gatos decision the first is the idea expression dichotomy and the second second is that the tech the  themselves control not the characterization of the test or the r or or the argument regarding what the tests do or do not have you look at the text itself and it is the text of these respective works when you look at them in their actual expression not the ideas that controls that dictated the dismissal below and we suggest dictates the affirm and it's here now he made an i think an important admission here and again you go back gedo to address it he said this morning my my counsel my learned counsel that what is similar here is merely a jumping off point that that's that's what similar well as we know from gay don't we know from many other cases when you have a similar idea and i'm happy to get into the providential arrival of a baby and how in fact in the expression there is no similarity beyond the abstract idea but when you have a similar idea into respective works that's to argue that that would be protected and that he owns that idea and that someone else can't use that same jumping off point would in the words of gedo contravene the underlying goal of copyright to encourage others to build freely upon the ideas and information and conveyed by a work so that alone by his own admission i think warrants the affirm and so this case wasn't the whole of counsel's argument i mean he also tried to point to any number of ways in which the story was developed i really summarizing now i don't mean to capture all of counsel's argument but the bow the crosses the statements of the parents sometimes put in the you know other parents mouth but me counsel did argue a number of specific ways in which the story was advanced do you want to tell us why you don't think that's enough to to warrant relief for and yes your honor i'd be happy to really add at its heart  the plaintiff argues that both of these cases start with the same providential arrival of a baby in a boat and that then the parents have a conflict over whether to keep that child or not and there  breastfeeding that occurs and there had been a prior stillbirth by in in the plaintiff's case three stillbirths than the other there were two miscarriages when you drill down as the law requires into how those each of those events are expressed in the respective works there is simply no similarity let's take the boat arriving the in the plaintiff's work and we are with you continue but can we start as you continue we do not admit that the expression of even his eighteen points are similar substantially similar and and so when you get like let's take the boat arriving in the plaintiff's work the the the the husband is on route to pay a strongman in order to impregnate the strong man's daughter he has money flies out of his hand he goes to the shore he for that we have a scene that's that is given a lot of detail about a woman who is in a breech birth it's violent it's bloody ultimately the woman dies he helps birth this baby he's alone on the beach he takes the baby back to his wife she accuses him of doing something wrong of somehow impregnat someone and then ultimately they decide to keep this baby because it is and they're going to tell people that they're still born baby was brought back to life and it was a miracle that's what happened in the sea in that scene also there is the breast feeding which they put a lot of weight on but with the breast feeding in that's in the plaintiff's work what happens is that the husband sees it and all of a sudden has a revelation aha we can keep this baby let's bury the woman and let's keep it and we'll say it's a stillborn and came back to life and it's a miracle ok that's the plaintive story let's look at the novel in the novel we have that there had been a stillborn but then the husband wife both independently here a baby crying they both go out they go together to the shore there's no violent stillbirth there's a deceased man in a boat it is a quiet except for their hearing a baby cry they ultimately determine that there is a baby girl who is three months old in the bow of the boat they take that baby back to their house they feed the baby with a bottle it is only later that evening that the wife breast feeds the baby and it's important to note because this is what expression is all about this is the motivations that and form and and distinguish works are the husband is arrested by seeing that he is a long term he is but will dirt because the husband recognizes that his wife is going to want to keep this baby and he knows it is wrong he knows that this is someone else's child and that that sets up the ultimate dilemma that informs the rest of the novel that he also focuses on that the both works involve a loss of a baby well we could not have more dramatic differences between the loss of the baby that occurs in these respective works in the plaintiff's work he dies at four days old when he's there climbing a cliff and incredibly somehow a wind blows the baby out of his arms and he tumbles down the to the shore in the novel the baby is not a baby it's four years old it's lived a few no one serious life with a parent in and the conflicts with the with the fact that there this record to support an abuse of discretion and that the fees awarded were entirely reasonable as the court found here prior to the commencement of this action we sent chapter and verse a letter to the and it's council outlining the very law that dictated that there was no viable claim and the and the analysis on the factual basis why there was no such claim he ignored that he went forward he filed this action he rejected forty years of law in this case in this court the court and yes the this report found that there was objective fun reasonableness with regard to his his reliance on law that that wasn't and controlling on the case and controlling law that she had found in this case and she also found that there was real deterrence that it wasn't just reliant on objective from reasonable but there was a motivation to award fees here because of deterren plaintiff would be in accordance with curtseying so at that clear your honor and the deterrence here the plaintiff falter to says how could there be deterrents when she didn't address every one of my similarities so how would someone know to deter the deterrence here is evident the deterrence here is that you should recognize that there is a fundamental distinction between expression and idea and that what this case has rested on from the outset and throughout is that he is trying to the plaintiff is trying to control in own ideas and not the expression of ideas and that's a important deterrence here it's an important one that publishers like simon and schuster face on a daily basis where they are hit with these over and over and over again of fundamentally flawed often usually by people and i believe this to be the case of the plaintiffs here who really believe in their case who really believe that there has been a taking i don't fault that but the reality is the council or someone has to apprise these plaintiffs and there needs to be a warning that there is penalties to be paid here and one penalty is the risk of real fees and so we would strongly urge the court to affirm the awarding of the fees as well thank you very much appreciate is that we didn't know at the outset and we don't know throughout the course of this litigation whether there was going to be an assertion of a non derivative similarity that would require separate briefing an argument and the district court properly found on both those grounds where we were being sued for seven figures and we're entitled we believe in the case law and under two counts of our choosing our clients are on the merits briefly we all  agree at this point that if miss mcnamara wins we win that there is no at this point in the litigation an allegation of non derivative copy so i will rely on what ms macrumors had for that proposition i will know that the concept and feel of the movie is cinematic obviously it's broad in scope there's it's about forgiveness it's it's beautifully right there's the characters are all very positive in there you know they wrestle with hard choices and at the end i don't want to give anything away because i saw the movie myself two point two hours that i did not build a client and it was lovely the you know as distinct from the screenplay which is a much harder version of of human nature so there is just that the broadest level of expression there is just vast differences with respect to attorney's fees the district court found that it was not a hard issue and based there was and we don't know we didn't cross appeal that a district court correctly observed the various components and features that defendants allegedly misappropriated are generalized concepts and ideas that are common to countless other urban high rise residential developments so an idea no expression of an idea that's what you said in the opinion is mcnamara says the narrative fiction you have to use this test the total concept and field test you look at the the dissimilarities i won't waste the time repeating it but please look at our reply brief pages five through seven and you will see that when simon and schuster represented by the same  am in fact the same is young associate who is an excellent lawyer when they're the plaintiffs sometimes they win when there's an unknown guy with an unpublished manuscript not so much when they went to judge or a cough and they wanted to get partial summary judgment on liability they didn't go into any total concept or feel they quoted castle rock ringgold they said you don't have to it's just was there a more than  of taking a protected expression and it doesn't have to be verbatim and you look at the professor chafee's old test the pattern test the sequence of events and you don't need any verbatim copying and that's where castle rock says by the way you don't need direct quotations or close paraphrasing any copying a protected expression and as as this court said and i read part of this previously in the and case yes there are differences we don't deny there are differences although what we said in the complaint has been missed misrepresented on page nine of their brief they say that on page twenty two of the twenty four of our complaint we have met that the that the plot the theme the setting that all that stuff is different we said the opposite we said they were the same except the plus diverge at the end please look at paragraph twenty four has been one hundred eighty degrees switched by them we didn't admit that even the district judge said the themes are similar and they were plot elements obviously that are that are quite similar but here's what this course said in williams soon to the of law but if it's even as an abuse of discretion under matthew bender you can reverse if the conclusions are based on a roni its determination of law if the  district court applied the wrong legal standard or make clearly erroneous assessment of the evidence was clearly erroneous assessment of the evidence because the district court has blatantly disregarded almost all the similarities but let's talk about the law let's talk about how the judge didn't follow curtseying curtseying reversed this court because the supreme court felt that this court was placing too much weight on objective reasonable s in that case reasonable n'est but c be unreasonable this they said no you have to look at the other factors there are four factors and there non exclusive there could be other factors this judge only looked at one factor she looked at she decided and i disagree vehemently why we're appealing that this was objective leon reasonable and she said and therefore automatically we have to deter other people from doing bring similar claims now as i said how would anyone know they had a similar claim to my client since that you can read the opinion and the opinion granting legal fees and you will ninety five percent of the similarities are not mentioned so that's first of all second of all we raised there were other issues that were raised that she just decided to disregard one was the film defendants claim that we were trying to bully them and that that showed an improper motivation on our part because we asked for six million dollars so it's in the record i wrote a letter on november fourth two thousand and sixteen to the defendants in closing the screenplay and asking for discussion and asking for an accounting of how much they had made on the book in the movie failing which if they didn't want to do that we would take six million dollars this was a bet number one best seller of the new york times best seller list for years which my client didn't know until the trailer came out for the movie i did that in good faith i let them stall for three months only after my phone calls that we got this letter that we lost those damages because under the patrol a case you know the robert deniro movie about raging bull case it said no more  latches for copyright infringement but you can go back three years under the statute he can't go back more than three years now this book came out in two thousand and twelve i wrote the letter in november two thousand and sixteen so the clock  ticking we lost three three months of damages because i was hopeful that we could have a dialogue we got a letter instead which is very similar all of this goes to the argument that you'd learn a bully we had we weren't doing this back to you or your knowledge to the district we were an award sorry we were improperly motivated which is one of the four curtseying and fogarty if factors also many of the cases when they find improper motivation they look for a copyright troll my  clients never sued anyone for copyright infringer in or anything else if he had they would they would have told the district court about it so the district judge in a footnote so i don't have to look at that but she did have to look at it it was a factor  brief and it cut in our favor then i also raise another thing with the district judge it's not just the need for deterrence is the need for deterrence or compensation consistent with the policy of the copyright act and i cited a case this in a footnote towards the end of the reply brief in this case that i think it's a decision by judge sweet that you know where there is such a great disparity of wealth with the the plaintiff is somebody that the district judge referred to as an aspiring screenwriter and the defendant is institutional entity that's spends his life being sued for the end litigating these kinds of issues has the money the resources to interrupt looking at the district judges that know just alluded to when i initially read that and the judge says at the conclusion after stating both parties arguments the court need not and does not hear a kind on plaintiff's motivation i construed that as something that operated in your favor that it was not the judge was not assuming that you acted with bad motives or you were ging us to conclude the contrary i think so you're i mean it's i don't know i'm not a mind reader but she had already found against us because she found objective man reasonable is and she thought that max stating her reasons and then she says so that defendants have not argued the plaintiff was improperly motivates the film  who argue the settlement plaintiff points out that the late time line the court meet not does not hear a pint so i assume that's a draw at a minimum but that it's not informing the court's decision well i said we just we just take it we just take what she says in text as the reason so i'm trying to find out what you think is the error shown by that footnote well she she conflated the main thing is she conflated deterrence with objective on reason was turned to factors into it are you arguing that there's something in the footnote that manifests error i can see how you're reading it judge reggie i read it the other way i read it well here's something helpful to the plaintiff and i'm going to just disregard because it was helpful to the plaintiff because they made her dream work says were bullying them by making a settlement offer and i'm trying to show that no we waited we lost damages my client is not somebody who goes ok but three you could read it your way to i agree with that and then the the food you the last what your way over time so could you just wrap up yes the last thing is that this decision will not be a deterrent to anyone and they didn't argue we argue that they don't respond to that point either of them in our memory is how would you know this you have a case similar to a case that has not been accurately just thank you but please