that may not exist in many of the cases that you've decided in the past and that's that the inference from this case consists of twenty four different jewelry styles different jewelry decides and that's important in this case for a number of reasons and that by the defendants in this action the guy in consideration in drawing the line under the copyright act for infringement is preserving the balance the balance between competition and the protection that you're given if you create something now the copyright act was promulgated to incentivize creation were richer as a society if we have more designs and more styles and if you have a company that is strong and not just one but twenty four designs you have you have a chilling effect you have a situation where a design company like my client isn't going to spend the time and money to develop new designs not only to develop a new designs but to do the market research to see what is successful what appeals to the customers allow in this case not only taken twenty four different designs its entire collection from my client to creative expression it's used my clients customers for market research so not only did it copy here it also cherry picked the successful designs and brought those to market to compete with with our client now in addition to the names the intent of the rely on and use today they said that the more action abstract the more creative your material is the further along you get on the spectrum if we look at the the phonebook from face being on the far left that's the thinnest protection you can have phone book sure they may not be as complex or creative as stuff went to the kiss but they're somewhere in the middle and what the code did was it made that binary decision it looked at the pieces and decided well i don't think that it's really creative so i'm going to give it the least ury although i'm troubled by the fact that the district courts are seized on the cloud is the one feature that was common and therefore it couldn't be entitled to much protection can you the robe itself is not the basic element here these words are created by twisting stainless steel to create the local rope right so with but the idea of producing it i mean ok so you use steel wire but somebody making maritime selection of materials a selection of color a selection on how to treat the stainless steel strands to create the rope you're also figuring out which type of intensity to use to twist the rope you can twist these ropes in different ways to create stick protected by the combination of elements and it's especially apparent that there's enough creativity here we look at the entire collection of works there's twenty four works at issue each of which entails and is comprised of numerous artistic decisions from again the coloring the selection of one articulable difference that just cause and relied on in the district court case and that was a fair initially that a functional element the functional element is not entitled to protection second the court is something else the temporal nature of the infringement here makes clear that copying three of the defendants tappers had been in miami lakes were clients of my client all or they stop buying from my client a war and almost immediately began buying from the defendant lal so not only that that  accepted at the temple proximity between the cessation of business with my client and the new business with lal indicates copying her makes more more probably not copying what also makes my problem not copying is the fact there's no independent creation evidence in this case speak to put pencil to paper they indicate they were provided from the hong kong manufacture to them but that's all we know about the provenance and they're here saying they should have been considered by the court now going back to the collection argument which we think is so important here you have these twenty four pieces and you have a collection created by lab is comprised of these pieces in total if you allow lal to isolate each piece and compare all of the conduct in toto we should be looking at what they took from each of the pieces combined cropped picked up on this nuance and crop there was the the pop and stuff program some piece of merchandise when they did the analysis they but are we talking about the fact that these are actually displayed in a display case as a collection of different designs by the same manufacturer etc the display in  identical that they believe that my client created them and the advertising you've done in groups there is the sort of the piece are called stop the bangles because the people that were there were four or five of them at a time which is another reason why they should be compared collectively and finally serenity peace reuben registers a single unit registered as a collection so i'm not in that situation you have to compare them in toto because they're single unit as defined by the c f r i'm running of time so we're going to  maintain my last four minutes it ins in sitara that that's the jelly fish sculpture case in that case the court found that the individual elements of the copyrighted work were not protected individually and but it found this with and that was a case involving preliminary injunction but a found it was theoretically possible that the selection arrangement could be that such an arrangement of those unprotected elements could be protected in our case the court also found that the individual elements of this novel cable jewelry was not so are not protect all in themselves there's  that what they claim is that the selection and arrangement is protected the course here said it's not the selection arrangement is not original understood toggles lowry the elements have to be get a right in that respect because if you if you hold to that the individual elements are not protect the ball as the court did hold and then it's said that some  syria this isn't a preliminary injunction this is a motion for summary judgment so the question is whether they are pro tect it and they aren't protected so the court i don't believe got it right in that sense i think that the court protection when there's been protection there has to be virtual identity between the defendants goods and the plaintiff goods in other words have to be almost an exact reproduction counsel the problem i'm having with the argument is why shouldn't a jury make that determination there are three elements maybe elements is the wrong word but three things that really bother me about your position one is the the comparison which i thought was very effective in the plaintiff briefing of the pieces of jewelry side by side and just looking at the comparison and they look awfully similar to me second is the fact that your client doesn't have a very good explanation as to how these designs came to be and in considering the temporal manufacture of the the jewelry it sure looks like they were being copied from the point jewelry and that the the third issue is the tate you know the sales to the same wholesalers and the confusion by the customers in returning these pieces back to the playing of for exchange or repair isn't that sufficient on summary judgment to show there are contested issues of material fact that a jury's going to have to sort through rather than asking the district court to declare as a matter of law that these can't can't fall within copyright protection i don't know you are the confusion part of it has nothing to do with this case that's that's a trademark concept it's not a copyright concept the question here is what because in other words you're say that not relevant the copyright claim to take for example my question with regard to the origin as i understand it the best your client can say is we make this stuff in hong kong and there's some jewelry manufacturing company there and they work off of the pencil sketches which are are pretty vague in terms of detail and then i look at the side by side comparison of the jewelry and it just seems to me that it's a jury question as to whether your client's explanation for how these things came into being might better be answered by saying we took the plaintiffs your room we set it on the workbench and we set out to make an almost identical piece of jewelry the cheaper material and then we under sold the plaintiff now why you say that's a trademark issue but why doesn't that also go well when we first address that the temporal aspect to this you refer to the pencil sketch is the way my client works is he he describes what he wants from his manufacturer the manufacturer then goes out and produces the testimony from anybody in hong kong that these are the sketches that i made based on the oral requests of your client for what he wanted but my client says he received these sketches there is a line created by your client that looks awfully similar and so whether there are sufficient explanation that the jury can reject or accept whether in fact the items are virtually identical or not those are questions that should be left up to the jury they look pretty similar to me but i'm not the one making that decision and so why should the trial court be making that decision as well the question isn't whether they're similar question is whether they're virtually identical well birching the identical or substantially similar really depends on whether it's taking a proper direction but that goes back to my original question to you let's assume the district quite right that it is entitle to the new protection  tests that the jury will be given is virtually identical to the test isn't that it has to be exactly the same so why isn't the jury in hyde open a p decision as to whether the jury's virtually identical or not because the court can tell just by looking at them side by side that they're not virtually identical i'm not sure i can do that i mean we're reviewing are we not the noble because if i take your position we make the determination as a matter of wall that i can look at the side by side comparison and declare there is no way that a rational juror could ever conclude that they are virtually identical so we have to be able to say that you have to be able to say that that's what judge klausner did by looking at them but what but with all due respect to judge klausner if we're here on the noble review what he thought really doesn't matter what we think right absolutely and i have great respect for judge clowes and i don't  dispersions on him but i mean i'm just looking at the same thing he looked at and scratching my head as to why he ruled the way well one thing that was unexplained one case they were comparing a ring to a bracelet ring and a bracelet are virtually identical by any might of been the other way around but a ring is not going to be virtually identical to a bracelet there's no way that it can be in another case they were comparing a pantsula had to have a ring you that have a brain it just strikes me i'm looking at four different examples out of the twenty four that are all almost the same thing it's like being struck four times by lightning i just i look at that and i think why isn't this  commit reversible error when it granted summary judgment in your favor i think that the clasp of the other things that a coin and out that were different about them means that that as a matter of a walker herbert they were not virtually identical hasn't been shown in this case is that this g m factory in hong kong had any designers at all there's no evidence in the record that they even employed designers let alone the design of the supposedly created the sketches that's a blooming look we're looking at who created these pieces for the child would respond to these to these items because we should look at the reasonable observer and in that same case they know that's why substantial similarity is such a perfect issue for the jury because you need the early region but observe this response to the