copying of protect the expression and the second point which is interrelated is that the complaint as pled properly stated a claim of not only striking similarity as are substantial similarity but striking similarity in  i'm talking about the operative complaints in each of the two cases that were dismissed which contained substantially i don't recall allegations not the one that was tendered were not accepted not the one that was tendered but ok got you going to the complaints that were that they can be rendered and the elements can be laid out in the design in this case on its face the operative pleadings that were dismissed contained images that showed that these were not lifelike representations of flowers but they were stylized renderings of flowers with leaves and petals and elevate and botha's and dots that are precisely the type work that should be entitled to broad protection under opus to all at least for purposes of the pleading and the pleading that were dismissed showed that design next to the h and m design which contain virtually identical if not identical elements in the same order and again given the ghazi's of ways that there are to render such works that similarity has to be found striking in fact melody did in the operative complaint it was dismissed is precisely what this court had indicated the last time we were here would sufficiently plead access through striking similarity so those first two points that  like to make are simply that that the complaint did properly allege a design that on face is entitle to coppery proj copper of protection allege the copying of protectable expression and in fact showed striking similarity the third point that i want to make is that even if there were no striking similarities the complaints that were dismissed should not have been dismissed because they were properly applied and there are three reasons for this the first is that the supreme court intimately specifically know that they do not require detailed factual pleading to be clear we agree with i mean of course how could i not agree with the supreme court but we acknowledge that the days when simply alleging the elements of a cause of action and hoping for the best a trial are should be gone but malibu in this case did not simply even in even the bare bones other access allegations and there they are somewhat bare bones that's not an element of the cause of action it's a fact that leads to an inference that designs are accessed through showrooms garments in the marketplace that's a fact it's not an element of a cause of action and while at the last time we were here there's a question why shouldn't we require further pleading for further factual allegations well the supreme court specifically says that's not necessary so the question is should it be required in the context of copper a case like this one and certainly it's for this court to say what level of factual pleading is necessary but there are two other reasons why a higher level should not be in the first is in the context of coverage cases the ninth circuit has repeatedly reaffirms that there is a sliding scale the inverse ratio rule between access and substantial similarity and this goes back to the one nine hundred seventy s the city marty croft case and a whole line of cases through the two thousand tens most recently the warner brothers which the ninth circuit has reiterated that where there's a higher degree of access shown a lower degree of substantial similarity is necessary to show converse lee with a higher degree of substantial similarity a lesser showing of access is required and on that scale the far end of the scale is striking similarity in which no other evidence of access is necessary where are you in this case on that scale well as we've indicated we think the complaint sets forth a claim for striking similarity but even if somehow this court said we're not convinced the sledge a striking similarity which the district court found well yes it identify the similarities as a non protective element right which again  well they removed the shading around it the netting in the background is less is less tight those are precisely that those are precisely the types of changes that are made in order to do a less expensive version of something they are from the printing process and in iraq with all the court the ninth circuit specifically just cast aside these differences instead of jury could easily find that those are simply the result of an inferior printing process which is exactly what's going on in this case so but again even if there's not subsist raking similarity there is unquestionably a high high high level of substantial similarity when you look at the individual elements and the layout of those elements is that technical three high high probably just jealous have to see your honor and so when my point though is that a one size fits all requirement for pleading access is inappropriate and in fact does a disservice potentially undermines the inverse ratio rule that says that what the court when the court looks at the level of substantial similarity that has to be taken into account in evaluating the quantity of additional facts that should be properly applied in access and in this case you've got a high level of substantial similarity even if there's been a striking similarity what the legal significance tell me between substantial similarity and striking similarity substantial similarity is where you can see the copying of protectable expression you can see which could include  the selection arrangement of elements striking similarity is a similarity it doesn't have to be identical but the similarity that is so striking start to seem so notable that  it's extraordinarily difficult to conceive of the works having been independently created it's just it's raises it's that level that it's and if you look side by side of the images in this case which applies striking or substantial i believe striking and that in and of itself is grounds for versal but i think there's a bigger issue here i think there's a bigger issue that this court could address if it so chose and i want to give you just really of that similarity is that a question of fact question while it's absolutely a question of fact for the jury in fact i believe the ninth circuit's model jury instruction seventeen point one eight on access specifically advise the jury that striking similarity is one of the ways that he knew that the access problem has been satisfied if i may there's a it and it's anecdotal but there is a case from two thousand and ten caribbean losing for his target it's a case that i personally was involved in where our client had found garm to target bearing a double border design where some of the elements were the same but a lot and been changed but the layout of the elements was all they knew this was a derivative of their work their design had not they could not establish widespread dissemination it just it was it was sold but not that much they had no idea how the defense got the design and they could not they didn't have a direct chain of access and the designs were not strikingly similar in that case it wasn't until the discovery phase that we found out that the designer of the offending pattern had used as inspiration a garment bought in the marketplace and when we pushed and we found out what that garment was lo and behold it was our client's design and before the case went to trial the defense actually stipulates liability in the case based on damages this is how when we talk about the at the elements would talk about the pleading at issue in this case about accessing garments in the marketplace this is actually how defendants and i don't mean in this case particularly but how clothing companies they check to see what's hot what's on trend what's being sold they look in the marketplace they get inspiration this is this is beyond possible this is actually it's a plausible way of access that is in fact the case and in the e k g case that i just mentioned if the plaintiffs were required to prove to plead the specific fact of widespread seven asian striking similarity or a direct chain of events the case a case that was a legitimate infringement case probably would not have made it past the pleading stage clearly need to be taken seriously but reading those cases instructs that they are concerned each ball was an antitrust case dealing with one of the largest telecom providers in the facts spreading spending over seven years the truly case involves high ranking government officials and these allegations of conspiracy that are inherently less plausible then a defendant taking a design that they don't own and flowers and courts have not uniformly applied the level of factual pleading necessary in cases but that there are two overriding principles that guide those decisions consistently and what the court said and i quote whatever the difference between these cases we can at least state the following two principles common to all of them the court goes on to say the first principle is the allegations in a complaint may not simply recite the elements of a cause of action but must plausibly suggest and entitle me to relief such that it's not unfair to require the opposing party to be subjected to the expense of discovery can you talk to me for a second about the district judges decision not to approve the stipulation for the filing of the second or third complaint depending upon which case yeah of course so we certainly feel that the complaint shouldn't have needed to be amended we shouldn't  standard of pleading is more likely particularly in cases like this to prevent legitimate cases from proceeding forward than preventing that than to prevent offending from an unwanted beast defending themselves pleadings that are currently before the court particularly in light of the player's actions to file a stipulation before any motion to dismiss was filed at the district court level the act of filing that stipulation is in itself an admission that the act of pleading before this court are insufficient and in fact as much was admitted during the meeting confer process well isn't that stipulation also it in mission by you that there's no harm or prejudice and having that new complaint filed your honor we extended the stipulation  a act of professional courtesy and in doing so we made it very clear that we would be opposing it would be folly motion dismissed on the pending pleading as we would be at this court remanded at this point why would you sti filing a new complaint if you're going to oppose the earlier complaint well rather than being a nice guy and i appreciate that and closer little inconsistent well we believe that it was our role to mean conf good faith and in fact we identified the insufficiencies of this complaint to the plaintive plantar said through error mr mistake that they had filed the wrong version and so this new complaint came into play and in our in our mind it was not our role to instruct the plaintiff what the correct action would be at that point and it was in the discretion the court whether or not to grant that stipulation or not and as all discussed briefly there was no good cause to grant that stipulation ultimately due to the factual findings of the court due to the copyrights that are at play in this case and if and in fact there were other mechanisms available after the stipulation had been denied plaintiff could avail themselves rule sixty motion and did not do that your opponent just said there was no prejudice in the new complaint what is the prejudice that because the district court cannot identify any prejudice nor give the district court identify any reasons other than the marginal entry saying no good cause the conclusion but without anything supporting that conclusion can you comment on both prejudice and could cost please absolutely we can speak to the the lack of good cause comes from what it already been established at the district court level and that would be that under specifically under but all vs paradigm talent and your daughter's question as to the legal difference between substantial similarity in striking similarity under but all versus part of town the works must be so similar as to preclude the possibility of independent creation but what the district court had before it was copyrights for both of the defendant works and that the district had previously made factual findings outlining the specific differences not only between the defendant's works and melba's work but in fact between the defendants works themselves  and those factual findings which cannot be overturned at this point absent clear and convincing evidence provided that good cause to deny the stipulation and this is why malibu cannot fix its de no matter how many chances is given to repleat because melba's allegations under clegg recalled awareness network and other authority do not need to be accepted when the evidence before the court when the factual findings made by the district court can you've just  distinguishing characteristics identified by the court in their orders for the motion to dismiss and that's an appropriate role for this court but are you talking about just the pictures of the allegedly infringing fabric and the plaintiffs copyright is forever we can look at those just as well as you and the district court can right absolutely but the the district court looked at the district court in both of the motions to dismiss that were pending at this point  know your guess asking us to pay some deference to the whatever the district court said i actually think everything the district said about that is just wrong but and then event we can look at the pictures just as well as the district court so there's no deference to be to be paid to what the upright in describing the supposed differences between the two pictures we believe that there is some deference in that the but on the motion to dismiss the review district court's role to do so does what for this past summer and rent mr vs likely case you you have held that there are circumstances where judicial determination on these issues the determination of these factual differences is appropriate cases preferable to extended discovery and trial period and this loses towards what is we believe to be the second scene of an issue in this case which is that whether pleading of independent creation in itself can be sufficient to state a claim absent access and during the previous appeal this case in two thousand sixteen this court provided explicit directions to  malibu as to how to meet the pleading standard including extensive discussion of requirement of pleading access by showing a chain of events linking the pattern to the defendants or sales figures provided by dates and geographic distribution information your mind me the i don't know if you guys were the lawyers who argued at the first time but we if i remember the complaint back then did not have the pictures right think the i think you guys gave us the pictures in your briefs or something or maybe they did but if i remember the pleading itself did not have the saying that is because i don't think we ruled out the possibility on remand that the now the textiles could go forward on a striking similarity theory right i just remember we had the pictures somehow before us on appeal but i don't know if they were in the pleading and so it seems to me on remand they if i'm right they did put the pictures in the pleading this time and so there you have it they look amazingly similar and at least at the i don't see why that's not enough for them to go forward on a striking similarity theory now maybe y'all will be able to show in fact that it was your fabric was independently created but that's for a much later stage of the case it seems to me well you know there's two points on that which is the first that the presence of the cause of the copyrights which themselves for the defendants works which are private face evidence of independent creation of a bar a finding of striking similarity under the vernal test i think the post date though the earliest at least   it is routine in some cases to have copyright registrations fall on the eve of trial and those are deemed to be that i guess i just i don't see the relevance of those copyright registrations again on a motion to dismiss that's obviously not something that's pleaded on the face of the complainant it's not even something i think that's proper for the district court to take into account in deciding whether the pleading is sufficient again maybe once you all get into discovery and get  the presumption of the liberty afforded those complaint those copyrights by the copyright act should be weighed in turn against the pleading of striking similarity that the plaintiffs have made and that the neither the circuit nor any other circuit has ever stated in the published opinion that a pleading of striking similarity in itself absent a plea of access is sufficient to survive a motion to dismiss  a motion to dismiss stage of the case yes your honor this is when there are no motion to dismiss cases in the published cases in which a circuit court has allowed the statement of striking similarity by itself overcome the pleading bar absolutely of access and that's particularly important in light of this court's explicit directions in two thousand and sixteen the last time this case was on appeal instructing the defendant on how to plea to access with the geographic distribution information with the dates and all the all of that and if you look at the active pleadings that are currently before this court the access pleadings are actually worse the access pleadings do not have widespread dissemination instead they only have the conclusory speculative access allegations for example that are that were rejected by this court and were rejected by the district court previously so it would seem that this court is maintaining and we would ask this court to maintain the requirement of pleading access to overcome the pleading bar and we believe that that is supported by you fall into on glee and supported by the copyright act because there is a heightened standard in attending to that they could flesh out their allegations and despite the directions of the district court despite the directions of this court they have not done that as it as i noted a moment ago the access allegations actually got worse and that suggests i think  and the other is an improvement on this we believe we believe there is some improvement but it's an insufficient improvement the statement of access is likely for widespread dissemination is hundreds of thousands of sales  units that are either internationally or throughout the united states it's not specified it's not specified as to time it's not specified as to geography as this court explicitly directed and we know that manufacturing in this case started in one nine hundred ninety eight and the only sales only distribution number is hundreds of thousands of units over a twenty year span that's not specific to not judge if it's not specific to time it does not provide an opportunity for the defendants to  continued defiance of the directions of this court the district court to improve those access allegations that that is what makes one reasonable that is what makes this claim frivolous and so we would ask you a firm of just records dismissal of prejudice and remand food information fees and  the just record get it wrong by cherry picking in its order certain dissimilarities between the two when that case teaches us to look at the selection and arrangement of unprotected elements that is the whole as well design the court specifically said that we could properly allege access through striking similarity play doing jackie what we did the complaint issue should not have needed to be amended the fact that malibu was willing to go above and beyond and put in the type of detailed factual pleading not required simply to avoid another chip here is certainly not an admission that there was anything wrong with the prior pleading and we're going to ask this court to hold that  complaint should not have been dismissed and was proper as pled thank you thank you the case a star you do submitted