not right for summary judgment the evidence wasn't clear the particular issue of fact here has a copyright protection and so therefore there is a presumption that it is copyright material the district court took no evidence on to that fact and as such by not allowing any testimony or evidence whatsoever in that the second issue with regards to that is that it failed to take into account the seminal ruling in six of the lowery which just a school author several years ago in there it's very clear that i did it's one of those issues where it's just a school city gave us thin protection for copyrighted material now there's a presumption here that it's copyrighted material because there's a copyright that has been issued and so the at the very least the district court should have taken evidence with regards to that issue before granting summary judgment and this is an issue where we're talking about the depiction of live animals now we know based on photography larry that there is protection for that just as good a role that it was then protection at the time but nevertheless it was protection yet the district court didn't give us the opportunity to bring forth the evidence that showed the virtual copying of the work by my client versus what was copied by we have to as just a school wrote vigorously police the line between idea and expression and what is meant by that narrow protection i would argue that in today's world that we have three d printers laser printers and things like that we have to  be more vigilant with regards to that narrow protection perhaps maybe even increase it slightly in order to give the lower courts the understanding of what should be protected in a copyright granted  photographing of something in nature cannot be copyrighted in of itself but here we have a specific pose we have specific work done and the work of the appellee produced was simply a enlarge of those areas help me understand what difference it makes if you have trainers pose dolphins as opposed to if in fact what they're posing also happens in nature well that's an interesting question a lot of because the if they're posing them how do we know it can happen in dates or in this particular instance the evidence was allowed the district court to ascertain that we think it should be this pose will be shown not to occur naturally if it doesn't occur naturally it's subject to the copyright protection and as such should have been intercepted in this particular case and summary judgment should not have been granted that is a question that at the very least the jury should have got a chance to decide for their swimming in the ocean how could you demonstrate that this particular pose is not natural to expert testimony and through the testimony of the people who actually did the work because they can tell they can testify as to what they did to put these particular all animals in the positions they were in so the burden then would fall to the opposing party to say no it does appear in nature and he would have to bring in his experts who would say that but it would be an issue for a jury to decide it's a factual question not one right for summary judgment which as this panel well knows is disfavored in copyright cases what do we see in the images that the district court was looking at that clearly does not happen in nature the idea of the dolphin rising straight up this is this is not something that we're swimming in the ocean yes isn't that her curve from time to time except that we have not just the one dolphin but the other dolphin we have opposed image we have an image that was created by the artist isn't subject to copyright protection and of course that's not what this district has held for years so the protectable elements here are in your view the dolphins crossing the posing of the dolphins crossing as your own among other things as well but fundamental so even though that could potentially happen in a jury saying it's not ever possible for that to happen in nature one never knows it was ever possible to happen in nature but the only way the district court could ascertain that nature and so i'm just trying to figure out why you think because in city of the actual line is an artist may however protect the original expression he or she contributes to these ideas an artist may vary the pose attitude gesture muscle structure facial expression coat or texture of an animal and orders may vary that the background the lighting the perspective such variations of original as we maintain they are here earn copyright protection and the copyright already existed on this particular piece of art in seventy nine there was already a copyright issued so there's a presumption that this particular piece of art was for copyright protected all and for the district court not to allow evidence into there with regards to that defeats the whole purpose of issuing the copyright you reach the taba to suggest that any one of those variations can create protectable material i believe it does your honor there's no  several of them combining in a particular image well i think that would be something that i would like this court to perhaps expand on the on the quote narrow protection that you currently have because there's nothing that says that any one of these is insufficient it will give us a list but it doesn't say only you have to have two three four of these so tom is very clear that anything there as long as the artist is creating this idea and expression is copyright protected and it's very clear it's a tavern again judge who wrote we do not hold that realistic depictions of live animals cannot be protected by copyright in fact we have held the contr has had a long history of protecting artists work and just think about what it would mean if this wasn't protectable this would mean that literally any artist's work or expression would not be protected by that artist and anyone could copy it and especially now where we have so many different ways of copying things artists would never be able to gain anything from their work so our position is clear that the evidence necessary for the district court to render a proper decision wasn't for them i mean if we grant you copyright over the often scraw scene which seems to be very close to something that could happen in nature are we constraining the purpose of the copyright act to allow for the free artistic expression i believe you have to make the copyright act stand for what it was meant to stand for and that was to give the artist protection and you now say that well even though the evidence will be that or the evidence was this was opposed position that this was done by individuals to say that while it may be it happened in nature defeats what a copyright is for and as such that would make the artist unable to profit for lack of better word seems to defeat the whole purpose of the rule so with that in mind our request would be twofold one that this case be remanded back to the district actual trial on the matter and if i may i would like to also suggest that this panel take a look at what we mean or what you mean by the narrow or thin protection and perhaps now in today's society with all of the available technologies expand that so it's a little bit more protective of the artist's work so tough it was a terrific beginning and i think it can be expanded on to include a more detailed analysis of the expression now since we're in this area right now and we've discussed the what this would mean to other artists if we look at some of the exceptions there too we find that they're not a clickable here because all of the other questions all reserve the rest of my  dolphins versus a colorful painting depicting dolphins in their natural environment with other fish marine plants and clearly showing an ocean surface above there is except as the lower court noted there is no other similarities either in the standard set in previous ninth circuit cases as far as colors positioning surroundings media  this case is even more clearly defined then the case of such we must remember that surprise was decided not on the basis of protection of an artist's rights but as the majority opinion so properly wrote the copyright act denies artist the exclusive rights to ideas and standard elements in their works thereby preventing them from monopolizing what rightfully belongs to the public this is an important matter and it was properly considered by the lower court in its decision we have talked  the court asked about positioning of dolphins in nature and mr steele denies that dolphins swim vertically well i can take two great examples one dolphins are mammals and they have to go to the surface and they can't go to the surface by swimming horizontally only they do swim vertically and we have all seen whether it be at marine animal parks or on old flipper shows dolphins swimming vertically even breaking the surface and swimming backwards and forwards in a completely vertical matter the court can take judicial notice that dolphins swim or a zone only as a matter of fact as part of the a summary judgment motion the lower court can recognise that dolphins are social animals dolphins swim they swim vertically and horizontally and because they are social animals that them crossing while swimming together is something that is found in nature but what would it is to poke and so had to have done their due to change is arguably realistic depiction of the dolphins to make it entitle to the protections at least as was described under saddam well i think what the original artist would have had to do with a full color rendition of two to three dolphins not two but three dolphins in a social setting with other marine life both plant and animal and instead of showing it without any surface or context of the ocean showing it being within the ocean i might just like the old supreme court definition of what is progress might not be able to tell you what it is but i can  might not be able to tell you what it isn't but i can tell you what it is when i see it and in this case the appellant's claim of infringement does not pardon the pun but hold water in this matter  moving on another example is the training aspect and i believe i used in my brief that you could have a trainer sit a german shepherd use a shock collar so it maintains a sitting position till the artist is finished with his or her illustration and that does not give a copyright protection understood tava when compared to an allegedly infringing work which shows a similar dog in a similar pose sitting with the family near the dinner table and surrounded by other matters over one third of the subject about picture by the respondent has the third dolphin and the other type of marine life and that is certainly what the lower court and what this court can use to determine that there is not substantial similarity here and that certainly not in protectable items or elements your position is that you make the judgment based upon all of the elements that are contained in the original artwork all of the other fish in the water in the plant life and so forth and all of that become something as protected will not just the isolation of the few dolphins to the extent that the intrinsic element becomes a part of the extremes of determination by the lower court yes however before we get there and the lower court properly found there is from show from artistically expressing to dolphins swimming in the water amongst the scene a general marine wildlife s so under the extrinsic test for substantial stansell similarity that's how you would break down the elements of your work of your clients work how would you break it down well i would start with saying that my client as a diver has someone who's very involved in marine charities and is recognized in the diving world that  horizontally as the judge in the lower court said when you take these kind of animals and they're swimming socially you see this position in the wild this crossing position and he was not trying to create the same type of work as the same type of audience that the appellant did the appellant's work is is a completely different type of artistic expression then and so to the extent that the surrounding portions of the photographs contain other dolphins contain other marine plant life contain a depiction of an undersea image with a surface and the animals interacting below yes i think that could be certainly considered as differentiated even in the substantial similarity tests and i think that's what the court found it said that it did not find any substantial similarity counsels judge gould if i could interject the question do we look at just whether for detected elements are substantially similar to relook at everything i think a combination of both i think the appellant if we look at everything there's no similarities substantial or otherwise there's no likelihood to use a different standard likelihood of confusion they're completely different as they say one is a pen ink illustration and the other is a  multicolored marine life seen with with more animals including more dolphins so if we use the everything over all there's no similarity if we acknowledge that there are physical differences between the two dolphins that are the subject of the suit so there is not even an extra resemblance between the two dolphins so whether we look at it from a micro or a summary judgment such as before this court and when appellants consul said that they were not given opportunity to present evidence they absolutely are if they believe that this was not found in nature they had the opportunity to submit affidavits from these trainers from marine biologists and everybody else and were given plenty of opportunity to refute the summary judgment and to ask for that opportunity now scenes a day in that late a dollar short in my opinion and we're here to protect the public we're here to protect such that are decisive and although this isn't a novel matter certainly when reading the the lower court they gave it a great deal of consideration they even discounted appellants attempt to mislead them when they submitted evidence of direct copying which turned out to not even utilize the alleged infringing painting that was the subject of the action so i think the nine appellants appeal and upholding the lower court's decision apparently look exactly as they did i mean is that a great question of fact combined with the protectable elements that we need to let that guy i think if i'm amused an example of a dog sitting in the train or using a dog collar i have seen paintings and visual art of dogs playing poker now if he used a trainer to get the dolphins to play poker or use a computer play chess or whatever something unique found in nature would be then the posing is a very important but the fact that the posing was done not to create something not in nature but was to do something to allow multiple photographs from which the artwork would later be derived from the appellant's artwork and that the training and the posing was done to keep the animals in a position for moments of time which would normally be fleeting then that's not worthy of protection that doesn't change the standard of setup any more than if it's a top of the original artist had a jellyfish an aquarium in use that is the subject matter of that being said with no further questions i thank you for your time thank you thank you with respect to councils example of the sitting dog if that's sitting dog's put into position that is held there by the trainer and the photograph is tak the identical the identical copying of that photograph if that photograph gets copyright protection is a violation now here we have an interesting thing potter stewart's i know it when i see it reference political here because we haven't had a chance to show what we know when we see it because no jury under the extrinsic or in transit just got an opportunity to look at the two pieces of artwork and make a distinction the fact that the un protectable elements which we acknowledge of there there are lots of unprotected elements that has nothing to do with the protected elements and because copyright protection was given to this work clearly there are protected elements the the direct evidence of copying can be made in this case and should be made because it will show that there are aspects of the work that were simply enlarged not anything more than that but that says  efficient to violate the copyright and the extrinsic text considers whether there are substantial see some similarities in both ideas and expression and here we have a work of art that is the idea of the artist and expressed accordingly and as such is by the fact that it was given copyright protection is copyright there's no evidence before the court regarding whether or not these particular dolphins acted the way they did in nature and as such you can't make the leap that they are that they would because without the evidence there's no way to know if this particular art work happens in nature what sells looted you from making a more thorough record on the motion below it's not that we didn't make a more for a thorough this was a decision by the lower court that had not been briefed by the parties actually came somewhat out of left field and we were not in the position at that time to present the expert evidence that we were in we should be entitled to to a jury which is field i want to make sure i understand what you're claiming came out of left field the district court's summary judgment opinion was not what either side was actually expecting we didn't present the evidence in those on those issues because that wasn't before the court at the time which is why the extrinsic extrinsic and intrinsic tests were not made there because the court took on itself the role of the jury which in summary judgment which is disfavored in these types of cases was inappropriate the jury should have the right to analyze the material that is subject to the copyright protection and make the ruling accordingly was not argued below that  this does not happen in nature that it was uniquely posed it was not argued it with there was a our argument was that it was opposed but there was not this the evidence brought because that was not what the summary judgment motion here we're going to tell you i got a different impression from the record in this case than what you're telling me now lies college as you are but that's the way i looked i look at the record we'll look at it again yes there are other issue here is very simple and that is that without the protection granted by set up and again i think expression protects virtually identical issues and here we have them we have a virtually identical representation of the dolphins the parenting versus the painting we are not talking about the unprotected light into the fish the light the things like that we're talking about those that were already granted copyright protection with that in mind we respectfully request the court at the very least remand this back for a full trial because i think that more than anything else will be allow the parties to present all the evidence that's a seri and also decide whether or not this is indeed copyright material which is serves the protection that it's