top associates versus kangaroo manufacturing number eighteen dash but we're not we're not going to t well you might as well cook to the podium thank you but they're very very very similar it seems that we've already started argument but i have a question since you took them out i've wondered if perhaps you've already answered it by just showing it to us but the photographs that we've seen showed people wearing black kind of leggings and a shirt that is not part of the costume that is not part of the costume the concept in this just the yellow overlay over your clothes injunction i don't see any order in joining you from doing anything where is it what what the order of the district court tells you that you cannot sell your costume or do anything allowed to sell the software you not allowed to do this you're not allowed to do that as far as i can tell you're not laboring under any disability your honor i am pretty sure that if my client were to go ahead and sell the cost and they'd be hit by a contempt motion there an appellate and there was an injunction bomb that was posted and maybe it's not our police drafted by the court but we believe that it affects us and it prohibits us from selling the costume which is the subject matter of the injunctive application so it's enough that everybody is laboring under the misimpression that there's an injunction that prevents you from selling because if this court were to rule the there were no preliminary injunction and that this appeal is moot we'd be happy but we would have to go back and essentially would again the same issue over again because i'm sure they would immediately apply for the court to issue a more detailed order should we just stay this appeal so the district court can enter the injunction that everybody thought it entered well i think  the proposed form of order by the movement had the language you'd typically expect to see in an injunction but for some reason the district court didn't enter that order modified your honor i don't disagree with you and but we are here today and i think appeal the court says that the order is not artfully drafted in should be dismissed or vacated that would be fine but we think that the court should address the other issues that are on the subpoena today  look there are two banana costumes from competing companies one of them has a certificate a copyright certificate that does not prohibit this court from looking at the validity of whether a copyright should have been granted there's a couple of elements that are required in order to have a valid copyright one of them is you can't copyright a useful article and so costumes in general have been considered useful articles and generally not subject to copyright protection for a costume there or if there is a design element on the costume the supreme court in the star athletic case has made clear that you have to look at the design separate and apart from the underlying base costume and so there's an element of separate billet you look at that separate element which here is a banana and then you decide whether that banana design is able to be copyrighted and that's the separate ability requirement the court then has to go to look at whether or not bent for you just a means to score a flip because it is an interesting opinion it it surely applies here  but the court there explained that that the respondents had no right to prohibit any person from in your factoring a cheerleading uniform of identical shape cut and mentions to their their ones aren't you asking us to do just that presents any originality and our contention is a low bar for that well this does not present originality in any form and there's a whole series of cases which we've cited to the court which basically find that designs that are directly imitative of things as they appear in a chair are not subject to copyright protection they design name address that in the context of he'd never copyright a painting of an apple if there's artistic expression that is different from just copying the apple then it might be subject to copyright protection if there's an in layon the apple all if the apple has some weird very clear the testimony of the c e o from the company said specifically it was designed to look like a banana in nature it looks like a banana in nature and there's no artistic twist to the banana that's clear from the testimony in the record so we don't have to go that next step to say what if some fancy the artist painted the banana on the canvas is that different this is not that case this is the clearest simplest case of no artistic element to the banana well if you district court articulated eight unique features and if you go back and look at those eight features  on i believe twenty six of our brief hold on a circuit surrey on page sixteen of our brief the court lays out these elements but most of the elements that the court lays out  utilitarian features of the costume that cannot be subject to the copyright protection that are is to say specifically as far a star athlete dick is concerned not part of the elements of deciding whether or not this costume can be copyrighted the location of the head cut out the arm cut out the collar is there the cut outs may be utilitarian in opera tech bubble but that doesn't mean the the fabric and design of the what the banana looks like isn't protectable well there would have to be some artistic element separate from just designing it to look like a banana if you allow is there's no taste on this in the third circuit so if you go out in a lot of us laws out of the ninth circuit if you go out and allow somebody to say here's a photo of a banana or here's a picture of a banana nobody else can make a banana that looks like a banana you're basically giving somebody the right to copyright something that's not original not artistic and flies in the face of the purpose of the copyright statute about the and create a design element on a banana and say this is a unique artistic creation it has squiggly patterns sunglasses whatever it is that you've done to make it look different than a banana but when you make it look like an actual banana and you intended to do that and you don't add artistic elements that's when it falls outside of the scope of being able to be copyrighted or does that mean it sounds like you're arguing a costume of  no i think if you were to take a banana and put some brown spots on it like it rots in nature i don't think you could copyright that he had there but if you put gold stars on it you made an in lay pattern like my tie to be an artistic element ok so so the the diversity differentiator for you is you need to do something to the thing in nature that tells the viewer that it's not the thing in nature it has to have an an artistic element or an element of originality not something well that's why it's heating of an apple a mask you hypothetical i mean every every time every time someone takes a paper rush and paint something isn't there something inherently original about that i don't know the answer to that and i'll be quite honest if the most famous artist in the world painted an apple and they did it in a certain way with a certain background that a certain element so that you identified that as an artistic work hanging in the loop that might be subject to copyright protection but if you take a photograph where you'd take something are you so i don't i don't know that that sounds like you're saying that it talented artists who get recognized in the louve get their works of creation protected by you know the group feeding artists or you know some person laboring in anonymity saying that it has to be high high art to get copyright protection no but if somebody just sort of puts a picture of an actual banana out there and you say hey i did this to look like a banana there's no artistic bent to it it's a costume and costumes off the bat have an inference against them being protect the ball i don't think this rises to the level of being in a riginal artistic work there's always going to be a degree of analysis that has to go into every case to decide whether or not it satisfies that one of the cases had to do with a turtle pendant and it looked like a turtle and somebody put some jewels on the back and the court said that looks like a turtle and even the placement of the jewels is obvious it's not something that would rise to the level of artistic expression the star of the case is a cheerleading outfit and the court said that the outfit itself would not be subject to protection but they put a little inlay design on it and that might be protect the ball so i'm wondering what your suggestion is as to how we review this case so you eyeball the features that the district court identified is unique and say to my eye that doesn't look artistic even though the district court found the how do we do this in the times of i can answer it or this is the way that this decision should be addressed is the first step the decision is wrong because it relies on utilitarian features in doing the analysis it doesn't comply with starflight of second even if we get past that objects as they appear in nature as there's a whole line of cases that talk about it should not qualify as original works for purposes of copyright step three in this particular case we don't have to split hairs  doing the analysis because the testimony makes clear that it was designed to look like a banana looks like a banana and doesn't have an artistic bent and that's testimony from the c e o who is involved in the design process when you put those three things together at least certainly for this case these this is not a protect the ball costume but in terms of the court expanding on that i think the court can use that framework of analysis in the same way that the other courts have done and you can either come out with the conclusion that if it's designed to look like something in nature it's not protect the ball or you can make a more narrow holding or actually a broader holding that basically just says there's a presumption against originality when you design something to look like something in nature and you have to do something to get past that threshold to show that it really is original costumes were distinguishable and not infringing because they were distinctive of design elements and they did not look like a right banana if the court just looks at those different banana costumes the court can see that's that's not accurate these bana do not all have distinctive design elements but they are all not substantially similar to our banana design so if you look at each element of the banana all the elements such as the ones the court pulled out and it's decision they're not all the same so the tips of the banana what is utilitarian about the tips of the banana for example yes if you put the costume on it close the body which is the utilitarian function but the tips on the banana do not out so when you're designing the cups the banana is it original or not is that design original when you choose how many lines to put on the banana that's a design feature it's not you tell a tear and the lines are tell tarion and it will banana has multiple protection because this costume was created by my client in two thousand and one and the judge of that was not the first judge to look in depth at the staff this issue other judges that is well over that eighteen year period and it's never been invalidated by any  and the copyright office looked at this issue at in the pen except seventy three we have a letter from them there's two registrations that boston cost owns for banana costumes there's the one it at issue in this case which was issued in two thousand and ten and there's another one that has for cost and that's very similar only the old right and and that the copyright office initially refused registration and then a turning argument was submitted and they said you're right we agree that under feist it meets the requirements for physical  positive in any way for us thank you well it creates a presumption of a liberty which that which the court may overturn but in doing so it would have to disagree with the copyright office and obviously with judge hellmann who looked at this issue and i believe that would be the road that would create completely new law and would be inconsistent with all of the other decisions in this case starts led it is a very important obviously case to consider in that case they found the design elements were protectable however the cheerleaders uniform shape which is much more candid clothing and her example the top portion or the bottom portion of the banana costume was not protectable but cheerleader uniform is also this iconic universe old the clothing shape that we see over and over again and used in companies clothing companies across the nation whereas there is no one universal shape or banana design that's been accepted for decades and decades in american culture when you look at this exhibit i was sure anyone thought it was called until your coin came up with you but it's true i mean this is my clients a smaller family company and this is their claim to fame this is their howling costume designers and this is a very famous costume in in the industry it's a big deal to them financially there's no copyright current idea such as the idea of the banana costume the turtle pin case opposing counsel cited in that case they were saying the court said there's no copyright for the idea of a turtle pen when we introduced this costume in two thousand and one it was the only lightweight inexpensive banana costume for consumers there was a mascot one that the client was aware of that was one hundred fifty dollars plus and very heavy on the body so this became very popular but even is more lightweight when costumes have been introduced in the market there's been no lawsuits filed leaving knowledge that those are not infringing because there was creativity in the design but in this case copying i believe may be an undisputed and substantial restated in its brief is not disputed so the only issue is whether you can copyright the design and the reality is when kangaroo designed its product it needs choices made choices about the and dimensions to their to theirs and that this case it's not this case because the identical similarities between these go beyond just the shape and unlike a cheerleading uniform which is more traditional clothing shape which is been used for decades and decades there is no one shape of a banana costume that's utilitarian where all the past to be a banana or wise it's not a big cost but when you look at the different ones in the market you will see some of them curve to the right some of them curve to the left some curve behind the back some of them curve in front some of them are higher up some of them are longer there's so many ways to conceive of to create a banana costume and sporting events to think they are and why i have never understood that in more popular so in this case there are unusual facts you know we have our picture of our product our trademark roston pasta everything displayed on amazon you go to buy the banana before the injunction was issued and you're shipped kangaroo's banana instead is the consumer after you've already made the purchase so we had injunction was granted it's not an order we still in the fight we can't ignore the final order rule right i mean you drafted you order your proposed order said what it was supposed to say you had all the details in there as i recall sound hypertechnical but there is a doctrine called the final order rule and it does go to our jurisdiction and there's a distinction between opinions of this court opinions of this quarter not orders right we are a judgment after we write our opinion supreme court doesn't they put a simple line on the end of their opinion that says it is so ordered their opinion is the judgment here judge humans opinion granting the relief that you seek is not an order of court judge's opinion explaining why he's doing what he's doing but the new order doesn't prevent them from doing although i do understand why counsel didn't go ahead i think you would have had them hauled in front of judge hellmann pretty  out all the things that they can't do he just didn't enter that order yes or no before my time is up i just wanted to quickly address two other points raised by counsel the first one he says my our c e o said it was designed like a banana it mimics a bat i would encourage the court to just look at his actual words because that actual words he sat where when questioned on the witness stand it was based on a banana he said yes it was based on a banana the paraphrasing of his words does distort the meaning of what it was said the meaning of of what he said was that he did create a unique design that there was nothing else like it out there at the time and it's been a it's been a great success for the company which has has led to copying elements which are separable which means that you can take the lines and say there's no utility to these lines there's not just one way to do these lines an actual banana has more than just these two lines you can take the tips and can you create an article that's not useful that looks like her banana and has the same artistic design features that are distinguishable for others so the company has been around for almost thirty five years if they have a thirty five year celebration party and they want to create a that looks like their most famous costume design they could create the outline of the banana without the human inside it but just opinion otherwise has the same and has the same layout has the same cut and design and everyone with a neatly walk in the the cut looks different and if you created multiple communities you could probably match which one went with which which cost you and that really illustrates that there is a separate ability there is artistic a creative spark there's a difference between a limited copyright protection and no copyright protection and we concede in this case that we have a limited copyright protection and that this is not high art that may end up in the philadelphia museum of art but what we don't concede is there is no creative spark there's nothing original and that consumers can be harmed and confused in the way that they've been in this case and that nothing of value has been created by the company which is protected by intellectual property law whatsoever very thoughtful and we have to actually take pictures out and read put levy opinion and then take the pictures out and look at the futures he's talking about here i think the opinion can can stand on its own but the pictures helped imagination imagine each different way that you can create a banana on the on the body so when you look at that it may seem obvious but when you see it next to all the other ways that that artist conceived of this design it just illustrates your imagination what bananas can go to the similarity and i believe copying have been conceded so the only thing is is there originality because for copyright infringement you only need about copyright and copying set aside copying were left with was the copyright office did they validly if she were copyright to big apply the law correctly in issuing it and for there we just need some creative spark and when he pulled out each of these things and looked at star atlantic and said ok banana costumes and cheerleading uniforms are not of equal utility but i see enough of a design here that's protected i believe he was correct in doing that and identifying things that are separable and come together to create the design opposing counsel said well he erred in looking at the cost him as a whole but that's not actually found anywhere in the law under face they actually look at the copyrighted work as a whole and obviously that's part of substantial similarity no we haven't gone after all yellow bananas no we haven't gone after all bananas with two lines but when you look at this nearly identical product and you look at the unusual facts of this case then i think it's clear copy that copyright infringement you i'd like to summarize very quickly three points that i think i'd like to leave the court with the first is that the elements that are relied on in judge hellman's decision below incorporate utilitarian aspects they don't follow star athletica by analyzing the separate entity of the design from the costume so right off the bat the analysis is flawed the second thing is what you'll notice missing from judge hellman's decision is there is no analysis at all and it's never even addressed any of the cases that talk about not being able to copy things as they appear in nature there's a string of about five or six and the third thing is it like to just read a little excerpt that we've cited in the brief but read the actual text from the transcript because counsel talks about this has some artistic add on from being a regular banana so i just want to read a page of text from the transcript of the hearing your forty two seconds i read fast question in fact i don't mean to be dramatic here's a banana that i brought into court mine isn't right there's a little overripe it got some black spots but is the best i could do in short notice it has a black tip on the bottom correct yes and a black tip on top when the stem part connects to the tree correct on that one if the top piece is green it's still on there correct and it's yellow it's curved also look like a real banana yes and it has a black top on the top that yes and a piece of black piece on the bottom yes and it's curving yellow like a real banana yes did you use a real banana as the image on which was based we looked at a banana because that's what a banana is based on there is more in the transcript but the transcript is read from just for that i read from page to  it's page two eighty one to eighty two of the record i want to thank the panel for her hearing this today i think it's a case of first impression in terms of extent in the circuit of most