good morning honorable and all my name is robert hell thing i represent the appellant's funky films and when o'donnell this case involves the issue of whether to literary works ever are substantially similar  more particularly whether there is substantial similarity between the selection an arrangement of unprotected elements of the works the last time this issue came before this court   good way to determine what is protectable what substantial similarity is sufficient to meet the standard and that's found in their footnote three of their brief where they summarize the cases where this has found that there was insufficient substantial similarity and finally just read a little bit i just read the first three cases that they cite here and they and this is their to their summarizing the elements that were somewhere between the works  those cases in a case called cal first as walt disney they describe it as children with concerned parents get shrunk by scientific invention undergo a life struggle fight insurmountable danger including lawnmowers sprinklers and sleeping outside overnight next case burkett vs crighton young professional courageously investigates and exposes a criminal organization that murders healthy young terrestrial powers such as levitation and telepathy is pursued by authoritarian characters and eventually discovers means of returning home if you how do you establish  with the best of the test are just words that's true that's what i'm trying that's what i'm trying to do by presenting to you what this court has found is insufficient to parent with the types of similarities that you can find in this case which is goes way beyond what the courts and those of the court most cases found to be similar very well maybe if you talk about it here because you know obviously one of the things in your case that if i want to take a dab devil's advocate i believe also that the plot revolves around homicides and in fact that you promoted your screenplay as fargo in a funeral home isn't this distinction something that can be argued to be fatal to your claim of substantial similarity well i think that the defendants do argue that and it's true the six feet under is not a murder mystery but then the fact that there is a difference even a significant difference is i mean there's a little bit there that i'm i don't mean to do neither this murder it's part of the plot is an important part of the plot of the song far from far learn it's not found in six feet under there's no denying that that's the difference between the well i guess we're getting into the definition of the word significant again there's no there's no doubt that that was a part of the plot that was it's not something that drove the plot at least from about i can't know what it was that after about sixty percent of  one of the sons is gay where another of the sons is a normal person not like a mortician where the girlfriend has a sexual obsession where where there was a takeover attempt by the by a larger funeral home where this take over attempt is launched at the father's funeral where the leader of the takeover attempt is a domineering woman who makes a lowball offer to the to the elder son causes him who had previously not want to be involved in the funeral business at all now causes him to decide that he's going to help his younger brother who had stayed behind to help to help this father run this business all these years he's now going to help him try and save that business and all the other things that we still have in our greece that is not the common property of mankind a culture that's not something that everyone should be free to use that's not something that occurs to to people  and it's not something that people need to be free to to be able to use as a premise a family run funeral home absolutely we have no monopoly on that the fact that some father decides to split his his business in between  what percentage of protective elements are necessary is there a percentage you know you're on argue a lot harder than fifty percent that's to be percent i've done a lot of work in the clothing business and they all another place on the record said that they were not it it was applying the lower standard of similarity standard one when you were making a request for additional discovery yes you did say that ok but you're saying that it did not apply to lower standards it did apply but it didn't state it in a fight properly ok tell me where tell me what was wrong because that's there's not a case that standard for for substantially similar lower standard depends on how much access at least in no fixed lower standard there is a scale a flexible scale well if the court applied the lower standard can we take from that that the court  that the lower standard was being applied it just didn't apply it it didn't take the first step and saying well this is where we put the standard because of the amount of access  well so i think that the main trouble with the court is having used determining where to put to fix th you look at the metcalf case and see how this case compares to that if you look at these cases that are cited in the footnote that i just took the time to read and i apologize for reading to the court but it's important because this shows what insufficient metcalf's shows what is sufficient well i agree with you on that when you have these type of standards the cases are what happy for the high in a low watermarks and then i mean if you can fall precisely with a case that gives the answer then you're fine but obviously i think we're arguing here between the high and the low watermarks and so you've got a state or more similar to the cases where it is you know it is substantial similarity and they're going to say that more like the ones where there is not well and the facts i think speak for themselves although i've been trying to speak for them i guess for the last fifteen minutes total support certainly has been the law for many many years in this circuit and elsewhere throughout the united states that a trial judge is entitled to make a determination as a matter of law for if after looking at the work analyzing them in a certain way and in the ninth circuit there is a procedure the trial courts are supposed to use called the extrinsic in transit test judge connelly followed it he applied it faithfully the standard of review here and i think that we've we've we've talked about this when what is the lower standard at proof or substantial similarity when access is high and also to ninth circuit has found necessary in order to invoke the inverse the so called inverse ratio rule the interest rat screenplay to a chiropractor creative development of the script namely an actor and steven bochco the creator and director of the shar in this case there is alleged access only and for that not only are we not presented with the same pattern of generic similarities as not kathy even more important metcalf was based on a form of inverse ratio analysis and then it goes on to say here there was no such carney assumed away the issue in his foot now but by doing so  still utilize unprotected elements within it so let's get down to i think well we don't believe you're on a diet if you apply the the basic factors of the extrinsic test plot theme dialogue etc you can come to any other conclusion but that there was insufficient amount of concrete protectable expression taking the the plane is to start with the theory that the a family run funeral home is somehow unique in protectable we pointed out to the district court that there are many many sick evidence there's much other needs in the in the record in the historical record of the use of family run funeral homes in literary projects including television shows there were two of them in one nine hundred ninety that came out one in the finale brothers and the other one was called good grief they came out simultaneously and this is perhaps next year there was a movie called my girls that in a funeral home this is the best evidence that the funeral home is not a unique protectable and as a matter of fact in this very situation there was a writer who claimed in new york in a separate case with three sons that was even closer than this particular alleged parallel and in that case to the district court in new york found applying the extr the defendant's work six feet under is an introspective drama moving through a series of serious relationships between individuals sets the stage for what we believe should be the conclusion that these are not it's substantially similar we can talk about it a lot and we can write about it but as judge ferguson asked at the outset of the argument how do you and so forth if you were able to simply sad as the plaintiffs would it would have this court hold today that a series of unprotected elements can be creative expression in a literary work and i think there is some doubt about that premise because that premise began with the feist decision where the supreme court was looking at primarily factual work isolated similarities what have been known in the industry for a long time astride mantid little similarities and argue that those somehow now constitutes the spiritual similarity if you were to do that as the experts did this and have done this analysis and presented it to the lower court you would find that there was similarities between the godfather and it's a wonderful life between gone with the wind in casablanca between star wars in the wizard of oz between the front parlor and the an elderly person suffered an accident at the outset of the literary work and causing this person a great deal of pain in  l similarity so i do think your honor that you could if that were not the well off then it would be virtually impossible to write anything that didn't somehow infringe the property is not that unusual when asked let me ask you just let me ask you this yes at some point though would you concede if you get a math of these unprotected interests and they all can you know converge in one plot issues if you'd found a substantial overlap in the plot and the sequence of events in relation between the characters how they act and what they do in the story then the answer would be ye there could be substantial similarity but this would have to be making that determination based on a careful review of the extent of the two work stuff especially two hundred one protected things if they all came together in one could at some point be substantial similarity if the two hundred i'm protected her and two hundred and the other well i think what you'd have to what would it what i think the law ought to be here and it is not clear i don't believe the law is clear on applying this particular principle to a work of literary expression however if you were to assume that it did i think you would have to find apply the faced analysis and and if the court were to apply a phased analysis to this letter expression we believe as we said before that there would have to be virtual identity between the two w and here there can't be any that here we respect lisa now but that's not the case yes i heard it i'm thinking about it i am thinking about it i would say yes your honor because of the nature of spying however if the court if the court were to fin then the case ought to be sent to a jury however absent that it ought not to be and the court is entitled to and authorized to grant summary determination plaintiff let me just talk about this virtual identity standard it doesn't apply to this case the only time the virtual identity standard has ever been applied has been in situations where there has been the type of work involved allowed for a little artistic variation such as a phone book in fights but they say if you're going to get a copy protection for a phone book the other guy has to copy it virtually identical there's only so many ways you can do a phone book another another situation this court apply that that standard in the apple computer case which is cited in our briefs which involved a graphical user interface those type of technical utilitarian works that allow for very little variation there has to be virtual identity but in the apple computer case this court said that that doesn't apply to artistic works that allow for virtually infinite variation and i would just submit that that that the literary screenplay allows for such variation and you'll no e that the virtual identity standard was not applied in the metcalf case i do want to go back and dress the issue of protect ability based on a family run funeral home but even saw no setting is protectable no theme is protectable none of the things we're claiming similarities similar an act of fact identical to what they have taken they have taken that same selection arrangement of elements used in the same combination they're not random when you look at it when you look at its coun referred to a list of similarities we are claiming that there's similarity here because one character has brown hair and another character is brown here with that there's it all takes place in one thousand nine hundred eight or whatever we're playing things that are central son an older son who returns from out of town who's trying to escape from the funeral business those things aren't random similarities are not lists of things that are some water they  did you see her just go right now i was looking i was reading my notes here yes she did just now ok six feet under who's the dead father and comes back and and basically tells everyone with what everything's about in that case he came back in a fantasy sequence in the first episode ends and basically said this is the theme of th show he said you can't get away meet the older son you can't get away from your family you can't get away from the light that you were born into and this thing pops up the same thing happens to the elder son in the elder excuse me the girlfriend of the elder son tries to struggle against her particular mental illness and she can't do it the younger son's life struggles against a sexual identity he can't do it all of these things and they all try to get away from their father the father is the controlling force in this man they all try to get away from his influence and they can't do it that's the theme and that theme is there in both worlds and there's no other thing that is anywhere near as important as those  there are comic elements to it the same thing referring to the fun part of the same thing applies to six feet under  listen you wouldn't care about the younger son sexual identity you wouldn't care about so these sexual obsession or mental illness you wouldn't care about the those things depend on real ism and and both works are real but they both have elements of farce they both have the elements of con of comedy to them all right well i am going to need to have you