t c had register duly registered to designs with the copyright office and those designs were entitled to a presumption of illiteracy yet the district court decided to create a new exception to the statute it's not consistent with ninth circuit decision the district court said that testimony from mr hugh a former employee of i t c that he recognizes preexisting clip parts in the designs does not demonstrate a lack of originality but under the quote unique circumstances of this case rebut the presumption ability the district court did not describe what those unique circumstances were but this ruling directly contravenes ninth circuit precedents in two important areas number one the district court erroneous lee uses the analytic text section test for infringement to test validity number two three districts court treats the presumption as a presumption that goes to the burden of production rather than the burden of persuasion of the elaborate if i can you have to test first you've passed to prove that you have a valid copyright then you've proved whether or not it's been infringed validity you look at the work as a whole this is what this court said most recently in l a print text versus or a post deal even though the floral designs may have incorporated preexisting elements it doesn't matter you can still have a copyright in the original arrangement the same thing happened in ross greeting cards the district court said on summary judgment oh the text is not original and to get this court said no you have to look at the totality of the text and the cards in the design because you look at the compilation is well what about the little tower the of this design makes the original each of the elements you have separate elements they were put together into a layered love to create a whole collage of elements the defendant mr hugh never says that the collection the compilation is not original and the defendants admit that in their answer in brief if the design is simply repeat ed over and over and over and that the original compilation when you say can repeating designs be an original yes they can and that's the north coast industry the mondrian case has repeating designs there's also the case having to do with the yves saint laurent where he has the repeating designs here it's both a copyright and trademark repeating designs can certainly be original but in this case mr eisenberg testified that this was a compilation he said it created a layered look he had various elements that were put together to create an entire layer look the court can look at this design can see that it's not a copy it was created by human hands and and it would be their burden to show that it was a copy anyway right not yours to show that it's not that's correct it's their burden to identify a preexisting work and show access and substantial similarity that's north coast mr hugh doesn't do that all he does is say well i recognize you have butterflies and they had clip art butterflies in their library that's like saying fireman novelist i'm a crime novelist and i have a library full of books i have to prove that i didn't copy some other crime novelist and writing my crime novel if i'm john lennon and i write another song and i have to say i'm dreaming and fees read martin luther stage they get the benefit analytic deception if this were case in which we were only saying they copied the butterfly and i'm trying to prove some stansell similarity then they could argue that the butterfly was an original in the analytic deception test for infringement but we're not there we're at the stage of whether the copyright is valid and that means seen the work as a whole mr hume never says that the work as a whole is not valid the color arrangement copy so why do you not try to get affidavits from the authors of these designs earlier and discovery we did but they weren't working at the plant at that time so you know these are businesses artists come and go all the time these two particular people were working at the time we had to go and investigate who the artists were as soon as we found out who we were we told them there's evidence in the record in the declaration here of mr lind that the defendants actually interviewed these two artists before their summary judgment we got the papers were due the response of summary judgment on christmas eve i know because i was a writing them on christmas eve we asked for an extension a short extension of time so we could go and interview these people they were both in korea they said no and the court said no had we had time we could have gone and got their information but this is a business that has people coming through here and they create hundreds of these designs in a month so trying to track and trace every single one and two does what becomes an incredible burden we're making clip art we're not writing lower few articles and that's what this is about they are instructed from day one the original there is of eisenberg testified to the routine practice court you have given us do you keep any more detailed records than just this routine practice and general instruction do you keep records of how the designs are actually was i know no i don't keep specific records of who does what and who looks at a clip art you're going fast but you have to understand the does that make i mean i i know that the general rule is that they have the burden to show that the copyright is invalid but you have the information about how it was created so does that put them in an unfair in this situation is not unfair to them no not at all why not two reasons here number one they had access to all the records that we had everything that we have they had they could come and they could look at all of our clip art and see what all the books number two remember this is the validity stage this is the little bit they're going to get all that benefit if it came to the infringement stage if there was an infringement but we now hear that they copied the design so really the whole all of the work is at the validity stage right now and if you i mean  just as a hypothetical i know you this is that you're what you say happened but say your business practice is to just copy and then not keep a record of the fact that you just copied how do they show that you just copied if you're not keeping records exactly how you did but how could that possibly be a business think about that if i were selling fabric designs to i'm a company of a company came in and said make me a fabric design and i said ok i'm copping out of the park but i wouldn't be in business they never come in to me why would they when they can copy it themselves they come to me because they know i'm going to look at preexisting patterns and they're going to tell me butterflies are in style right now flowers are in style make me a design and i'm not going to go and make a design and create a brand new butterfly i'm going to go look at what's there in the business what people are seeing right now i'm going to be inspired by that i'm going to make some variation to what to do with us that's my business if i were in the business of slave usually copying from clip parts i wouldn't be in business and so it doesn't make any sense and did you produce did they ask for the names of the clip art books and did you produce that information  discovery i'm going to have to defer to my counsel here if he wants to one rebuttal but as far as i know they asked for them we made all the records available so that they could come to the office of the books i have to say i'm not the one hundred percent no doubt in my counsel can answer that  second thing that i didn't wanted to address here is the idea about the presumption this is something i think it's very very important what is the nature of the presumption in the copyright act it says it's  valid registration no question the registration was valid but what does that mean the house report means says it also has the burden of proof intertainment in motion intertainment research group this court said you're right it affects the burden of proof what is the supreme court say in the department of labor versus greenwich colorings when congress uses a phrase in a statute we look at the common law antecedent when congress used burden of proof they always meant burden of persuasion not burden of production the right miller treatise give a football analogy so if you tell me you mentioned that the burden of proof was mentioned in the statute or in a report the statute says it's prima fascia evidence of the liturgy that congressional house report says it's intended to alter the burden of proof so we're supposed to recall it was a joint report but if i may your honor in intertainment research this court also said that's the version if we just look at the language if you need us to be looking at this report i'm kind of confused about why you're talking about this can't we just look at the language of the statute and isn't it good for you on its own i'm what i'm trying to say is that if you look at all the case law it refers to is this statute cream of it says it's prima facie evidence of illiteracy how does it work you know the modern law that it's now treat presumptions has going to the burden of per of production you know the say or wigmore or go into the burden of persuasion to prove so all i'm trying to say is that this statute goes to the burden of persuasion and how does that were the right miller when you're talking about burden of persuasion give this sort of football analogy if i may first twenty yards lines the opponent to the perception doesn't even present evidence to challenge the presumption the proponents of the presumption is entitled to a directed verdict on the presumption that the last twenty yards over here the opponent of the presumption present so much evidence contesting the presumption that unless the proponent of the thing comes forward with their own evidence the opponent of the production gets a directed verdict and there's the sixty yards in the middle the opponent of the presumption present some evidence to challenge it but that evidence entitle them to a directed verdict in that case the presumption and the contrary evidence as a jury question must go to the jury this is what this course says in north coast it's what it did challenge it anyway because it doesn't show what it was so into law today so this seems a little bit like a tangent right well i'm i'm trying to be is a careful lawyer if you don't agree with me here that i'm trying to say even if you tell me that mr hugh somehow challenged the presumption i'm still telling you support to say summary judgment was improper because even if you gave some challenge to it you see this court should still have said well it's still a jury question i have to put hughes declaration and the presumption in front of the jury so in either case i should symphony sweet design and medallion art design incorporated materials copied from clip art books it's in minutes such as brief before this court summary judgment the defendants offered evidence of this copying the declaration of a former question the court asked earlier to my opposing counsel we did ask for all these books in discovery and did not get them we were told in discovery that the only evidence that the plaintiffs had as to originally was the design themselves we the specific patterns if you'd gotten their books you could look through their books and here's the pattern so i'm trying to understand why you didn't do that what block you from finding out the books and actually showing that there was a copy we did the motion posed granted they said they didn't have any books they said they had no nothing those books they don't have them they said the only thing they have on originality is the design themselves the court granted and the transfer from the ocean the pelican the record with the court says you need to produce everything that you have on this on these designs we asked for show how present right but it's one thing for them to say we don't remember which book this design came from it's another thing for them to say we can't tell you the names of the books on our shelf did you ask what are all the books you have and they said we can't tell you we where is that in the record we did it is that when you're on the a supplement a record at one twenty four and one thirty three it needed to not have any records or information as to where the strings in the elements came from that's a different question what books they can where is the question where you ask what  books you have on your shelf and they say we can't tell you what books on our shows are in the same discoverers say where the question where's the thing i'm asking about i will use those same discovery responses in one twenty supplemental records one twenty four and one thirty three turning to the presumption your honor the huge echo ration not only talks about how the specific background elements are certain elements in both designs were copied off books off the shelves of i t c it also talks about the pattern practice of i t c of doing this of doing this exact thing of copying design that of books and counsel makes comment that if they're designed if their business model was only to copy things that a book known would no one would do business with them well it isn't true what they actually sell fabric they sell fabric with designs on them and the mere fact that they don't they copy book that is a copy images at a clip or both would not impede that business model they would copy a design at a clip art and actually that would be the more efficient way for them to do it opposed to employing designers and create new designs wholly they copy them they put it on fabric and then they sell the entertainment research case which was cited by my opposing counsel earlier states that an infringe for these discovery requests i have not yet found one that says identify the books that your artists were using all of these seem to be tell us about this design tell us about that design it so it seems like you could i'm a little bit worried about the fact that they have the information about how they create the designs and so it's a little hard for you to show invalidity but if you're able to find out the books they're copying from look through them and say ok here's the design that they copied that would be something you could do and i don't really understand why you didn't if these design came from books and we asked them for the books showing the preexisting materials so with a camera those books would be responsive if well but it's not clear to me that i mean ideally i think they would keep records of what they did but they didn't and i don't have any cases if you have a case that says they have to keep it or better records i'd be interested in what it is instead they have a presumption that their design is valid and you have a burden of some sort to show that it's not and you could find out what books they're copying from and then show us that it's copied but you haven't and i and unless you have some reason why they blocked you from looking at their books which you haven't yet actually identified and that you move to compelling you did everything you could then i'm not sure why we don't put it on you for failing arrange them how you selected them help to make the argument that a compilation can be original it can be copyrighted we agree we agree can be if they take a preexisting work and they take to produce the words and they mix them they change as given that you can see that how does the huge declaration go to validity at all it says parts of it are copied but if you agree that the compilation could still be original how do we have any evidence that this compilation is not original we don't know this is the compilation you're on and there's no evidence that this is  show that their design is invalid and you haven't even alleged what you just said you'd have to say the whole compilation was copied and you haven't even suggested that it is i would submit to the court our burden is this but some evidence to or to challenge the originality of their design but the originality of that or design includes the compilation which you just conceded the compilation itself they're reading from in itself could be the original part and you've said nothing he says nothing about the arrangement in this case as  earlier as a defender in this case we're stuck with what plaintiff gives us if we don't have a former employee we would have had anything as having a former employee he's able to testify that yes part of this is i'm copy all that we have to do then to restore the originality is to say yeah maybe we copied this part but look we added this or we copied this or we combine these together once once in opposition summary judgment they offer no evidence and they they have no evidence as to originally what i saw it seems like it's your burden either get their books look through them all and find the page that's exactly the same as the design or the other thing you could have done and i'm sort of vessel by this the other thing you could have done is given them their extension to go find these artists in asia and waited a week and then and then depose  or whatever and found out if they copied the whole thing or not but instead you blocked that and it seems like it could have helped you so i'm really confused about why you did that in terms of the getting additional discovery your honor the we had tried for months dry to get a witness on the originality  design with all the thirty we are both are good i understand that they delayed i understand that they did not behave perfectly but once they said we finally found them give us two more weeks why didn't you say great we can finally figure out what happened here with the compilation i don't understand why you said no it's too late well right at that point we were past discovery cut off the motions were not fully briefed and when they did request the additional time for the discovery they had nine months to figure this out now becoming a battle one significant hole in your motion your motion only could say we have a vague idea of these pieces we have nothing to say about the compilation you must have known that under the rule about what validity needs you had a problem but when they offered no evidence that it was accomplished this was in a situation where they say look i know we combined these things but the orders will tell us exactly what went where they didn't even have the we know we combine these things read the artist might have maybe known but we are don't know and they have no records the even a stubbles what these artists did another thing that i think is important to note is the identification of the artist was not offered in opposition to summary judgment the identification of these artists was only offered in the lin declaration which was offered to the court only for the purpose of asking for more time for discovery the live declaration was not cited in opposition to summary judgment showing that this was a compilation there is no ever thought that whatever a judgment motion had this problem that you didn't know anything yet about the compilation of the arrangement so i understand that maybe you couldn't have because you didn't have access the artist but then they come back and they say give us some more time we just found them and that might have given you the opportunity to interview them and find out in fact they copied the whole thing but instead you didn't you followed it and  we're in a situation where you don't know anything about the compilation well we we don't know anything about how they created the designs they haven't told us anything about the current designs now going to the presumption which which is what they have they've said yes we copy pieces but we always do something original with them they have the other problem with what does that mean if they have a policy we do this always it they do it for these designs to write you know the problem is that when he says that the policies do something original there's no question or there's no resolution the question is what you did its original sufficiently original support copyright if you add one extra strand of hair to a picture of a person that may be original in terms of their policy but is it original for the purposes of copyright needed another burden to show that whatever it was that they added wasn't enough because they've got the presumption that they have a copyright yet it was once our presumption what back up second the presumption affects a lot of production the bird persuasion is on the plaintiffs always they need to show their valid copyright when you ways about the presumption in the lamps plus for seattle lighting case this court found that that lamp plus took four component parts and put it together that also but of the presumption that wasn't case of copying at all but it's the ribbon of the presumption that was probative go to the entire test so i mean yes you're saying vaguely that some pieces of this seem to be copied but you have to show that the whole thing was copied or that the or that the way they composed it is not original and i just don't see how you've even met a burden of production as to the whole question we need to look at it well and again when you talking about the design as a whole versus the component part of it the entertainment research case is one where the defendant put to rebut the presumption it was a two dimensional picture of a plaintiff then comes in with here's what i did that's original i made the three dimensional costume that could be worn and i changed the facial expressions ok so plaintiffs of the come in and say look here's a piece of paper showing you copy the entire thing it show that the plaintiffs in that case the court found that's not enough that's just not original enough and the case was disposed of on summary judgment the presumption operates once the defendant rebuts then plaintive then has the burden of establish neutrality entertainment of this line that's nowhere in the course or it's not clear where that comes from what the court did say is important the court's order all the evidence the plaintiff typically copies of clip art book or other public real sources in creating its designs and howard who testimony that he recognizes that the far books and skip ahead a little bit does not necessarily demonstrate lack of originality it is sufficient to rebut the presumption the court recognized there to be a compilation here yes part of it could be copied that rebuts the presumption what the original they didn't do that the court didn't require any phrasing right show me you copy one part but show me what else you did that was the original point of couldn't do that because they had to and they had no record knowledge they had no records and they couldn't meet their burden well wasn't the defendant prohibited from speaking with designers didn't have a difficult time speaking the designers it's a fourth in my declaration in opposition a motion for summary judgment in requesting additional time the defense actually spoke with the designers ok they spoke to the designers i believe prior to the time that their motion is filed after all how did they know who they were if you didn't why hadn't you gotten their declarations earlier so what happened was it's somewhat difficult to find out who the jang ok so it's not a situation where they don't know or they don't have the evidence and if i'm happy to concede mr short time to come back up here and talk about his discussions with mr jang that he definitely spoke to mr jang so it's not a situation informational disadvantage but also points to the fact that there should have been time that was given what about the informational disadvantage about your books so did you ever identify your books we did and we actually off they did emotional hell we offered for them to come in and look at all the books and they declined i don't know where that is in the record and but there that offer still stands today they can come and look at the book the books are not thrown away and we definitely ever said we threw away the books i think it would be helpful actually to me anyway if both sides what identify where in the record they think you didn't get the identification of the books and where in the record you think you said come look and then they did i'm not sure that's in the record but if we can supplement the record why wouldn't it be in the district court why wouldn't you be able to prove that you told them you can come look at our books if you want to if you did that why can't you prove it pushed and there's definitely nothing the record or we say we threw away the books or anything like that counsel are you still seeking the reversal of the discovery order that the moyle of the getting discovery of the on the on the extension of time yes you contend you still need that evidence i don't think that we need it but under the unusual circumstance of the case in the words of the district court if they're really going to apply a new standard to us defeated your presumption of illiterate and it doesn't matter absolutely and very specifically here is why all that that declaration says from mr hu is i recognise some things in there what they are nobody knows he don't ever identifies a scroll he never sa this thing you never circles it he just says there's some scrolls there's some butterflies and he refers to generically he says these generic things in their works are similar to some other things in some books that i can't tell you what their names are there's no way that that can rebut the presumption and we give the example in our brief of imagine by john lennon and what if somebody came in and did that exact same thing to to john lennon and now you have to bring in john lennon which is impossible to  exactly how he created the song because you know he had a he had a you know a few other songs and in fact that is the history of imagine that it is inspired by their songs so there's when we talk about what's being done to shift or what's being done to rebut the presumption is really nothing it's just in the air it's talk in the air there's no specific anything there's no reference to anything specific and that is crucially important the problem is that if they really had no ability to say more because you had all the information and you really did stonewall you didn't keep records and then you didn't show them the book i mean if that's their story if that's really true then it is troubling because how could they have done more i say i understand there's two quick responses to that the first is the fact that they spoke the design on the we didn't i think tells you about the stonewalling it's just it's a difficult process particularly when one of the designers said i don't remember i made ten thousand design well number one they were going to defamation that said i write their motion wouldn't have their motion would have i don't know because that's not that different to what you were saying anyway so it doesn't really add that much ok the second point is with respect to their in from the first point on informational disadvantage is let's get the answers right i think that that's a very reasonable approach particularly when we're talking at christmas time one the second point with respect to informational disadvantage is this a lot of this comes up because this is a case of admitted copying right so they just have to cross their fingers and pray that this thing is not original that's their only defense and that's why we get all of this stuff they can't they don't have somebody who they can say no i created that that's my original design and so when you're when you're looking for the when we're looking for these things it's really an effort to to bail out somebody who took a design by their own admission so i think that's why some of these  questions arise because they copy it wholesale counsel do you have a monopoly on the clip art books aren't those regularly available to all your competing industries yes and the un or non copyrighted clip art  if they don't have to get the clip art book from you then go out in the market and look at and prove the that exact pattern that exact compilation was the one they used hundred thousand years or there's nothing even close to that in the record all that it says is there's an scrolls in here and i've seen from scrolls one of the i mean one of the thing in that regard one of the designs is called medallion there's no evidence of any where that medallion is in clip art the mr who doesn't even mention medallion so the dominant talks about the the practice in procedure and the defendants go on and on that we have a practice and procedure of stealing and cobbling things together from other sources they can't rely on that evidence and then say well our the subject is not true now and i'm to tell you why that's not trip on what source material is a district court referring to and i don't mean to rhetorical question the court so let me answer it this record is not referring to any specific source material there's no there's no anything that's identified that's a hypothetical source material that isn't what they're saying is the point of this failed to prove zen and prove that they added anything by ok that being the kindly answer my question this is the last time and i'll give you ten seconds to do it is there any evidence presented by the plaintiff of an additional creative addition to the medallions in the copybook what is it and where is it