excuse me who may it please the court here again for appellant as an odd productions this is a critical case for writers their ability to protect their original creative expression is at stake it is their life pursuit and their livelihood that is an issue this is not a typical case it is a typical because it is based on artwork character designs and treatment not a full blown screenplay it is a typical because having access disney used the same never used before dialogue the elephant mind and the same never used before title suit topia to express the same theme and it is a typical because of the number of similarities nonrandom similarities across the elements on this appeal it is established that esplanade own a valid copyright in an original work of expression that does not have access and that disney copied to some extent so the issue is how much of the writer's expression can disney appropriate without compensation or credit and we think the issue is one for the trier of fact no recent knight circuit authorities including the authorities w cited in our twenty eight say letters highlight two fundamental errors the first is that the district court determined substantial similarity on a motion to dismiss using subjective judgment to apply the object of the test without a full record and without expert testimony and second it used the wrong analysis in doing so in a concurring opinion and asked for white about judges evaluating art judge wordly emphasized the importance of expert analysis of these principles are important here even more so than the more than most cases  must be a human in your view i would think have a point past which expert testimony is not required you know if someone writes a spy thriller and what they're claiming was  infringing was you know goldilocks and the three bears if there be no need for expert testimony so it seems to me to beg the question because in order to determine whether expert testimony and more discovery and so on is required it seems to me there has to still be a threshold showing that there's enough substantial similarity to get you to that point so different in terms of expert testimony is because the works that are the basis of the claim are not targeted to a general audience they are character designs and a treatment and character designs it's not the same as comparing art these are designs for animals to have human characteristics human character traits and those that know i mean you know every form of expression for decades yes but i think the point i'm trying to make is that expertise is particularly required when you're not just comparing a photograph of one animal to another drawing or an illustration of one animal to another well they're entirely different animals for one thing well that they are but identity is not required we're only required to show substantial similarity and here we have substantially similar we believe designs and the need for expertise is that these designs are used to create characters they're not just pictures of animals and i think that that's different and heighten these illustrations create character traits and illustrate conflicts and how that is similar to how the same types of designs worked in the movie itself us an example of where expertise is necessary to understand the properties of the property that are found completed work in this case not only that we have artwork but we have a treatment which is not a full blown swim play and so in the treatment there are for example three character arts or three three plot points one is the character arc of the main character another one is the plot about bullies the reform police and another one is about a small prey animal who plots to overthrow the natural power structure of the plot relates to dialogue that all of the line that relates to the theme that relates to the title all of those relate to care for an expert could look at a treatment and say this is how motion pictures are made you take elements that are expressed in the treatment not full blown but you take these elements that are expressed here and you develop them just like you develop the designs into characters into a story into a full blown most picturesque i have a question for you because the two things that are obvious without expert testimony are the title and the one sentence about being an elephant if you want to be an elephant being an elephant or approximately or that live i want you to assume for the sake of this question that there is nothing else in common between the expressions in the treatment and the character drawings and so on and the disney movie and i know you don't agree with that i just want you to assume that what would be the result is that enough where you have a power and a half to two hour movie and for a substantial similarity it is certainly enough on the plea that the pleading  also that say the one line can be enough but i think that the bottom line here is this is a is not something that can be decided on the pleadings and let me give you no station as to the elephant mind because what the court did was held that this is really generic it reflects a common sentiment anybody can be anything and this is this is the signature line of both work so this is qualitatively important particularly to the plaintiffs work but what the court did not line is actually different from what the court perceived and an expert again can come in and talk about elements that may not be apparent to a lay person but an expert can explain them explain how they are similar and explain how important they are insubstantial of they are to the plaintiffs w so we don't think it's proper to dismiss them on a on the pleadings given the artwork given access given the copying that we know about and as a judge d access but alternatively by direct evidence of copying and here we know that the elephant lion and the title are the same and we've alleged  we think that the characters lines so copying as well in fact we've attest tracing exhibits to the complaint to the first amended complaint we think we have enough basis to conduct discovery as to direct evidence of copying do you think on doctrine of george hand i do because we're talking about characters lines not just a picture of one slot in a picture of another's loft period here we're talking about something that gets the ball up into actual always required how does the court determine when an expert is required or do you say that's left to the parties but i think gets back to what your honor said is this something for  distinguish that situation from what we have here with character designs and a treatment which the late observer has no basis for projecting how they relate them to a full blown m morning your honour's made please the court daniel petrocelli with ease we submit that the district court's dismissal of this case was indisputably correct the court had before it both works the court was able to readily compare both works and on their face methodically applying this circuit's eight factor of jett to extremes that test the core was readily able to determine that the works as to their protect elements are not substantially similar i'm going to ask you the same question i asked mr gans assuming that the only two commonalities are the title and the elephant under copyright regulation to a two point one is not protected ball and that's in addition the subject of the state court case we're talking about one line which  the record one twenty one from the plaintiff's work it's not even clear that it's dialogue it's simply expressing a belief that just one of the characters holds among his other beliefs the character hugo right but in a treatment it might become dialogue excuse me if your treatment became a film long and it could become not to be how it could become a line a spoken line but under the olson case of this put out by the circuit you need extended similarity of dialogue and that's assuming that the line is protectable and the idea that you know animal can be the biggest animal in the land the elephant or a person can be the best person they want to be is such a high level abstract concept that that would take that idea and say the plaintiff now owns that idea which is an integral to the interests of the and the purpose of a copyright law but which is the respect only concrete expression s development of characters is in fact is it not a much more opaque process than just its one line this is a two hour movie knows stansell similarity if that lock in has a carryover effect throughout the moon movie for themes or for  development of the characters well the but the court had the full movie before it in the court had the plaintiffs work the elephant line news fourteen words out of twenty thousand in the disney movie one hundred eight minute movie and it's one out of many pieces of character description aspects of the plaintiff's work so the court could tell whether a that line was protected ball and whether that line played such a dominant role in the plaintiff's work which it clearly does not that it would overwhelm all the other factors i'm this on the issue of what an expert for example could contribute to this in response to some of the questions you put to mr gans when it comes to literary works we're dealing with a literary work here and there's a well established body of law on the circuit about literary works plays  screenplays treatment's books this is such a case and we have this very specific age factor test of mood pace setting sequence of events dialogue characters themes plots because you are able to extract these objective criteria from the works and it's readily apparent to any lay person this is different from for example a computer source code case like the sega case or even music cases where experts may be helpful to assist a judge at the threshold or even a jury to understand the similarities because their music only has twelve notes in the scale each of made clear no amount of access can vary the standard for substantial similarity listed rejected the argument made by the appellants to the extent that they were suggesting that there is a lessening or a lowering of the standard for substantial similarities because there was access so what is your is it your view that if there were let's say someone involved with the movie said you know i love to that title and i love to that sentence about the elephant you know was put in quotes and the treatment i copied copyright law for bids that level of of copying of concrete specific an expression that rises to the level of substantial similarity of two works as a whole and that is an important balance that copyright law seeks to protect in the court performs a credibly important gatekeeping function in maintaining that balance because the purpose of the copyright law is not only to confer on an author a very limited monopoly over a specific expression a concrete expression but to make sure that any ideas and he concepts in bedded in those expressions are free t public in order for the court to perform this very important function that you describe why isn't it important to have an expert who doesn't necessarily follow the ordinary observer's observations but understands the development of a treatment i'm really looking to score skiing three boys music and testimony so i think some cases like the music cases as i was explaining because of the technical nature of music and the fact that there are only twelve notes each of which is not independently protectable but constitute building blocks for an original work and expert it may be more useful but not with literary works especially not in this case for this reason the plaintiff's treatment which is set forth at exhibit excerpts of record one  one forty five on the one hand it's extremely detailed he has nine pages of single spate that you did eight pages of single space concrete expression of the story of this of this movie the story of this adam mater zeke that is so detailed there's nothing in expert's going to do to change that story an expert can't just come in and take that story and develop it to something beyond what those words on the page say that tells a very detailed story it's a nine page eight page single spaced treatment on the other hand if you took if you look at the first six pages they are not a treatment of a story but they are rather simply descriptions of a character various animal characters six pages of character descriptions over the first six pages an expert can't come in and create a plot or create dialogue and that's were can't just make those things up  in other words there's no discernable plot there's no extended similarity of dialogue in there and so there's nothing an expert can do an expert deals with the matter that's before the court and helps explain to the fort what it means if the court requires that assistance in cases like i said better someone more technical even in folk photo cases that can be it wasn't the case and rent mr but there can be cases  in photographs where you require expert testimony to help a court understand camera angle you know shutter speed and in technical issues like that the pose of the angle of the pose and such but when you are dealing with two pieces of paper that that  e observable to any lay person anybody can see that these two stories are nothing alike as the court said they are dissimilar in almost every material respect and it's for this reason that this circuit has given the court eight factors that specifically apply the literary works they are in the court's province in the first instance to apply those factors and if that work is not as a whole substantially  similar across the spectrum of those factors if it doesn't go forward and to allow these cases just to go forward what do you rode the delicate balance of the copyright law seeks to effect the if you take a look at the last several pages of this of this plaintiff's work from excerpts of record one forty two to one forty five that really tells you in a nutshell what this is about there's another piece of of this story that embeds some animated portion the animated portion is not developed there's no plot there's no dialogue there's a bunch of like adolescent animal characters running around in a zoo doing raunchy things that's about the motion can get from it you know chasing the female animal whose affections they are vying for anybody can see that that has nothing to do with the movie this is the fact that there's one line of commonality the the law requires extended similarity of dialogue there's no extended similarity of dialogue even assuming that's a line and the title is not protect people and you can't put them together to make it to get over the line you need far more commonality at the protectable level of expression in order to meet the justifiably high bar to pass the subjective  test otherwise all these cases would be going to the jury well they could go to summary judgment nothing would change between now and summary judgement we would be having the same discussion was that well because all they might develop evidence of access let's just assume they had to your question judge regular princes soon they said just me admitted yeah we copied it that wouldn't change anything because there has to be substantial similarity of protective will elements we copy that title and we copy the one line an expert isn't going to come in and fill in the missing plot of the animated portion an expert can't come in and provide dialogue and answer might be able to say oh you know the writer could do this the writer could do that he could develop it this way he could develop it that way that isn't going to do anything you have to compare the actual works as they currently exist and the good news at least from our standpoint is that this work is sufficiently detailed and we are benefited by the synopsis use of them as well as this specific artwork which was not copy so we have more than ample deed detail than you might see and we know that this can never be substantially similar is it i take it it's not your position that a treatment is by nature too sketchy to support an infringement action for instance if the treatment had said well there's this little bunny who wants to become a cop and you know gives just the outlines of what turned out to be the movie even though  doesn't have the same dialogue or whatever i would assume that you would conceive that there could be an infringement you could write a treatment for is it tokyo for example that tol describe those characters you would need the dialogue i'm not suggesting that although they had dialogue that would be instructive but yes you could have a treatment that could be infringing i mean a treatment that could be infringed upon yes no i would not we're not we're not suggesting that all i'm saying that this is not such a treatment it's because this treatment is sufficiently detailed on the one hand that we know it could never be the same in an expert can't you know make stuff up and we also know that it's so lacking in other respects with respect to for example the missing plot of the whole animation part of case is different the district court analyzed the protectable element standing alone filtering out all of the independently unprotected bowl material how does it matter to us what the district court did elements even unprotected both elements is itself protectable and so you cannot filter out the unprotected bull material from that analysis the analysis of the selection arrangement a combination of elements and retinue stir and skidmore for two reasons one circuit cases highlight that it is the combination the selection and arrangement and combination of non protect elements that is protective all the analysis of it meant excuse me has to relate to the nature of the and composition of elements is could be could be said about just about anything ok here in particular you have themes such as pacifically whether anyone can be anything combined with dialogue in particular the elephant mind combined with characters both drawings and character traits that illustrate the zoo topia utopian conflict with the actually can't be an elephant conflict those are combined with story arcs the story arc of the main character the unusual story of the reformers a bully who has doesn't change his nature but he changes and the story of the small prey animal who plots to overthrow the natural structure all of that is specifically combined in the treatment with settings and all of that is combined and in the title zoo topia which although not independently copyrightable is a factor in the analysis so the selection or arrangement and combination of elements is itself original here and protectable it is at least plausible that it's similar to disney's hutapea and it is at least plausible that it is substantial to the treatment the nature the motion picture is not these elements standing alone in isolation the nation's nature of a motion picture is combining these elements into a whole even unprotect of all elements thank you coun my case just submitted just aren't you just submitted we appreciate the interesting and helpful arguments from