in appeal from summary judgment on behalf of the defendant now in every copyright case the plaintiff must prove two elements st that it owns a valid copyright and nd that the defendant copied the work we never reached the nd element in this case because the court ruled as a matter of law that there is no protection for the plaintiffs work it three d sculpture the district court committed error in two regards in that respect st the district court ruled that the sculpture in question which was registered by the u s copyright office as a work of the visual arts a three d sculpture was a useful article and the nd error that the district court committed was to conclude that as a useful article it did not incorporate protectable features so let's focus immediately on the st error what is a useful article well in some lay terms useful article is understood as anything that has utility but that is not the way congress has defined it the statute seventeen u s c section one a one defines a useful article as an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information therefore anytime we have something that merely portrays the appearance of a given item it is not by definition a useful article that is the situation that we are in here to start with some relevant precedent even b b you are opponent concedes that an animal knows mask is not a useful article technical drawings for machinery are not useful articles and a model airplane is not a useful article here what we have is a three d sculpture that portrays the appearance of a skeleton the name of the sculpture is student manic and one and in a fanciful and artistic way student mannequin one portrays the appearance of a skeleton in fact interesting lee the question of protection for mannequins has been adjudicated by sister circuits which both concluded that the mannequins in question were not useful articles precisely because they portray the appearance of something both of the cases happen to be against the same defendant then chase taxidermy in the st case the hard case the nd circuit was concerned with fish manikins and the argument that the defendant made is the same argument that b b you makes here namely that these are useful articles the nd circuit rejected that proposition to quote the court the fish mannequin is designed to be looked at that the fish mannequin is meant to be viewed clothed by fish skin rather than naked and on its own makes no difference the function of the fish form is to portray its own appearance and that that is enough to bring it within the scope of the copyright act the same principle applies here and moving from the nd circuit to the th circuit case also involving the same defendant in superior form builders the th circuit commented even though covered with the skin the mannequin is not invisible but conspicuous in the final display none of the expressive elements are lost by covering the mannequin with the skin thus any utilitarian aspect of the mannequin exists merely to portray the existence of the animal the same circumstances are present here it's possible to put some clay over mr zurich's matic and and it's possible to appreciate it for its own sake whether clay is put over it or not the only function of the mannequin is to approach the appearance of a skeleton given that that that the sole intrinsic utilitarian function is as such to portray the appearance the does not constitute a useful article it is therefore entirely protected as a sculptural work under the terms of the copyright act and for that reason the district court committed error it's reversible error which requires a to the district court so that both elements of a copyright infringement case may unfold moving forward the nd error that the district court committed was to determine even if it were a useful article that stands outside copyright protection so let's imagine for a moment that the sculpture in question was a useful article we can come at that by imagining a different case in which not zurich but someone else designed a skeleton to be adorned with clay we can imagine a skeleton that is hollow with a cylinder in the middle which has an embossed legend in search clay here we can that would be a useful article that would be an article that has an intrinsic utilitarian function if the if that were the case that we were considering we would be governed by the supreme court's recent authority in star at let it go in that case the supreme court defined how to determine whether a useful article should be subject to copyright protection and the in unseated two requirements the st is extremely straightforward the decision maker need only be able to look at the useful article and spot some two or three dimensional elements that appears to have sculptural qualities so in that hypothetical clay extruding skeleton that we imagined there would be sculptural features if the clay extrusion simply consisted of a metal cylinder without any features that it would fail that st test but if it were designed as a full skeleton then it would have sculptural features the nd test that the supreme court outlines is that using the language of the state of the statute that it be capable of his existing independently of the utilitarian aspects of the article and for that reason the u s supreme court ruled that the features must be able to exist as its own pictorial graphical sculptural work if it is a madge and apart from the useful article so in our hypothetical of a skeleton that also had functionality for storing clay the question is if we separate those features out can we still imagine that there is a sculptural work and in that hypothetical case that i have just conjured up the answer is extremely straightforward there would those sculptural features in fact if we look at the reported decisions that the various circuit courts handed down before the supreme court ruled in star athletica we see that almost all of them would  obtain copyright section the only ready example that i can think of that would still be denied protection after the supreme court's star athletica ruling is brandy or that's the case if your honour's will remember bicycle in that particular instance if we separate out the useful features and imagine it without the useful features there would be nothing left because all there was was undulating metal and taking away that metal would leave nothing in the other cases when we perform the analysis that star thought a command's we are still left with a sculptural work and for that reason in this case in particular we would still have all the sculptur features that mr zurich imbedded into a sculpture work and plainly there should be protection for both those reasons we submit that the district court committed error and unless there are any immediate questions i would like to or part well judge mckay that that is a beautiful question that could be design for a law school hypothetical because the facts match the precise facts of the supreme court's footnote two in which they talk about the protect ability of a shuffle and in that footnote justice thomas remarks that a shovel is still a shovel and still has a functional usage even if it is displayed in a museum and therefore judge mckay not having had the benefit to see the sculpture in your hometown i would posit that if a real shovel were used in the sculpture that aspect of the sculpture would not be subject to protection in other words the man who has a shovel in his hand if we focus only on the shovel in his hand that portion is not subject to copyright protection because it's an actual work that has an intrinsic  even though it's not being used to dig in that context the rest of the sculpture however would be fully subject to copyright protection the depiction of the man in the woman and that and the child those would attract full copyright protection copyright council's presentation was a and informative and a lesser of overview of the current status of copyright law which i think that i appreciate i hope the court appreciates that as well but what is absent from counsel's presentation is the record evidence the record evidence on appeal that was presented to the court at the summary judgment stage and on that record the district court  record that support the conclusion that it it has an intrinsic utilitarian function that is not merely to portray its own appearance well we know what he said in his order of reconsideration is my recollection is that anything that the student when manic and it's a useful model of skeletal idea is that it is a meaningful armature upon which students can explore muscular ideas that it contains clearly and marks and paths to guide the user in accurate why is there this utilitarian value in other words if the skeleton look like the skeleton of a fish or of a koala bear would it still have this eula tyrian function for the students different from those taxidermy well i'm really not i'm just saying so so you're saying so a student of balance body university i don't know what they teach about what a university but if they're teaching people about that  muscle where the muscles are where the bones or to use a model of a koala bear i don't know how you can teach that for the skeleton of a koala  i think judge moore was realistically say note that the utilitarian value is because these two sculptures that are subject to dispute or the were trail of a human skeleton and that's where the know which muscles to press during the massage so it's essentially to know where the muscles go the student can use a koala model and what i think the court was saying what judgement was saying is that the value is like the skeleton of a fish it has to look like a human skeleton and so the little jury in value lies solely its appearance not like a to have utilitarian value and it will get all sorts of different ways but which will with it or what's wrong with that argument is that it's similar to the case in pivot point where you have a mannequin you have a human form and it was designed to application i believe that's what the court said and so that takes it beyond simply appearing as a as a skeleton itself and the utilitarian utilitarian function lies in how it is used by the students that use it roll out a piece of clay and then just drape it over the skeletal model this is a very interactive process where the students form they roll out specific muscles some muscles are larger than other muscles they they themselves roll those muscles out and attach them to the elative so that the end product does not have any expressive elements it does not have the skeleton in motion it does not show a gesture it does not show a tilt of the head as the mannequins in superior form builders do it there is nothing that remains after the students in road the thing clay other than their particular stray shins and formations of the muscles that are attached to the human skeleton in ways that are indicated by the features  by the record at the summary judgment stage they did not identify anything other than just in passing a few features of the skeletal model that could conceptually be separable from the model itself the ears the nose the eyes the shape of the head and the evidence at the summary judgment status undisputed that the inclusion of the speechwriters makes it easier to build those muscles rather than students at a university having to shape a whole ear or to sculpt the whole nose it makes it easier for them to see those landmarks on the head of the skeletal model and then form the facial muscles which are tiny and attached to those parts of the body in different ways that i sockets are shallow to facilitate the placement of clay over the  have a shovel that has been cast would separating out the shaft of the shovel or the handle of the shovel simply because those have been cast in bronze does that separate them from their utilitarian function so that they could become independently copyrightable and it would not the shovel itself remains that that intrinsic utilitarian function applies to the shovel as a whole shovel snow it may not be as efficient or as effective as a steel shovel but it can still be used and has still still has an intrinsic utilitarian function of being able to move snow away from a sidewalk for example now council is also focused on star athletic at star athletic and this case does not mandate reversal for two reasons st the reason that supports or even talking about star authentic and this case is that in the interim period between their motion for reconsideration and the court's order on the motion for reconsideration start i thought it was decided however starr thought it was decided at march nd two thousand and seventeen the something is an obvious error an airplane error even if a president hadn't even been decided at the time of the district judge's decision it still ignores to show that there was an obvious error judge moore had to apply the law the start of a lot of it had already been mr nimer it did not address whether the chevrons on the chilly new uniform were useful articles it really only stood there it was undisputed cheerleading uniforms are useful articles it's only the nd part of it is there what judge moore said is that it really that if something has inherent utilitarian value that that is always a useful  i don't agree with the broad prescription that anything that has inherent utilitarian function is not happy and that's what he said right and he he that is the statement he made and he cited the record evidence for this case for the skeletal model or court my name is john posthumous appearing on behalf of balance by the university and it's with regard to the attorney's fees portion of the appeal which admittedly it's not as exciting and creative as the st part trademark portion of the case as well as the copyright portion of the case should have been considered by the court even though it was filed a day late and in this particular situation there was a motion that was filed on the due date asking for an extension of time the next day there was a in connection with that motion there was a meeting conferred that was attempted by  opposition and later that afternoon which happened to be a friday judge moore issued his st order denying that motion and then subsequently later that evening there was a nd motion that was filed with regard to accepting the attorneys fees motion out of time under six b and an additional declaration that was made in connection with that there was again a meet and conferral attempted by e mail and but that was not completed prior to the filing of the motion in the time that i have i'd like to address one specific issue and then process clearly the purpose of the meeting conferral is to determine the opposing party's position with regard to the motion at hand we would argue that the reasonable innocence that should it it that reasonable notice in conclusion should be interpreted based on the situation not necessarily a strict standard in terms of timing and allowing sufficient time for response or thank you  pages forty five dollars of that order the mannequin has an intrinsic function to merely portray the appearance of a lifelike form that falls within the statutory definition of useful article in other words the intrinsic utilitarian nature of an article can be more than merely portraying its appearance to be a useful article but here the mannequin does not even reach that level it merely portrays its appearance judge more made a specific finding that is an error of law he is applied the statute to mean exactly the opposite of what the statute says we agree with him that the minute that the manikin portrays its appearance and because of that it is not a useful article as congress has defined the term we heard from counsel that pivot point involved a case in which the court concluded that it was a utilitarian article so it's important to go back to the seven circuits decision the district court in that case ruled exactly the same way that the district court ruled in this case st it said that morrow it was a useful article and secondly that it had no protect bill features the appeal was exactly the same appeal that we have today the plaintiffs said no it is not a useful article and even if it were in has protect all features the seven circuit reversed the seven circuit did not hol that mara was utilitarian article instead it said quote we shall assume that the district court correctly ruled that mark is useful article and proceed to examine whether despite that usefulness it is amenable to copyright protection and the th circuit also commented in passing that the evidence cited by the district court could it was susceptible to more than one interpretation meaning that the district court was suspect in that regard as well but it was not necessary to investigate it because this is the nd circuit reversed in this case we submit that the court should reverse based on the inner applying the useful article doctrine but it also should reverse based on the fact that this was not a useful article because it merely portrays its appearance much of what we heard from the presentation of counsel concerned what students at defendants institution can do they can roll up muscles  they can do various things the same applies to the toy airplane that was held to be not useful article students could use that airplane to paint a round windows and wings they could use it to put lights on it to see if it's more useful to more more functional to have three red lights in the back or one blue light in front what is done with the use with the article is not is of no moment the question is whether the article itself has an intrinsic utilitarian function the toy or plane did not and likewise the manikin student one does not well it was really ask you this if you separate the more than they would typically be separated on a typical human skeleton it would still have a utilitarian function and yet the appearance would be different but like a belt might be look differently but still have a utilitarian function so why isn't the fact that to distort forms to make it not look like an a real life skeleton those are all circumstances that increase the magnitude of the copyright protection in the make copying more actionable but in any event the only utilitarian function of the mannequin is to portray the appearance of a skeleton and for that reason it is not to use article turning very briefly to the attorney's fees question in pioneer the us supreme court ruled that there was exclusive excusable neglect when the disc when the bankruptcy court itself sent out an ambiguous notice that could be taken in two different ways there is no case that has been cited by b in which a court has taken the action that that b b you request this court to take namely there is no case in which a district court concluded that a late filing was not excusable neglect and was reversed for that  there's this would be a st of its kind if the court were to rule in that regard relevant here is what the what the supreme court stated in blue john versus national resources namely the district court could have overcome the obstacles to admit the affidavits at issue but the proposition that was compelled to receive them that it was an abuse of discretion to reject them cannot be accepted likewise in this case the district court had discretion to determine that it was excusable neglect and had discretion to conclude that it was not excusable neglect there is no basis to reverse in order in other words to say that the district court was compelled to determine that there was excusable neglect for elite filing were you prejudiced by the one day delay i am not aware of any specific prejudice that's her suffered because of that one day delay ok thing just because you have any questions for the