leave very difficult to meet the extrinsic test in a copyright infringement case involving the literary materials however it's not impossible nor should it be impossible after all in deciding a summary judgment motion the court does have to follow the law that means for example that the evidence must be construed in the light most favorable to the nonmoving part and also means that the decision has to be based on evidence that's actually in the record if the district court is going to decide as a matter of law that in the idea is commonplace or that the expression of an idea is a scene of fear it should not be allowed to make that proclamation although it is a self evident truth that's contained in the bible it should be required at least to disclose the basis upon which it made that decision doesn't make a difference what kind of a story we're talking about i mean could it judge say a love story or a love triangle is a set affair your honor i suppose that in the most generic sense there are some stories that might be subject to that about a father daughter reconciliation no i disagree with that your honor again  goes well beyond a father daughter reconciliation if that was the only similarity in these two works i would not be standing here today and i would not have been involved in the case it's because that's not expression that's an idea but that's  expression of the idea and again my feeling is that the trial judge she may have decided in her own personal mind that there was not substantial similarity in protective all elements and protec expression here but what i'm asking the court to do is to decide that a reasonable juror could disagree with her because i believe this case is different i understand it's difficult to meet the extrinsic test but i believe this case does and after all this court has from time to time over the years reversed decisions of the district court which have granted summary judgments to defendants in cases like this one and i believe that the facts of this case present such a scenario now today defendants feel that all they have to do is wave the ne and funky films in front of the district court and that automatically means summary judgment granted those cases were correctly decided on the facts of  but the facts of those cases are not the facts of this case there were similarities in those cases but the similarities were in the backstory they were in the premise they did not extend to the plots as they unfolded over the course of the story line they did not extend to the major characters and who they really were in furthering that plot in fact the court said that one case in the funky films case one of the work was actually a murder mystery and the other work it was impossible to tell what the plot was to be we have a plot according to the court it was just a series of interpersonal exchanges in they for example the reason that protagonist went to japan was similar in both stories however what happened once you got there and as the stories unfolded in the sequence of events occurred there was no similarity according to the trial court you know it's interesting because the way you're describing it is kind of the way i think about those cases but it seemed to me you were also arguing or perhaps it was only the makers that was arguing that difference is a r of and we should look only at similarities but in fact in every case don't we have to also look at the differences i mean let's say you have a main character who is a korean immigrant who struggles to find happiness in southern california but everything else is completely different the you don't stop with the one the one thing  constrained by what the meek is you know i understand that i believe ok that's what i was getting at because i have i kind of read your brief to be going in that direction and i'm concerned about that because it seems to me that one cannot put blinders on to the differences even when amassing the similarity you see is my difference with the amicus in my mind differences are relevant when those differences affect the sequence of events in the main story line or they affect the interactions between the major characters if they're relevant to those questions if they change those elements then i believe differences are relevant but if they are differences without any significance to the protectable expression to the story line as it unfolds to the sequence of events then i don't believe that the differences matter and i can give you a couple of examples from in one of the works the protagonist the male protagonist is a baseball coach and in the other one he's a baseball scout and to the trial judge that was a difference but i would submit to the court that any literary expert in the world would say in the context of these overall stories they were identical they were identical and the fact that one was a coach as opposed to being a scout had no impact on the major does one one guy's trying to get to the college world series and another guy is looking for prospects that's why it's significant that those though because they're significant to subplots but they're not significant to what's the main story line in both matters and  guess that's the key but if you're going to have problems with that too because i mean what the main storyline could be boring meets girl more loses girl boy finds girl i mean that's like the plot of four hundred thousand novels so that's the main storyline but that but that's not the main storyline in this case no i understand that but you seem to be saying if you have the main storyline and has like a little box around it and nobody else can have that say your main storyline there still has to be protected who expression but what i'm saying is if there is adequate protectable expression the fact that there are some differences that go to a subplot or a different aspect of the story that don't affect the main story line that starts at the beginning and carries all through the work then i don't think that those differences are material but if they do if they do affect the main storyline the actual protectable expression that what i'm saying then i think they are relevant i if i can give your honour's an example i think this would be helpful not every case is dismissed on summary judgment by the central district of california a few years ago i handled a case called miller versus miramax clan script had a couple of different plot lines to it but the major plot line mirrored the film they both involved a young william shakespeare who had achieved some acclaim he had achieved some notoriety he was generally known but he had not yet written his most famous plays he had not yet achieved his iconic status and he was suffering from writer's block into his and his producer was pressing him to complete his next play into his life comes the female protagonist who is engaged to another man who wants to act on the stage but in those days women were not permitted to act on the stage so she dresses up like a man in order to try out for shakespeare's new play he discovers the situation they end up having a relationship and their passion in the affair unable shakespear to go on and start to write again now her fiance discovers what's going on and he decides that he is going to expose what is happening here at the command performance of this new shakespeare play that is being performed shakespeare discovers what happens heath works that plot saves the day but the woman ends up having to sail off to the new world at the end of both works and as a result of that shakespeare is left behind broken hearted but yet passionate again about his writing and about life that's what was similar about the two works my client's work however had a a second plot to it that was totally different it was based on political intrigue that was going on in england at the time and it had nothing to do with shakespeare in love but judge prager sin in that case sufficient even though there were similarities because those similarities had no impact on the the most important story line as i just described i think that's a case that's this case there is a story line in omaha about the team and trying to win the championship but that is a secondary plot it is a subplot you can call it what you want but the story is really about the father and the daughter what happen to them years ago and how baseball came between them and the consequences you have the exclusive right to tell that story well again when you say exclusive right there are a lot of details in the story i'm not going to point nor i think can i to one thing and say father daughter baseball story or father daughter reconciliation i can't point to those things in that and say that that's protectable expression and that's all we had that we could win this case but what i'm saying is and i think this is outlined with the three experts that we submitted declarations from is that these are stories which have meat to them that have to tales to them and those details big  small are similar and indeed identical in many respects as you go along the story from the beginning to the end i don't think you can just take one aspect and isolate it by itself and another aspect and isolate it by itself and say you could ever have protectable expression but when you have like in that shakespeare in love case of a prominent story line that carries through the story in a similar sequence of events with similar details both big and small including some very fine details i believe that it's some point it becomes protectable expression even if there are some other things going on in one or both scripts that are subsidiary or a sideline to the major plot line so much might my problem with the district court's decision that respectfully i don't think it was done as sophisticated as judge craig or some did in the other case i think it was too linear i think it was too literal for example in one work the female character sandy is based on the father's favorite baseball player sandy koch laughs and she's thirty two years old in the other story the shar is based on mickey mantle who is her father's favorite baseball player and she's thirty three years old so the district court in this case those were differences after all one was thirty three and one was thirty two and one was named after mandel and the other after co facts but a couple ones a lawyer bucking to be a partner in the other is whatever she was a divorced mother down on her luck or you know what those are differences but those differences have nothing to respectfully i disagree with i think the point of the story is that she decided to give up that life for her father and i think that same thing happens in the other work but is it issues case i see you're down to about a minute a half you said you wanted to reserve to do you want to complete a thought before you s differences that we pointed out in our briefs is that the baseball action in the movie coach dodgers push to win the colorful series takes up fifty five pages of the one hundred seventeen page script that they submitted at the beginning one but the point of that story a major plot line of this story not a minor one and you can't papered over with descriptions fifty five pages are devoted to twenty plus baseball games who wins who loses in those games the strategy in those games there  seven one practice sequences there are a lengthy speeches given by the coach about how to play baseball how to be a person him being a coach is hugely important the story and why is that because it gives him the platform to give these speeches about life it gives  platform to show that he's this commanding person and unlike nikki his daughter sandy is somebody who needs to be lifted up and somebody does need to reconcile with and that's a basic point of overlap reconciliation but sandy's in a very troubled point in her life to the point to the fact reaching out to her saying let me help you change your wife i'm about to die by the way he doesn't disclose that fact that key fact about his illness to anybody in the story until it's all jimmy is kolker coach about halfway to the movie and sandy only  that awful fact late in the movie for adding a further wedge between the relationship and so what happens in the coach dodge movie is the coach is this iconic hero he's a famous person he's down and is like he's just torn that he's diagnosed with cancer and what he's doing is he's making amends at the end of his life he's reaching out to his team and saying we have to come back in the good players again he's reaching out to his daughter he's saying we need a bit a man's you need to go back to college i made a mistake by sending you when choir's i want you back in my life something very different is happening in trouble with the curve you have a very quiet man and gus who's at the end of his career and he cut to the chase there are differences there are also similarities yes why is that a jury question because this case this court has held as a supreme court this is it there's an incredibly important one to be drawn here by judges applying these tests to make sure free expression is protected and we want to have many many the way we protect expression is through copyright iraq so let me give you an example and i want to point to point as i do that number one there was an assertion in the reply brief he wouldn't get a chance to respond to that we did not bring these other works to the is that courts need to police these lines because these can become incredibly expensive cases in this case as it is a very quite a typical example of that we submitted a virtual mountain of third party evidence that mr mr brown our client had written this script and u c l a law school class that not only had his u c l a law full professor going to work with him over the years at this wraps he had tested under under penalty of perjury that all the story elements that were complained about in the complaint were early grass were written a book for they almost always publish is that correct they were written in the ninety's late one nine hundred ninety s they were bought by the bubble factory a big production company in town copies of it what's the relevance no no i'm not going to say that but i'm going to say what i'm going to ask you about though his discovery was not complete on that issue and the district court declined to rule on the discovery and climbed to rule on summary judgment on this ground is that true that is correct ok so i don't i guess i question whether that's an available separate ground on which we can affirm since discovery was not complete your honor i think you could go either way on that question but it's still r case law doesn't seem to go either way if the if there's open discovery disputes on an issue and the district court has reserved ruling i'm not sure we can go in there you could find we're not necessarily asking you to do that but you could find that there is an of discretion and saying that she would have permitted additional sciver given her other rulings that number one the prior creation evidence was very strong and number two the evidence that they had a deuced to date was not sufficient to rebut it but even if you don't reach the procreation around the reason why those facts are relevant is that access is disputed here and if you look at the cases that the amicus in particular rely on and an appellate lawyers on as well shaw metcalf in the city craft cases those are the cases they say look at those cases those are important as in each one of those cases you have access not only conceded but you have extensive access evidence of access there's no such evidence here and so what's a key point of distinction between those cases in this case it but is it isn't that their contention no credible evidence on their on their side showing access nor did they point to any during the district court they did submit these expert these two expert reports that said we think based on our reading of the two works these are written by the same and tonio had to reorder and reshuffle the scripts around to find these a certain similarities and frankly when they did the things that they did point out that were similar it was things like the words i and c room which appear on pages of many many many scripts it's not some special tick particular to any writer it's the way that all writer has designated that i'm starting a new scene here's where the scene it's in a room it's in the interior of a room or things like they used  to kind of and the thought before the next person speaks their own expert in his writing book so i used to look to use short punctuation and so judge fisher said i'm not going to rely on those experts i'm rejecting their testimony she did not strike the reports record properly exercise its discretion not to credit that report why why did it probably not credit that report because most of the things that they compared were non protectable elements and things that the law does not  witness or excluding testimony that's what this court described the process as in rice that's what they want but that's not what this judge did in rice and all i'd want to go refer back to your honor but i don't believe they case in one case he decided to explicitly excluded the experts testimony that was professor numerous testimony in another case he did what judge fisher did here which was look there's a bunch of reasons why i'm not going to give this any credence but i'm not explicitly going to strike the testimony and the reason why your honor it's not a factual determination about credibility as he says what you're talking about and are saying is virtually the same or as identical or as in dish of popping as in matter of  experts who the used in this case is the exact same methods the court said the methods you're doing there every jumbling the plots a kind of papering over the differences in the story of retreating to generalities that's not helpful to the legal analysis and so it's not and one thing that kind of grossly distinguishes the two movies is that mickey's trip with her father to its place over three or four days it's a very intimate look into those three or four days of her relationship with johnny her father her father's the law firm all this hurt that i've put in the kind of twenty four hour days constantly carry my blackberry around a laptop around so i leave that into something frankly i'm really good at and i was and i can do it my dad or do i go back omaha takes place over the course of a whole season it's very typical of us four to maybe you begin with the team kind of coming together in the practice mode you go into the kind of regular season and they have their ups and downs and then you get into the playoffs at the end and the one nice twist in this in this movie is that they lose and a great lesson is lost in the losing and it coach shows his real character in dealing so well with that loss trouble with the curve it's moved in its paces very different kind of continues on that arc upwards towards thank your honor i don't want to waste a lot of time on access because they don't think it's before the court system face at the say we submitted expert declarations five or six of them from former f b i agents all the way to some of the most prominent literary experts in this country and you're talking about richard walter and cyril antonio who are the head of the screenwriting faculty at u c l a and n y u respectively you're talking about the two prominent screenwriting experts in this country and mr your keys who is the other expert is a prominent internationally recognized literary analyst and so to so casually discard what they say in the problem with completely discarding what they say in this case is what that means is that there's no evidence in the record from which the trial judge can make her determination others the movie in this report right but other than that i don't know what the gist records qualifications were as a literary expert i don't know if the judge was a biochemistry major in college or if she was a comparative let me drink college so she's just a regular person who occasionally goes to the movies and you can see that the godfather is not the same as schindler's list you know and she should then you know what then she should tell us what it is that she's relying on even if it's her own self  pointed out all these things that are different from one story to the well i your honor i think she drew conclusions and they were subjective conclusions i don't think they're they were accurate but the bikini point is she doesn't say where she gets them from there was no contrary would counsel said there was no evidence in the record to show prior art or or this came from this prior work or that came from this part work all we have is a judge pulling it out of the air and saying trust us you know i'm a certain age i've seen movies in my life and i consider this commonplace that's a subjective way to approach this thing but this is supposed to be i understood from an extremely sick test point of view a professional  would've analysis if we're talking about what the average reasonable person should take away from these two works that's the intrinsic test as i understand it it's not the extrinsic test look now i understand that these cases when you're talking about ideas and expression of the ideas and i you know it protectable element standing alone these are complicated concepts and sometimes it can be a very fine line and what i'm telling your honour's is that this case is not funky films or b'nai this is a case yes there is a subplot and that subplot is not found in trouble with the curve but as the second circuit said many many decades ago a plagiarist cannot excuse what he did by pointing to that portion of the plaintiff's work that he didn't steal and what i'm saying is there is sufficient plot line of elements here they go from the beginning of the story to the end which are substantially similar if not identical in many respects they are materially important qualitatively important and there's a lot of them and i believe that when you consider all that that makes this a triable issue of fact and that a reasonable juror i'm not going to quarrel with what the district judge did in the sense that if that's her view of what she sees fine but that's not the test the test is