record below contained evidence of direct copy for the design basics copyrighted home plans found in the design files for the defendants remarkably similar home plans could i maybe just tweak what you just said it seems to me that record does show that for those four there was access whether access then shows copying is another question obviously you've got designer the drafter indicated that he used that mark to help design basic plans in order to create the defendant's plan and issue we think that constitutes an admission of direct copying i'm going to still be a little picky about this it seems to me if i were you know writing a a romance novel or something you know i could take somebody else's novel and write notes to myself about how i want my story to be different and the question in the end is still whether there's that substantial similarity those notes could be evidence of it but you'd still need to look at the at the layout yourself maybe you know like i hate the fact that this is a two story house i'm going to do mine is a one story or you know something you could say a lot of things in the end we just have to look at the plans and here i want to ask you whether you think the question of substantial similarity which for the four you're talking about i think is very important is one of fact or law except for the judge or the jury i believe you're out of that is for the jury and  is that's where the district court here below is the district court took that decision upon himself and substituted his own judgment for what should've been a question for the jury guided by the evidence the design basics put on in this case  including his expert report ok i thought you were going to say that so my next question is is this this is where i really run into a wall some similarity is inevitable because of things like santa fair and the like too much similarity is impermissible because of the copyright laws so how in your view do you instruct the jury on that vital question you know when does it cross the line from ok to too much in our view the the proper way to do that in this case would have been to allow our expert witness to address them you know like if if this similarity is just these are both houses with one master bedroom and three other bedrooms surely that is not copyrightable there are a one billion houses like that out there and it's just there's no regionality master bedroom and so you have to be able to tell the jury when they're sitting there is and is probably all three of us have been doing propose in that bit but i think your honor's question isn't just potter stewart they know when they see it i mean that's very un satisfactory to me no i think there has to be there has to be evidence and certainly add at the summary judgment  what to do with that evidence that's where i'm trying to get you to focus what the similarities have to have to show is that it's that it's very unlikely that the that for a particular plant or for particular series of plans that the defendants would have independently come up with a plan that shares as many similarities wealth across standard features as well as non essential nonstandard aesthetic features and that's what our expert witness lived here the analysis you reference his lexington holmes he does mention that his opinion there sooner stance really my question was did he applied to lexington home state it looks like he's disagreeing with you i believe his analysis does apply that lexington home standard even though the standard even though he does disagree with it he mentions that in his opinion there superstitious stanch will similarity between these plans and in his conclusion he mentions he identifies things like an entrance with a dining room to the left and a parlor to the right and i could i could do readings from his report but i look at it and i see kind of marketing patter for home buyers and legal conclusions can you point us to analysis in his affidavit that would make it something beyond i know what when i see one section six of the report which has the overlays on it which is the direct comparison the end it stated overlays and explains exactly what he's doing here with the car covered covered overlays and he does lay them out also side by side and if i can  in the in the bounded pens and so if we look at this in kind of walk through this of quite a number of things which i'd i wouldn't say that any of them are unique but that's not required for copyright protection so is your approach the house in in number eleven looking at the massing of the house you see a certain a certain set back on the right hand side it as we we look at it again you might see that in a lot of a lot of hands but it affects what you see when you when you when you approach the home when you walk through the from the the front door now of course you've got a you know a study on one side and a dining room on so on that has had nothing particularly unusual about that but it is a design choice here as you walk through the four year we come to the st not unique but unusual and non essential feature which is this this diagonal set of doors leading into the study i'm here now again this isn't set of state have set of stairs that's going down behind the dining room which allows for a path of travel to get up the stairs as you as you come in from the other side of the house again this is not the only house it's probably not designed basics only house that has plan but it's a it's a non essential design choice that's in that in here as you go up the stairs there is what what what mr meek nicholas characterizes as as a nonstandard and  again not required not essential not necessarily unique the right in the dining room if you go as you go into the dining room there's where we have trouble but so that uniqueness is not required it's the overall and i guess what i would say is all of these things some of them are functionally suggested some some of them are purely aesthetic considerations but we're becomes evidence of copying evidence of substantial similarity is the more of these features that we can lay out that are in question planned it's a question of what's protectable that's the that's the essence of the likes into the homes analysis the takes into account the vast number of standard home design and that and as i read mick nicholas he's disclaiming any protected ever any protection for ornamental details for kind of the appearance from the from the street rooflines dimensions that he's relying solely on this arrangement protection for them on an individual basis that i chose you know this particular design for a little or i chose this but so are we putting all of those are we left and is a jury left with anything other than i know it i see it and to experts try to charm the jury with that cannot in a way it is a jury that cannot be given meaningful guidance by the district court i think the question ultimately does need to be left to the jury i think there's only limited guidance that the district court can give i think evidence like the experts and here we have one expert panel in lexington there is an expert on the defendant side who can who can provide the other point i wanted to raise about what that what mr m nicholas is report provides and i think this helps to guide the jury in figuring out you know whether this there's obviously going to be similarities and differences between all these all of these plans and some of the question i think for the for the jury and in the court is what do those differences mean are those significant differences from an architectural perspective other significant similarities and i think mr mcnicholas is report lays out the process of design variations as are used in that in the housing industry and explains what differences would be expected when somebody takes a plan and makes slight modifications which in that case occurred to me when i just interrupt you and say i mean i was thinking about that because obviously designed basics has some two thousand seven hundred that was the number that we cited in lexington homes a huge number of home designs and i assume that you think each one of those i somebody else gets lazy come i think in that case your honor we were dealing with a case of in unauthorized derivative you can make changes but it's the it's the copyright holders right to control who allows who is allowed to make those changes and i don't think it can be the case that somebody can take one of design basics plans and just make you know a certain number of very small changes to him saying it's get suspect to the question what's a significant enough change to allow somebody theel that they're clear from  copyright point of view maybe they have to file a declaratory judgment action every time they make a change to a plan just to make sure it's a big enough change to get it outside of the copying realm i mean these are the design basics plans are widely available i don't think access design basic believes that it's those plans are being stolen with with great frequency and so on that issue and some of the issues addressed in your brief mr judge could you tell us what the relative proportion is revenues for design basics between please the court i want to start with the record evidence in that the point where design basics council walks the court through the signature homes linden or the design then versus signature homes and just know that in the record we have unrefuted evidence of the independent creation of the original plan so i thought it was interesting that when showing the ft parks that your honor pointed out are needed which is both access and substantial similarity in trying to provide evidence of substantial similarity council went right to a plan that we have very specific  refuted story an explanation of when it was created in fact was and i take your point that certainly even if you have access and similarity if somebody can come up with you know an ironclad story of independent creation the copyright laws are not like the patent laws copyright laws but you independently create maybe you know on the top of mt everest for the whole relevant time and you sketched out the plans you know that's fine and i wonder if you could answer the same question i asked mr judge though are we looking at this substantial similarity element which is very frequently going to be in litigation and is for at least some of the plans here that it is that something that is the jury's responsibility to decide and if so how do you instruct the jury well one thing we would say for certain is we don't think that the expert should be instructing the jury on the law and i think the hamiltons point was well taken and what was the information on which the mr mcnicholas was relying in coming up with his legal conclusions had this case gone to trial i was going to rely on lexington holmes as the statement of the law n just like if we're talking about factual compilations and so but let me let me amend that just a little bit in this domain is a critical part of what judge science just said because no one is saying that if you wanted to build a twenty million dollars house and have it individually designed by the finest architects in the united states that that wouldn't be just as subject to strong copyright protection is any other form of art that falls under the used in developments to create very desirable affordable housing for people there are only so many ways you're going to tweak it they're going to be so many bedrooms or so many floors and i think that was what we were getting at in lexington saying for this and he would say there are countless ways to arrange three bedrooms into bathrooms on separate floor so would the jury be entitled to think i'm looking back at this just for the sake of discussion london and ridgemont  and it appears in the nd floor that the master bedroom in the linden is thirteen feet by fifteen feet and in the ridgemont it's thirteen feet four inches by sixteen feet eight change in this house your honor i would feel like i was hat i have a hard row to hoe in front of a jury oh the soul changes the dimensions and size of that bedroom but that's not what we have here what we have here is a court that went through that said not only are rooms different sizes but they're different dimensions the outside features are different in the one that where the design makes basics is claiming evidence of actual copying which they don't have but where they're claiming that the bathroom is on different sides of the hole depending on the same side of the master bath and signature plan and it's across the whole in design basics plan and when it comes to putting a that makes sense so with with respect to really framing the issue in terms of summary judgment here as as judge would pointed out at the beginning access which is all they've done with the four plants to show access and that's only four of eleven plants and we have other backgrounds for summary judgment on the others but with respect to access that's not enough then the allegedly or the plaintiff has to show that the allegedly infringing work is indeed a copy of her original pointing to similarities between the two works and you know the it goes on and looks into to say we have never endorsed the idea that a high degree of access justifies a lower standard of proof they still have the burden being in the living room and having the kitchen behind it with the breakfast office these are the parts that we don't protect and more importantly and that's where i was headed before let's frame this from a summary judgment still from a summary judgment standpoint but evidence that that was relied on to establish that stansell similarity is the mic nicholas report the mic nicholas for port was rejected by the district court in there were reply brief design not take lightly the manipulation thank you went through showed me more differences than it did similarities so it isn't even a of rejection of the testimony it's saying i've looked at your testimony i've looked at your evidence and it doesn't show what you say it show us it doesn't provide be in florence that you want so the court both challenge the manipulation and that methodology and looked at the evidence and said all it shows me his differences but what the put the question gets back to the was was the judge taking too much of the burden on himself you know i'm certain that that was the judges honest view about you know what what these manipulate some of its just flipping around mere images and and the like which seems to me feed within the realm of the legitimate so but could a jury look at these at least some of these plans maybe not all of them and think that they are derivative works of the copyrighted plans who that they are just flat out copy you know why do you have to have you know the kitchen on one side in the dining room on the other side you know maybe some people like that the kitchen right away since everybody always stays in the kitchen any way you know so just why are those choices so inevitable i think what we're looking for for copyright ability are choices that are not the of showing substantial similarities and you know what protectable elements in protectable elements and what happened in this case is that we provided evidence of the differences following the was a report of an expert that's based on a st circuit test that shuns the lexington home standard set out by the score and that manipulates the drawings in order to try to establish similarities that aren't there so the combination of that and our testimony listing differences the judge's analysis left listing differences of this time you did not have a countervailing expert that you had your client very correct although i would suggest that he was acting as if he was giving opinion testimony he was he was giving opinion testimony based on his many years in the business his experience in this area he wasn't a paid expert he was someone with actual familiarity with obvious plans developed and he was disclosed under as a lay expert pursuant to the to the case management plan the rules but again i believe that based on the failure of the plaintiff to carry the burden of showing substantially similar there is effort to hew harness this test that isn't the tags and to provide an expert report that does nothing more than say well of course they're clearly substantially similar and  issuing conclusions backfired on them and based on this record it goes right back to what was said in lexington home we conclude that no reasonable jury could finally lexington's accuse plans or in this case signatures accused  cutting you off where you're going anyway but i'm trying to imagine a trial of such claims and i'm wondering if a defendant in this case in such a case would come forward with five other overlays of the challenge plan with other plans build from around the country if you want to take the shawnee example that show the central cases but i have very little doubt that it would be possible to do that is that where we would be headed as that is where we would be headed we'd be talking about look at all these different home sites and all these different websites we'd be putting our client are representative of several of the defendants on the stand just say yes a lot of times people come to me and say you know what i really like is that play in that they're building in the such and such subdivision and they said well we can't build exactly that same floor plan but tell us what you like about it we live in a penn trust world people come in with plane tell me what you like about it tell me what you don't like about it and i do want to clarify one thing  planes we aren't even alleged to have copied home planes these are layouts there are lines drawn it's a draftsman has to put a lot of effort into drawing up a home plan or stamp really a lot of in the you mean like the real out on the plumber i and i've had cases where somebody walked into a place and as you cues to taking the permit the plans that were put together with the permit and taking it out and removing the digital media in other cases  that's the kind of thing that is protectable because those are actual plans and that is this is a drop the course that is drawing inspiration is deciding i'm not going to build that plane and it's making substantial changes and i wanted to go through all of those the outdoor gables the juxtaposition of the garage the moving of the bathroom but it's on the record so as my time runs out i would ask you to affirm  stand behind the lexington homes opinion you've got two more peals coming up here people are watching that but if not i would turn to the other issues where we have evidence of independent creation and we have a lack of involvement by accurate and what what they defended say he is accurate about there being only so many ways and so many of this dictated by functionality then it should be possible for defendants in this case and others using experts as they did in lexington or otherwise to come and show other plans that are just as close to design basics plans as that as signatures plans are that's evidence that would rebut mr mcnichols make mr make nicholas his opinion that it's absolutely impossible that across this many plans of across this many features this this much specific layout that is absolutely impossible for copy thank you very much thanks to both counsel to take the