for the petitioner at this time i'd like to please reserve seven minutes for a bottle so let's keep an eye on the caucus of understand act exists to serve an underlying idea that we're richer as a society when more people are creating more artwork and it does that by saying by not giving anyone a monopoly on ideas but by saying that no one can copy another per another company or persons particular artistic expression of those ideas in this case the petition meridian textiles has an in house design team and artist to create artwork specifically so that those in the apparel industry can have a constant flow of new an aesthetic the appealing designs and in fact that's critical to their business model they generate business by having a library of original artwork and the respondents tops and downs were they were customer and they sampled for different designs and this lawsuit came about because those four designs or what our client thought were an authorized reproduction of them were found on garments at major retail stores now  drew this case out finding that one of those designs was not protective wall and that the other three were not substantially similar counsel helps this court if you don't use life like or not are protected will to the extent that there are a wide variety of ways of demonstrating and depicting those designs so i ask you a question about that so i know the zebra stripes aren't exactly linear yet there are more interesting than that but just as a hypothetical if you think of black and white stripes that are linear so you can have sick ones and you could have been ones but perhaps over time as people have more and more designs eventually you might have all of the possible combinations of black and white stripes if that were to happen would it become the case that there's no ability to copyright a black and white stripe pattern no your honor copyright law does not give someone a monopoly on their artwork if two people independently create substantially similar or even identical artwork each one would have copyright in their work copyright as the name suggests is the right to copy and so the issue here is was protect largest expression copied independent creation is always a defense to convert from this if you independently create something that looks just exactly hike something else and it's not that original because it's just black and white stripes it's still the case it could be copyrighted yes there yes it can be copyrighted but there would not be an infringement if the two works are independently created that are very simple works that are entitled to copyright protection both authors can claim copyright protection in their work and neither can claim infringement because there's been no copying the hallmark is the copying and so but what if someone does copy one then so two people make the same black and white stripes they both copyright them the third person sees number two and copies it right then number two would have a claim for copyright infringement number one would not if number one says hey you copied my design and number two says no in fact i copied that person's design number one would not have a claim assuming that number two was in fact independently created the court then granted summary judgment on the other three claims i'm going to discuss all four to gather i believe that that as a first step under the opus tell decision which the ninth circuit said where there are a gazillion ways to and that was the so it should be subject to broad protection if we begin with the premise that all four designs are intelligent broad protection the next question for this court then becomes what's the appropriate manner to determine whether or not there was copying and whether or not the basic idea was taken and the insurance test is more subjective was there the artistic expression of that idea taken now across tells us is that under the extr test it is the that's where you do analytic the section of you start to break things apart and in this case what the district court did was it applied that analytic to section two the intrinsic test because i don't think there can't be any real question that the idea of the two designs is the same one of them is a lace with six pedal flowers and the curved curved leaf elements and it's the idea if you describe does the same  same the multi animal print three prints there's a dispute us whether one of the prints of the same but the layout of the it is the the idea under the extrinsic test is the same the only thing left end is the intrinsic test and well due process basically requires that before judgment can be entered against our client as opposed to just our motion for summary judgment being denied that the court gave us an opportunity to address on the ground are you basing use of on some notion of due process under the the non movement or really more properly the party against whom summary judgment is being contemplated that all all justifiable interest in france is should be drawn its favor all you know which and the ability of a party to seek leave of court to add their judgment ten days twenty days to file in the opposing papers or further evidence do you find in any case it says this if you are right now i can't quote you isn't that what are buckingham cases it may be i don't have a case in front of me and i don't want to agree with something i don't know but even so i i think buckingham says you do need to give notice but doesn't cool if you'll also say that the judge can't grant to a sponsor a summary judgment less there's no question in the record and don't we have this issue here of these and authenticated exhibits if the judge had given you an opportunity to authenticate those exhibits could you have of course in fact i'd dispute that the exhibits were in fact  authenticated as indicated in a moving papers the declaration of howard deutch mn the principle of meridian included images of the garments and cads of the design but about authenticating the physical exhibit well the physical exhibits are exactly the same if he says here the it's impossible to attach physical exhibits to a declaration all we can do is attach the images to the declaration and then submit the exhibits to the court reconsideration admitted that it had received those exhibits concurrent with the reply brief and that's in the excerpts of record five five one see my i want to preserve time admissibility of its contents and i don't think there's any real dispute or question that the garments would have been admissible at trial with the proper foundation being laid which we think that it was through the declaration of mr deutsch m and going to take my remaining almost four minutes and save it for a bottle so thank you very much purportedly created is it's almost as a classic zebra design it's a classic imitation as zebra stripes as they appear in nature and as our expert showed and as is as can be seen in our answering brief it is impossible to even differentiate marie meridians zebra design from the prior art it is it is so you disagree with his description that if you create something on your own that happens to copy something else that it can't be copyrighted that it can be co i do disagree with that i do not think that that is the law i think the law says that there must be more than a mere trivial variation in order to get copyright protection so no copyright does not extend to designs as they appear in nature as the set of the case has instructed us and and in this particular case the zebra design that meridian purportedly created is not  subject to copyright protection in our opinion what could make a zebra design copyrightable the well i mean if it was more of a stylized design i mean if it if it if it taught away more from the classic look itself then i suppose it's possible if if they created something novel but i mean even why isn't that a fact question for the jury whether this design meets the criteria you just gave because i mean are there is a long presidential standard in in the ninth circuit for the court determining as a matter of law when applying the extrinsic test that objectively you can look at the protectable elements as between meridians design and apple e's designs and objective really you know there are no there really are no protectable elements in the super design that meridian created so there there is there is precedent for what the court did here if that answers your question there's also three other designs at issue in this case now the lower court found that those designs were valid but that they were not substantially similar to apple e's designs we believe there are other grounds for finding that summary judgment should be affirmed as well for example with regard to the animal design  police have put forth evidence that the design is an exact copy from a clip art book called belvedere published in two thousand and six before meridians purported copyright registrations are registered and we have submitted evidence in our brief at pages three seven to thirty nine showing a comparison of the clip art book to meridian suppose it animal design but you could have pieces of a design that are copied and still have the arrangement of them be original right yes you could but in this example this is an exact copy of something that occurred prior to ready and registration have you shown an exe that the exact arrangement existed prior i thought just the pieces had been in the car park according to you well the a rain there the idea of a multi animal print design is not novel i mean there are many examples in the public domain of amount of animal print print design meridian cannot own the idea of a multi animal print as i can only own the specific expression of that design and that specific expression is exactly the same as what appears in the belvedere copyright clip art book so that again the exact what appears in the clip art book the exact iteration of that design appears but not the combination of the three i don't know what you mean by iteration you're right the designs are they are separate in the clip art book but they are  but the idea of an animal print being combined is not original to meridian and there's i mean many samples that our experts have put forth showing multi animal print decides none the less  i were to say that the arrangement is entitled to some protection under our copyright law we believe that at most it would be entitled to thin protection i mean again it's with move  in judge klausner summary judgment order he actually found that the multiple animal design was entitled to broad protection but then he went on to apply the extensive test and said that the designs were not substantially similar so what i was arguing was an alternative theory to a firm summary judgment in this case that the design is in fact invalid however if if if the court science that the design is valid  only entitled to thin protection even if it was entitled only the thin protection it could have been copyright so we get to the infringement point don't we yes he was still get to the inference from play it would just be a different test on this essential similarity so we would be under the virtual identity test which is a higher standard even under that test i have trouble seeing how the district court could grant to a sponsor a summary judgment here my understanding is that for whatever reason i don't entirely understand there were sort of blurry pictures in the record and then later there were these other pictures in the record that maybe were submitted later maybe weren't perfectly authenticated that happened around the time of the reply brief but to grant to a sponsor a summary judgment the judge had to look at the whole record whether it was at the replied restage or not i mean they didn't have an obligation to move or summary judgment they could have waited to do this all the trial how how can the judge not look at those other exhibits and still grant you summary judgment to respond to i just don't see how this is appropriately done well i mean first of all the evidence that the lower court considered and on  first of all denying plaintiff's motion for summary judgment which they brought indicating that they thought that this could be decided as a matter of law on summary judgment right but the court looked to the evidence that  in support of its motion for summary judgment which was evidence attash the duration declaration which consisted of the deposits that in reading submitted to the copyright office and and photographs of the accused garments v lucas teaches that that is exactly the correct analysis the court is supposed to compare the cop the copyright deposit to the accused design so at this point we don't know i mean if if these fabric designs were summit which by the way to this day apple we have never seen the suppose at fabric designs once in this case we have no idea whether they are an exact copy of meridians deposits we don't know what they are there are not indicated and it's interesting that they were never put forth in the record on the motion for summary judgment they were never cited anywhere in meridians reply papers and even when radium brought this appealed to the ninth circuit  so they did the same exact thing they did to us in the lower court they tried to put it in after we didn't have an opportunity to respond so you responded to their motion i mean there's briefing on the motion about whether they should be able to submit this physical exhibit what sixty to consider there were no new facts in the law however because they were able to say wait a second now you've granted to respond to a summary judgment and there were these things in the record that you didn't consider and then the disregard said you're right i didn't consider them he didn't think he had to consider them because they weren't the evidence that ready and proffered on its motion for summary judge one thing to deny them summary judgment and say they need to go to trial and then they can do and to kate whatever they need to at trial it's another thing to and the case by granting you summary judgment but it is a little curious that  the fabric samples were not put in evidence on radiance motion and again we're not put in evidence on on readings opening brief to this court we don't know what the fabric samples are we have no idea but isn't that a reason why we need to send it back for teach that the correct test is for the court to compare the deposit the design deposited with the copyright office to defendant accused to sign thank you i got the accused i saw the physical exhibits are your shirts aren't they know they are to the well i mean nobody no i don't know i'm sure mr downer could could tell us but to this day we've never seen them but my understanding is that they were the fabric representation of his copyright deposits so first of all are their physical copies of the shirts that you were selling in the record not in the record for summary judgment no but in discovery yes they were produced counsel were reviewing this denotable how do you expect us to decide because in the light most favorable to the players but i'll am all i'm trying to articulate is that is in fact the correct test you're supposed to compare the deposit submitters the cop rate office and then  in determining what plaintiffs whether plaintiff has a valid copy like that as the right evidence to look at and it is supposed to be compared to defendant's work and there are many many many pictures in the record you know in the joint declaration in our opposition to places a motion for summary judgment in again in all of the paper submitted in regards to the motion for reconsideration there's there's  many images that can be seen of defendants work so i mean everything was in the record for the court to look at lace design and as as your owners have noted noted the lower court found that those designs were entitled to broad protection however the court applied the extrinsic test and determined that  the designs that the copyright deposits morning were not substantially similar to the designs of the defendants we believe that there are alternative grounds for affirming summary judgment as well namely that the burn out again should only be entitled to protection because it is the result a mechanical process there's there's nothing done by the creator to create that were not designed as part of a technical process and it should therefore be considered under the virtual identity standard and either under the substantial similarity standard or the virtual identity standard we do not believe that the designs are similar and we believe it true as indicated in the excerpts of excerpts of record e r three seventy two radians reply brief specifically advised the court that quote the garments that issue in this case and for pizza plaintiff designs will be lodged with the court and what we  papers incorporated the same images of the same garments as the garments that issue but not the government themselves well no we had the car and we had physical garments now defendants also say to seal or as the case it says you have to compare the work to the deposit copy but sealers a case where the original work was not available and the only copy was if it was a copy created after the defendant created their work it's i these designs are opposed to recognize that could be differences due to the fabric printing process which quite frankly we believe accounts for any of the perceived differences between the designs the court should have either granted summary judgment in favor of plaintiffs upon considering all the evidence or simply denied the summary judgment and we're going to ask this court and it's done over review to either consider the evidence presented and grant summary judgment in we think counsel for their informative presentation