my name is patrick same i represent humphries and partners architects the appellant in the non movement in the summary judgment proceeding below in this case which is a copyright infringement case involving architectural works copyrights my rejections granted against my client on the subject of extrinsic substantial similarity we believe that the the district court committed numerous errors of both summary judgment procedure and basic copyright law and would first like to point out that the court did not even need to get to the issue of substantial similarity in this case because we presented evidence what's considered direct evidence of copying in  evidence first the defendants actually had a copy of my client's building floorplan in their possession it's beyond access they actually had physical possession of that copy second as the court asked it the speed  creation of their work and third we presented testimony or heard a declaration evidence from an expert architect that the typical iterative process that you would go through to design a building he found that in my client's files where there were a lot of attempts let's try this let's try that some many of them didn't work but with respect to having a copy of a plan that's not direct evidence a copy wouldn't be direct evidence of access access is that the probability yes that's a part of the influential process where you don't have direct so what i'm asking specifically about is in record of having the copy in your possession is part of the direct evidence and that's because once they have the copy their files show that they used it because their process of design step by step in the earliest drawings showed that they were working toward what our expert characterized as a preconceived solution to the design and they did it in a in a rapid manner so we under this court's holding in him kramer and also under the brocade communications case that we presented from the california district court where this identical evidence was held to be direct evidence of copying we contend that the records show direct evidence of copying and as the courts  the district courts summary judgment errors repeated themselves this evidence was never not just not credited and taken in favor of them the nonmoving it wasn't mentioned at all is your question because this is something i don't understand you say that because there is direct evidence of copying answer bracket that for a minute but assuming that's true that you don't need substantial similarity but i thought i mean even if there was direct even if someone conceded oh sure i copied like i didn't know what to make that day and i saw your skyscraper so i thought yes i'll do a skyscraper to copy the idea it doesn't matter if all you copied was an idea and you didn't copy sort of protected elements if there's no substantial similarity between  substantial similarity circumstantial evidence test but the copying that and we believe the way the jury should be instructed is the cut if you find that there was copying you still have to find that what was copied is itself protected will now in this case we think that the court erred one of its copyright errors was in doing what they did the district court called a desegregation analysis where the court said i have to break down the protected work into all of its comp parts to see if they themselves are protectable it he also look at it in the aggregate he did but we believe that that constituted stepping into the next phase of the similarity analysis which is intrinsic analysis  but in doing his disaggregation what judge ellis did and was he'd look at the architectural work and said well it's made up of features and elements and spaces and so i'm going to look at each one of those and see if it's individually protectable by definition they aren't in it in that way architectural works are no different than any other work of creative expression you couldn't have some element that was a window that is protected it's possible your honor we work is made up of unprotect will elements for example of why so that makes the principle that you have to have more than just unprotected elements the combinations why in a random have the question of the  me that it was just a fairly sensible and appropriate way to analyze the buildings the the work that's protected as an architectural work is the arrangement in composition of these unprotected elements but the approach that the district court took by desegregating and subtracting those elements if you did that to any copyrightable work you would never have a protective work just thought you just told me you might because you could have a window you might have do than what you would have judged on legislative history acknowledge that someone might have such an artistic decorative window that it might be protected under another category the pictorial graphic sculptural work but a window as a window a door is a door is a staple building compliment that the statute classified as a standard feature and those are not part of the protect doesn't look in your head pages and in this one book the pages were fantastic go oracle that the page when you turn to the page it unfolded and gave you a live action scene you might would say that's a different kind of page than you normally see al h it is a page i agree on i was just in that just a protection from claiming some right in a commonly used commonly design characteristic of a building if you have to you have where you there but by the way i thought that in doing that isn't that just would first see if there's some protection for you in an individual element of what we are our problem you think you had a protection in the individual elma no you are and we were trying to make that clear throughout this entirely clear about your argument regarding the expert reports aggression what's the sworn declaration to a file but what's the problem the problem is that the report itself is still hearsay deficiency which was cured then i don't know if we don't believe so because this is not like a business record were you present an affidavit or declaration that proves it up where the record can be shown to be and miscible as a record at trial this reporter none of the three reports should ever come into trial because they're always hearsay and so that's our objection  that was our object one of our direction so those reports we also objected to the internally they were based on incorrect legal principles and contained incorrect definitions but that they were just they were expert testimony on the extr and you objected initially to their vilified is that was what i was having a little trouble following your argument but we just believe that the that since the change in the rules in two thousand and ten it's very clear now that you have to put in question at least question that i had mediums to have on yours but but i thought one argument you may have others but one argument was that he should not have relied on the x person report period that is or are you don't deposition kind of remote there was some schedule issues on some depositions but i wouldn't that be sufficient you think because the report is still hearsay so you can't come in and offer the report you know if they had put way to say here's what i would say a trial is to do a declaration or an affidavit and now no question if they had prepared a declaration that said virtually the same things that he said in the report this eviden foundation objection we just believe that there is a substance and that report is correct your view is although it was corrected by that declaration that you think the court was wrong and the court allowed the opportunity to make the other side ask a series of a thousand questions and then great judgment as a matter of the law if nothing else changed it was just that that they should have to go through asking a thousand changed the evidence is what the evidence is and this time the expert would take that the expert would take the stand and the other side would just ask a thousand questions of him and her and he would answer basically every sentence certainly all the key material that mattered you say that it is an error on the part of the court not to go through that procedure over which the court would then grant judgment as a matter of law as i understand the question i think yes if you yes are this court has addressed over the last few years architectural works it's a very basic levels and in the charles ross builder case the court said the extrinsic intrinsic test it applies everything else wrong you say that we poor is disputed it is still disputed and even if they had offered it and that the substance of those statements in a correct form there were disputes and i'm i'm running out of time but there were disputes in the two experts our experts and their experts lot as to the there actually was no dispute that all of these expensive features were present in both buildings there were disputes as to the way that they were expressed and those the judge the district judge instead of identifying those disputed issues of material fact he weighed the evidence and he said if in fact i accept the defendant's experts and i'm going to adopt those experts and in many cases he quoted them verbatim in his opinion and in about half of those extrinsic the features that were discussed in the opinion there's no mention of plaintiff evidence and then for the other half what the court said was humphrey says this but i find the what the defense experts say to be more to be more important so i believe that undertone versus cutting the court stepped beyond the role of a district court and decided issues of disputed fact excepted the movement's evidence and not the nondefense evidence and in accepting the movement's evidence he actually accepted incorrect propositions of law which is what the first half of our preaches a very brief is about as the expert mr gresham had that his testimony is about way of his declaration is that signed on for a jury that there was a deposition take place but it didn't happen had that deposition going forward in all this question been asked that point it would all come in and would it and everything he said a deposition would economy and subject to some other objections we just chose not to take his deposition at that point my question my question is head he been deposed and everything he said at deposition would be available for something yes or yes  do take issue with some of the statements that mr zuma has made for example the evidence of disputes regarding the expression there is none we did take the depositions we took depositions of mr figured and mr humphries his principal and they admitted in their depositions we've given you those citations they're unfortunately extensive there's twenty thirty pages each where we went through the expression of each of these nine features and of the arrangement as a whole and what they said in their depositions they admitted they are different what they're arguing is that the idea the concept may be similar may be copied that's not good enough for copyright law this this issue of the khana between an idea and expression is rooted in the statute for architectural works it has to be embodied in a tangible medium of expression that's what gets protected not the idea and the statute goes on it says that it does i don't agree with that at all he absolutely should have done it and in fact this court has noted in other cases that if he had failed to do it and made the comparison on that basis he would have committed reversible error it is because some of those elements could be protectable that that is because the statute the supreme court and other panels of this court have all said what is protected is the expression not the ideas not the concepts so what you have to do is go through the argument i guess we hear most often is that the district court did too little and therefore i should when well the cost of it is recorded too much and i should i should otherwise well in copyright the statute and the supreme court precedent this could be a difficult issue if it was unclear where between that the generalized abstract idea and that specific expression you had to draw that line but it's not difficult in this case in copyright the statute says it's at the expression the supreme court thousands of examples of some of these other features you've got testimony from the ruth feature you don't think that it's called junior real problem and you think this well i think i think there might be similarities in terms of the concept sure they're both  cornices but in terms of the expression what gets protected look at the images we've provided you in the briefs they are very very different there's has this wedding cake structure with three separate corners as ours is much more simple much more plain in the a buildings in the aggregate because we're actually now you're are you did ask my opponent that i'd like to direct you to page eighty fifty four to eighty fifty nine judge ellis did in fact said set set aside all what he's done and what are now admitted to be standard individual features i have to look at it in the aggregate looking at it in the aggregate dick's pression is still different it is this whole thing of the whole key here for them was during the at the district court direct access with a dual core structure lobby with all the doors opening onto one lobby ours are little h shaped lobby that are narrow so you can't see your neighbors doors much greater privacy the expression of each and every one of these is different now let me come back another way to answer that question we also got admissions from mr humphries during his deposition that all of our unit plants all the floor plans for the different units or seventeen on each floor in ours and eleven on his he said oh well they swapped those david mid everyone of the residential units is different so all we're left with is that these nine features in the core they're all expressed differently for the same reasons judge ellis found when he went through looking at their experts coming in and saying well the concept the idea is similar that's not good enough for copyright you have to go all the way down to the expression let me give you an example from one of the cases we cited one of the cases we cite is a ninth circuit case where this idea expression dichotomy tester the extr intrinsic test really came from it was called funky films and we've cited in our brief it's got source for example you've got a funeral parlor it's the h b o show six feet under i never watched it i don't know if any of you did but it was accused of infringing this funk parlor was the prior existing work you know the funeral director it's a family funeral part of the father dies the sons inherit the business the near do well prodigal son comes back he has a love interest present it because i think it provides a good analysis of similarity and plot similarity in what the hollywood artist would call sends fer the the type of plot vehicles conceit if you would that you use that's that's available just i understand because i do write you look at these buildings they look somewhat similar but your point is well of course they look similar all residential high rises these days look something like this because so many of the elements are sort of standard and functional and so of course they're going to look like this they're going to be tall and we're going to have a lot of windows and so the things that make them similar are just the kind of standard design elements that i would see in any high rise building yes there are specific level that's where they're different that's the idea and ours ours are expressed differently you know when we took his deposition mr humphreys thought he was the first one to do two elevator cores with direct access we've presented to you evidence in this record and to him of thousands of examples this is a very popular design in florida where our architect worked for a dozen years that's where he learned of this so yes we are not contesting access he was given the picture and we gave him a declaration of what he thought about the picture nothing he said oh i already knew that through the dustbin because he was aware of things like harbor towers and thousands of other properties that have this dual core dual of vader's with direct access features and be it can be though and it may not be protective will probably not detect that a person can have what that person is an original idea but let me just you just don't realize that others have had that idea before it is possible but that's where the copyright law is very specific we have to have copied his expression not copied it we have copied and it's got to be not his idea his expression in defense of him thinking that he thought we don't win because of the fact that other people he has this prior art argument we don't win because other people had done it before we win because we didn't copy his expression we may have common ideas we all have trash chute we have mechanical rooms we have corridors you have to the fire code requires that we have escape staircases you have to have them but in each and every one of those features as well as the arrangement and composition as a whole ours is done differently and that's why there's no infringement that's why this this what appropriate to resolve this on summary judgment this court recognise that in the universal furniture the ninth circuit's recognise that in a number of cases the extrinsic component of the test you guys are not that is not subject to the normal rules of summary judgment because everything i've ever seen is quite frankly everything in every area some people  have a tougher time at times with it because there is gradations issues that's you know say but it does look a lot like mind you and somebody will say we're not really and so some people are kind of pointed out that congress could have been a little clearer here when they wrote the statute in terms of drilling it down to expression and some district courts for years got confused and that's why they had to decide feist the interventionist case which is an eleventh circuit case makes the same point that it can be very confusing and difficult for a jury to parse through these issues where they don't get it that they have to stick with expression and not be comparing concepts and ideas which is why the extrinsic component of the test for those circuits that use it as this circuit does is so critical and is appropriate for summary judgment we're not contesting that the intrinsic test should have been left to the jury and judge ellis did exactly that he said look i see this is something i shouldn't be deciding and he didn't he stopped when he looked at each of the individual components which we have admissions today were standard individual features not protectable and he went further and looked at the arrangement in composition as a whole of the of the design and concluded based on the evidence that was presented to him that they are different than the one thing mr zuma said that there is a dispute over direct evidence of copying it would like to address that very briefly there is not what has to be copied is protected elements yeah there was access we don't dispute that at all and yes there's commonality and concepts and ideas but what his experts offered is two things mr figured and mr humphreys gave us hours of deposition testimony in which they admitted in agonizing detail that these are different down to the level of expression they then come back at summary judgment and put in declarations saying oh they're the same at the level of the concept that's not good enough to generate a genuine disputed material fact they're experts they have other direct explorations they prefer to where they came in and said well we weren't aware that these were so commonly known well that's not reading our evidence would meet our evidence and challenge it is said well what yeah i went and looked at that building it doesn't have that feature not well gee i didn't know it had that feature so the evidence that was put forward does not generate a genuine issue how would you support the court clarke your honor my colleague miss peyton will address that issue on behalf of clark i'm addressing this to substantial similarity issues for all of the defendants that all the defendants except clark contest access clark contests access if they're if the court has any other questions i think i've covered what i wanted to say i would be happy to see the rest of the time to the panel unless you have questions very much th visited the building that clarke had been involved at all in the design process or that there was any shred of evidence that clarke had seen the floorplan so therefore the district court properly decided the access issue no humphrys didn't actually depose any clark representatives didn't try to take evidence on this point it merely rested on the idea that clark could be inferred to have access because it had a contractual relationship with northwestern and because it was involved in the project that inference is not evidence of actual copying by clarke and that's why the district court correctly decided this issue now at the appellate level they make a different argument as your honor saw from the briefing there's this concept of direct copying direct copying as a concept we used to talk about rip offs literal copy literal reproduction of the work and when you look at the cases that humphrey site they all support this idea when you make a copy of the protected work and you pass that copy even if somebody is downstream and they have no knowledge of that copy there are a direct infringe r but those are not the facts of this case there is no evidence that a grant park design was ever provided to clark nor is there evidence that the two park press design is an exact replica or a very close reproduction of the grant park design one only has to look at the judges appendix to see that plus as mr coin pointed out we have many many admissions during the depositions of humphrey principle as well as of their expert that the aspects that they identify as the individual aspects that are copied are not protected there's no issue effect here and in fact at the appellate level in their briefing they haven't identified into it individual facts that demonstrate that there are similarities in expression so now we're left with the question of what to do with the direct copy they want you to read the actual copying requirement out of feist that is not appropriate we can't ignore access and we can't ignore substantial similarity in this case and they have shown neither in this theory that they argue for the first time an appeal the direct access to the original work cannot be shown by merely demonstrating that clark had access to the accused and fringing design again that is a concept for a rip off case that is a concept where the exact original work or one with very slight variations have been given to the builder so we're not arguing that clarke had to have knowledge we're arguing they're applying the wrong test now with respect to the admissibility of gresham's report that was a penrose report they are making the argument that the substance of the report is not admissible because it's provided in an expert report that was then followed by a declaration affirming the contents they're making the wrong argument under rule fifty six it's a question about the capability of getting the evidence into the record at trial if we happen to go there mr gresham will show up penrose will not be submitting the expert report nor i hope would humphrys be submitting their declarations in fact under their theory their declaration stuff or from the same in the contents of mr gresham's report provide the substance of his analysis it is based on an a comparison of the two designs humphrey's has no real argument that the substance of the declaration is not capable of being admitted into evidence and that's really the rule fifty six issue we're dealing with your honor or argument regarding clarke is that we believe the evidence is that the plans drawings were produced by are in for entering into make a building to build a building i guess your contention use would be guilty but that requires a threshold inferentially that's actually the ultimate question to be determined but our point your honor and it does depend on the the design being infringing but they are building a copy of a building from that infringing design that's why we call it direct the what but one of the harms of the district court's opinion is it creates a road ma for defendant for people who want to entrench to create an infringing copy and then give it to somebody else who doesn't have access to actually produce it that's that's the harm of that theory and it that's why it's interact with the case  w case law looks at looks at situations where an identical copy is passed down the line to the developer who may not have had who may or may not have been aware that it was i going to be a copyright for it in fact it doesn't matter whether they're aware but if they're making if they're making that copy if it's virtually identical copy that's one thing but that's way you can say as a matter of law that they cannot be substantially similar compare that to the items that judge ellis pointed out were he believed evidence that the humphrey's design was not original which are found in the gresham report it joint appendix thirty five seventy three and thirty five seventy four i would just suggest of the court that if if these floor plans were close enough for j that the humphreys design can't be original then this one is far far closer and we believe that that alone is an indication that there is a question of disputed material fact the the difference here in the these elements both present in the two designs if they're in the same ballpark then we go to the intrinsic test to say do we decide whether one so close that one was copied from the other the reason we say that there is a disputed issue in the expert testimony the judge that the district court should not have resolved on his own is when you look at the declaration of mr fired he doesn't just also refers to how they are related to each other this design didn't just involve a bunch of discrete elements in this court's decision in teller versus sales the court said correctly you can't prove similarity with a list of unrelated similarities we believe that the converse also ought to be true most it's the combination of the all of the elevator lobbies are connected by a quarter that none of the units break off of all the units open into that those elevator lobbies and that's what our clients whose declarations are in the record the mr hot and mr lux said they've never seen this before and they spent their whole lives in this kind of construction and development and that combination in that way is what we believe while i was there the elevator lobbies all of the units open on to those lobbies no unit opens onto the hallway and so when you go to your home you don't feel like you're walking down the the hallway of a hotel and that's what we want our client was able to put that together in a way that worked as a building and that arrangement spaces is the architectural work that's protected but we just we believe in elevator lobby that's the thing it's how the elevator lobbies are arranged with all of the other elements like a nomenclature problem for me i thought elevator lobby meant you don't feel like you're walking down a hotel corridor or your door opens into an elevator lobby well in that that's true that the elevator if you go to the typical long wall hallway hotel you you still step into a lobby but then the lobby connects to a hallway that goes by that is you because i know you listen i know this is really just a definition question for me sorry your listeners nine elements and one of them is elevator lobby but i thought that sort of that phrase as you use one of them is that when you step out of an elevator you don't fall into open air there's something it's into the elements because there's a lobbies are connected by a corridor that the units don't open onto and then that's in another element where the units open directly into an elevator lobby