access and substantial similarity the district court erred here on both fronts and i want to start with the air on access with respect to access the district courts error was failing to acknowledge and then had given his treatment to mr roundtree and mr mccann who are also insiders in hollywood one of the most famous actors in america and his agent and it's alleged in paragraph thirty four and thirty six that round three and m who had possession of the treatment had direct contact in association with the defendant and based on that direct contact and direct association defendants had access to areas that allege their direct relationship paragraph thirty four and thirty six on page one eleven of the record year on now these allegations and thirty four and thirty six are the access allegations in the complaint and they were ignored by the district court they're also ignored in the moving papers paragraph thirty four was identified though to the district court in opposition as being an access allegation and they are the quintessential those are the money allegations when it comes to access the other stuff that the district court addressed were really just a series of straw men that had nothing to do with access and were obviously very easily knock knock down counts of paragraph thirty four which i trust by that we've all read before this is this is a key question i agree with you how do we get past and where this is says you know i can show there was access in the supreme court now requires a little bit more than that usually to get past or it will be six how do we do that here your honor this satisfies the copyright x substantive requirement that there be a reasonable possibility and that's no different at all i mean it all tuam please elevation of the tide on pleading allegations for all other allegations are already substantive copyright law there has to be a reasonably possible set up to no advance that can establish access and when you say that an insider has given it to another insider and that insider is directly associated with and in contact with the defendant that is a reasonable possibility where is that allegation i agree that allegation that your client gave the paperwork to our gave the materials to mr roundtree that's clear no doubt about that it's that next jump has it get to mr daniels and his crew where is that in the complaint it's between thirty four and thirty six because thirty is direct contact an association between regularly not i think the point is whether that is merely a conclusory allegation that's not backed up by any factual allegations when i'm looking at factual allegations in the complaint relating to access there's an allegation that it was given to nicole lee who didn't give it to anybody else and then also it was faxed to richard roundtree and his agent but it doesn't say who they give it to if anyone at all so i think as i understand which owns getting at is the factual allegation that back up the conclusory claim that there was access in this case sure it's not alleged that it was given on this day  this time to the person because that's what discovery is for but when you look at paragraph thirty six it says more than just that the people who have it have contact with the defendants it says that on information and belief and based on the above allegations including paragraph thirty four defendants therefore had reasonable access to it those aren't just in canton phrases in canted phrases would just be i wrote a script i'm just some guy i left it on a bench in beverly hills the defendants live in beverly hills maybe they found it and that would be sort of the bare possibility type set of facts that doesn't make out a proper claim this is why the this court's ellie pretext case is so important because there although it's a wide dissemination access case there this court reversed the district court and this court said look when the plaintiff is in a smaller network it was a garment manufacturer in l a and it disseminated its garments out in the alley area and the defendants in l a the court said look you've got this transactional set of facts that frames this in and that's a lot like this case because you're dealing with people on the inside you're not dealing with these random strangers to scripts who may have left them lying somewhere that's why print text is very very important coupled with heart attacks because art attacks got before a jury on a chain of events set of facts that's far different to this i mean there's far less meat on the bone in art attacks and that bought before a jury in terms of the chain of access and so that's why here when you look at these allegations that does satisfying it ball twamley plausibility standard it satisfies copyright long terms of reasonable access and what's required and it's for that reason your honors that access is played and there's no need this case doesn't even get it need to get into the inverse ratio rule because access is played now of course if access isn't played the question then becomes peyser striking similarity in this gets to the second error fundamentally because this is a case where there is substantial similarity and they're striking similarity when you look at metcalf and this debts are the same type of error the substantial similarity analysis undergirds the district court's decision the same error that under the access decision and that is the district court didn't pay attention to the facts the district court ignores in its order a whole host of similarities on plot and character it ignores outright some characters other characters it focuses on only the most general level trade and it does this on all the objective criteria within the substantial similarity extends it text and by doing that and focusing on only the most general abstract level similarities it became a fait accompli that it would be a series of findings of senna fair and generic and standard stock but if you  widen the lens out cogon isn't of the fact that this is a literary work this isn't sort of a musical composition work where there is potentially very limited range of expression this under mattel is a literary work where there's a gazillion ways to make a movie a television television show about a black hip hop billionaire and so widening that lens and looking at all the similarities becomes very very important because you start seeing plot and character similarities that are significant they're not just dispersed random elements there's an absolute pattern to the similarity and here you look at the plot the district court said the plots just about are you know a rich guy with three kids  substantial point information in the treatment that then overlaps with the episodic television show it's about a man where we pick up his life story as he's made it he's a billionaire running a media music media empire with three kids all of whom have unique relational issues and traits he's the protagonist he himself as a character is developed in terms of you can it's based on the relationship with the kids he approves of the one who's going to try to run the business disapproves of the ones who are doing other things such as arts you have an antagonist and this is a massively important character that the district court just ignored the antagonist in the treatment is this sort of a white antagonist who's got this sort of a tally and mafioso type thing going and in the defendant's work we have believed already and if your honour's of watch the television show he sort of just archetype the image from hollywood about the italian gangster looking guy and this this is not just a competitive hatred there's relational matter that's developed in the in the treatment between the two they're not just competitors like steve jobs and bill gates and they're out to you know dominate the world there's a personal hatred between them and this disappears in both works and then you have this character whose life we've picked up who we explore that maybe he's not all that in our character maybe there's a dark side to him and in the treatment it's alluded to because his family member who he's literally had no contact with for twenty years again an identical fact to the defendant's work emerges from from prison on drug charges and comes with the capacity to blackmail the protagonist because he maybe isn't such a good guy and this is explored through flashbacks and then you add an an additional layer in terms of the object elements and substantial similarity we add in that this isn't just dynasty can't soap opera and the district court said lambert it's just a false sense of fair if you're going to make a you know a dynasty type show this is what happens but there's no foundation or fa is inherently a factual question even more so when you're talking about a literary work where the derivative work is in a different medium this is very substantial and we need factual development and ultimately  contest july's the quantitative and qualitative significance of all these similarities if you don't sitting here today there is no one unknown there just are once you've been through discovery and you had experts you no longer have known unknowns you all may agree or disagree with the experts obviously in terms of whether what they gave was valuable but at least we have framed out the matter and the court then if it is to apply a summary judgment standard can say ok i have expert testimony i know the objective factors we have compiled all the similarities and i have someone who has qualitatively and quantitatively is an expert required in a case like this with the court can watch the empire show the courts got the treatment and the court can do an objective comparison of the ways in which they are similar and the ways in which they are different in other words the district court issued a reasoned decision in this case and pointed out the various ways in which the treatment differs or to show differs from the treatment do you take issue with with amy of the differences described by the district court no not at all but the district more in all of the what the expert really do  aiding the analysis and the extra in psych test of the ways in which they're different the expert would focus on the similarities in expression and that's what the district court here ignore the district court only focused on the dissimilarities and you need an expert to quantify what is the significance of the dissimilarities a district judge made the williams case makes clear that there is no presumption in the wall that judges possess unique fluency in the underlying artwork of music there's no reason to believe they full fluency about what santa fair what's generic what isn't in terms of in terms of this subject matter either the same is true in the patent realm everyone recognizes that you need experts to explain underlying technologies we'll hear the district  didn't issue a reasoned decision we submit that you can't issue a reasoned decision if you don't actually address the similarities in terms of plot characters and the actual sequence of events that does exist all of which and this is where an expert helps an expert can explain that in this art form at this level of specificity there is not prior art and there isn't the expectation that you would find this grouping of similarities in a literary work when it's translated to another medium and that is something that a judge isn't imbued with just the knowledge of knowing by virtue of being a judge sitting at district court this is why it's very important to develop a factual record so l was leave to him and requested in this case it was and it was denied ok so if you were given to amend the complaint to go back to the reasonable access pro there is there are more similarities in the way even batted about in the briefs more can be illuminated about how this is a novel piece of creation that exists without prior art to sort of tether the balance of it the reality here is that factual record has to be developed in order for us to know the significance of all of these factors and that's why if this court's metcalf case i mean this case really is like shaw where there's just protected expression there's similarity in a lot of the factors if you go to a jury or the star show copying so at some point you have to show that there was actual copying absolutely but that's why discovery so important if you played this chain between this network of people inside that gives rise to a reasonable possibility but you can't say as a matter of l inconceivable that there could have been that type of copying and access that's why discovery is needed and if in discovery it's borne out that this thing literally just evolved organically they have the affirmative defense of independent creation that can be teed  is very very important here your honor because even if you don't see this is shar star wars and the star wars case i urge this court to go read it didn't get enough attention or briefings but it's a court decision by this court that demanded a case go to trial comparing star wars to battle a twentieth century fox case the thirteen similarities there are more general than similarities here but if you don't accept that expression then we submit you have to look at this case is being comparable to map out where there is a concrete pattern as opposed to randomness and that judge goes to where experts relevant also the conclusion that these similarities are just disparate random events that could happen at any time is something that may or may not be true depending upon what an expert says involving literary works were choir's expert testimony that would impose a sea change in the law of the circuit and in the law across the country i'm doing decades of law getting back before christianson which was nine hundred forty five and in fact  said what the complaint says is that plaintiffs are confident to be able to show alleged creators executive producers and or individuals associated with empire had direct or indirect or association with one or more persons who had a copy of the unique and self described groundbreaking treatment of king solomon and then in paragraph thirty six plaintiff alleged th defendants can had reasonable access which is a conclusory statement under twelve million it ball we need facts on this on these bare bones of access and there are no fact pretty well written complaint for by someone who was pro s they could only speculate as to how defending and access to his work and nothing prevented the plaintiff from doing the reasonable investigation necessary to articulate some facts he wouldn't these facts in particular be would be something that would be known to the defendant bit not necessarily known to the plaintiff at this stage potentially at some point however mr the plaintiff does not even allege whether mr roundtree or mr mr tolly that the that the chain of access ends with mr tolkien as to him but as to the other two we don't know we don't know he did not allege he stated that he could only speculate and then on appeal he said it could only be can be if inferred that the a list black television community is small and therefore it must have gotten there this is you know this is the bare possibility of access that jason record the jason the fonda case is rejected it's also the if you look at some of the district court cases we cited including the bloom house case and met a film which this course this court has cited several times this is putting it into a place where someone might have come in alleged on access but ultimately it doesn't matter because this court can and should and does routinely me assess substantial similarity on of protectable expression for literary work because if you compare the works and compare that expression in the works they are different but see that the problem i'm having with that argument too is that the work was allegedly copied is a treatment which necessarily is not going to be fleshed out into season one have a television show right that yet there are a the if you gave this treatment to one hundred different writers you would get a hundred different shows and none of them would be empire but they cannot all be derivative works they get all the derivative treatment right which is what the treatment king solomon is a harvard graduate there is no indication that he was ever a that he was ever an artist himself he's married to his to his childhood sweetheart who seems not to have any thing any any involvement in the business and he has this mafia connection with his with his rival and then he has these relationships with these three children all of those things are different in empire the only thing they share that is their race and their ownership your focus on all the differences and you should be right the counsel for us right can get up and focus on all the similarities yes except that the similarities are not expression the similarities we do not have a character like for example with the characters we do not have a character like superman with plot we don't have the same plot here there's very little plot in the treatment at all but what isn't in the in the part in the treatment is lucius is lucius is terminal disease we don't have cookie being a an informant we don't have cookies relationship with her children that's not the same we don't have we don't have anything about the coming out story and in fact you know th be opinion and and tried or the treatment and tried to sell it there'd be no question that that could be copyright infringement but we're not there and the and the thinner or the protection  on a work the the closer you know the more identical the copying needs to be and here when you break it down into its component elements as we're required to do and as was done  recently affirmed here you had a very similar thing you had i believe it was a treatment it may have been a single screenplay against a season of a of a television show you had very you had the same kind of discussion of similarities in you know a former football players and what they do in their off seasons and and certain characters that could be kind of compared to each other that's what we have here affirmatively says you can do this analytical dissection on a twelve b six motion and as and and in fact discusses that in a twelve b six motion that for literary works i plot that exists in the treatment jake getting out of prison which itself is just an idea and then going to jenny's birthday party and the hush money for the dark secret and then finding is illegitimate daughter that does not happ it doesn't happen in empire and to the extent we want to say well in one episode there's an illegitimate daughter and in another episode too many gets out of prison and in another episode cookie demands half of the company she founded that's the random list of similarities that they have even met half says you can't rely on metcalf focused on a common pattern of similarities of the commons and metcalf also has an admittedly high degree access we don't have that here even under the under the plaintiff's best argument there is a possibility of access they've not articulated the high degree of access that was of it that was found in mcafee and so they're so met have in subsequent cases have distinguished metcalf on precisely that ground among others swirsky and williams which about all the different ways that courts have assessed assessed similarity in musical works and in that context forces works he says first well literary works are more easily broken down into a small number of discrete elements and but that for that musical work under that kind of context they needed an expert williams picks up on law and says that it's unreasonable to expect a judge to be neither case says you can't dismiss and in french might claim involving music music being its own language makes it harder but one could find for example that philip glass's form in a thirty three seconds which is a silent piece of music doesn't infringe beethoven's ninth and here we're almost there we have an idea for a television show the last case i want to raise as i'm running out of time is rice versus fox broadcasting and i think because in rice which swirsky cites in rice the court said that the point of actually had offered an expert and the expert was rejected by the court because the similarities like the similarities here were  were based on stock characters and sums of fare in other words the expert the expert performed a comparison then the district court rejected that comparison as arm helpful  similarity and in doing that according to it by all the courts of court apologize its judgment and experience in assessing those similarities we have here on a treatment a thin protection on a set of idea those ideas are not expressed in the same to the extent those ideas are protectable and for example the idea of a daughter who happens to wants to be a model and actress is not the idea of a son who went to business school is not protect there's not enough there if you look at him those are not substantially similar as to to what you see in empire i see i'm out of time if you have any other questions otherwise once you know i'll give you a couple of here on ars the substantive law copyright on access in this court circuit has routinely said circumstantial evidence suffices it ball has not created such a watershed event in copyright law that suddenly circumstantial evidence is not enough and so here what's pled is enough on access even if it's circumstantial on that last step to justify getting into discovery the second point it's important we're not saying that and it's not our argument at all that this court or a court can never adjudicate these questions or rule twelve rent master i believe is the outer limit of when a court should say we are going to allow this to happen it will twelve and one of the very important things about the run master cases they did the extremes that test on every one of the objective factors for photography the majority at least said their hundred percent dissimilar and it's cited wanted to be because it was dealing with statutory non copyright material a human pose which obviously you're familiar with just ward off from the yoga case third point is council says the only similarity here is ideas it's just ideas ideas ideas but it's not there's more than just ideas it's not the idea of a black billionaire hip hop mogul it is the tangible expression about that character and his the nature of his relationship with his kids defines him the kids do one of the kids to find him to go to the antagonist defines him and it defines the kid and what's very important is you have another antagonist of the district court said not even a foil as in as in their work and that's the criminal drug relative who is decidedly a for oil that comes back to set up this dramatic tension and it's someone who's a family member where there's no love because they're willing to blackmail the protagonist of that is expression and the court has never held in the extreme to test and this is why shaw's important you don't have to have a character that the character standing alone would merit the quantum of copyright ability to constitute expression it's the character as one of the factors and that's why when you look at shaw the equalizer it was just a well dressed guy who wore a tuxedo who wanted to equalize the odds and the court said that's enough this is why again i urge the court to please go to the star wars case in the battle for galactica cas because there it talked about a mysterious leader of the democratic forces who had some magical powers i mean it sounds like a wizard but this court said it was delineated enough with a bunch of other similarities to look like it belonged to the ford jury and that's why it's so important to make sure that when you have this number of similarities stacked on top of one another you don't just say as a matter of law it's random and it's not the pattern within that tough unless of course as an equal and further we would submit how right thank you very much