defendant's below expressly argued to the court that the issue of originality or protect ability or copyright ability all terms that have the same meaning for the purposes identified after the court indicated it was going to change from the jacobson test to the gates rubber obstruction patrician comparison test identified seventy seven protected elements that work is entitled to no protection in our in our brief that page fifty five we indicated that the issue of whether originality is a question of law or fact had not been squarely decided by the court i discovered yesterday in doing a little bit of validation of the citations previously submitted that i had minor pieces that collection correspondence and the court determines that the issue of whether that was sufficiently original was satisfied by testimony  executive for the for the plaintiff that they were rendered with at least some creativity we're dealing in this case with a something that's on the other extreme of a fully produced motion picture  and the sequence of events that the action the characters in the them a dialogue that are are copied not only not only are copied by nightcrawler but that they set the scene sequence occurs in the same order that the events happen in the exact same order for the exact same purpose independent of anything else in their motion picture the murder scene in scene the st thirty seconds and last thirty seconds of the following and nightcrawler murder scenes can actually be played right next to each other their pace the same the action is the same the movement of characters on the screen is the same and most importantly the consequence to the overall story is the same it's that murder scene prior seems set up to the murder scene and everything that happens in both  provide a minute in nd references to both movies yes if the court were to watch in its entirety the three unrelated obscure movies that defendants  a morally reprehensible act in holding a camera over a dying man and he's reaching out to breeding his last breath my crawler it's the exact same primary action on the part of the stringer economic benefit for that she recorded and he so that the tweak is the editing out of the license plate information but it's similar because it's still the it's the murder it's the broadcast of the murder and then it's the hunt afterward and that's the similarity between the two movies you know the hunter in the hunted switch but that doesn't copyright protection for that sort of thing there'd be twenty or thirty movies that everything else would be printing the copyright to those movie rental to your honor i would respectfully submit that is ultimately  a decision for the jury to make jacobson in the case that summary judgment on substantial similarity is only permitted when a case has reached the outer limits of copyright protection i think i think i murder witnessed by a stranger and that that killed it but it is well that's but that's not the similarity similarity is that we have a movie movies about a stringer where the  st introductory seems i'm just kind of going off of my group to page twenty two and i won't get into the details because i know you have access to the to the written materials but we walked through how the scene you're going to do the string or by increasingly violent and graphic accident of crime scenes to sell their footage to only one person and that then leads to a murder scene that i s plotted in the exact same manner where you have a stronger recording from the from the promoter moving in in the same manner recording the murders as they happen worked on for for twenty years if it's the court's work decision the sequence of the combination and sequence of elements whether generic or not and that's what we have in this case is behalf of the apple e's bull films open road downs in the b c universal good morning and may it please the court the district court below engaged in exactly the type of filtration analysis this court has not only in the worst are required in copyright infringement cases like this in which courts in other circuits around the country team only follow after it did that that required filtration analysis it correctly concluded little jury could find that nightcrawler was substantially similar any protected elements and falling in this court should affirm i would like to pick up your honor where we left off about  analogy is is about in that context what is that issue here is the scope of that protection whether the material that mr dutcher claims was infringed is legally protected will not everything in  a work that is issued a copyright registration is protectable and that's what distinguishes the vance recovery case that he's talking about that was a case where the defendant said this form letter in an agreement wasn't even subject to copyright protection because it didn't have the minimum degree of creativity require we're not arguing that our argument is that the district court correctly followed the the binding authority of this savant holmes two thousand and sixteen lamb and fisher which require the district court to do exactly what the district court did the below and that is to still to route unprotected ideas stock elements scenes of fair and try to identify the protected expression and then compare that to what the plaintiff is claiming was misappropriated that's exactly what happened here and what controlling your honor in this and i think judge hearts questions go to the heart of this it's not counsel's characterization of the the scenes or the plot that control or the experts seventy seven alleged similarities which if you look at that is nothing more than a laundry list of indiscriminate alleged similarities many of which are not even similar for example a stringer holding a video camera stringer going under crime scene tape those naturally follow from a movie about a protectionist that is a stringer and at bottom that is what this case strained in terms of trying to compare it to the murder scene in nightcrawler and the murder scene that we have been following is in broad daylight it's a bricklayer who accidentally drop some bricks onto a car that the gangsters have and then the gangster stabbed him and eric is there by happenstance the protagonist and falling he's not a payphone he's not there on purpose and he has a gun he has the ability to intervene and try to prevent what's happening he doesn't do it and as a result of that he he experiences a moral collapse because he's an engaged in an occupation that constantly causes him to compromises bal use in this moral police and from there he goes down a path of destruction along with his life davey and she ends up  getting killed and he ends up bludgeoning the the gang gangster to death with a brick at the very end shooting another one and that is very different from the murder seen the granada hills murder nightcrawler and if you if you look at the scenes you see that that's a that's a parrot i mean in the nightcrawler film you've got lou who hears it on the police scanner and goes intentionally to the scene and he starts filming he does not essentially films an aftermath he does not film the actual murders you can hear the shots from outside but you don't see them and then he goes in and essentially films them or seeing the viewfinder from the cameras is different in following it's always eric with the recording point of view from the camera and you don't have any of that cinematography choice made straits this shootout that combination more deaths knowing him to get more lucrative footage and in the end results in the death of his partner which he also orchestrates so he's profiting from  this and and sending as a result of the scene in eric it is just the opposite it was unwanted he didn't want to be there he was there he filmed the scene and from that flow a series of consequences that  i haven't really discussed that yes but i do have a question on that the access you do make an alternative you did make an alternative argument about summary judgment on access is that right  are in dispute here in denying your motion and i wondered how you think we should address that how does that play into the issue and sure and thank you your honor st of all i would say that there is no need to reach the access issue we just certainly raised it as an alternative grounds for firm and we believe it is equally strong grounds as to affirm and so on substantial similarity but the district court's summary judgment below that that's been appealed from del sol it was substantial similarity did not deal with access so we simply preserved the issue it's apparent on the record so it's it is preserved in the court can affirm on that basis but it does not need to reach that issue which i think in the case here where you have a judge a district judge that was well within the lines in terms of separating ideas and spock elements that flow from those ideas to protect his expression that it is consistent with all of the precedent of this this circuit the line that he draw it is a question for the court if it wasn't a question for the court you'd be throwing unprotected material in protected elements to the jury and say you sort it out here's the filtration analysis that is not the law certainly not the law on the th circuit court plays an important gatekeeping role on summary judgment to ferret out the unprotected material which in this case is all the the stock elements that counsel restarted that flow directly from the fact that these two protectionists are engaged in the occupation as a stringer and once you filter that out and you look at the protected expression which in this case we we agree that  the brick seen the murder scene following that is protected expression that's particularly sufficiently particular and concrete to be protected expression but there's nothing like that in my collar it is not substantially similar in the district court correctly concluded that it was not and so there's this competing policy interest in the copyright act between the interest of the author in controlling exploiting their creative work but there's also an interest in the free flow of information and ideas that serve as the creative wellspring for other artists so that they can they can prieta works without fear of facing an meritorious infringement claim that is based on a protected material and we submit that the district court got it right it it correctly analyzed the factors that  articulated in all the cases including the jacobsen case and reached the correct conclusion that the level of generality that mr dutcher was claiming protection for was too high to admission that the defendants believe that there is a gate keeping role in determining whether or not something that's a protected element or not kind of goes to the heart of the problems of the district court order and might  e spice decision in light of this court's enterprise management versus work decision the elements that we've talked about in the sequence of events they occur in the same order in  both works for the for the same purpose and so we would that's the point that i would make on that the other the other problem that with the defendants argument is that