no reasonable juror can find substantial similarities in the ideas in the expression here in this case the pelleas have conceded a high degree of access cordingley under the circuits inverse ratio gave the impression of substantial similarity he also he also compared the melodies and stated they were a complex structure as a whole and the concrete elements he broke the script and the same thing was with regard to music you know he has to analyze look at all the notes but he uses a spanking and experience as an expert to call what is in his opinion the basic melody of the two songs because  testified these are highly embellished vocal styles and there's no sheet music so he had to listen to the songs and determine what in his opinion were the concrete elements of the melody so continue  as i said tribal issues in the tree of fact about it the court also erred in looking the music on a measure by measure now assessed without any context of the whole of the courses for example the court analyzed measures two three four and eight separately and the court made its own factual terminations and those measures were not substantially similar based on its own methods without any evidence before and contradicting dr walser testimony measures two and three but dr walser looked at the entire whole of the melody and determined his deposition testimony is declaration supports this is that the whole melody starts with measure one if it is resolved by the second minister proceeds in the third measure similarity the fourth measure even though it's not different goes back to the fifth you have a fourth measures different goes back to the fifth measure sixth seventh and eighth and you have a complex structure and he determined that measures one in five on a seems a fair analysis which i'll talk about a little bit and then compare measures two three four six seven and eight as the circuit has ruled the combination of even an unprotected element elements are dissection of the constituent parts of the works here the court look at the court by its own order look at the melody but it dissected the melody in three measures it leads to an absurd result because in looking at literary works courts don't look at a chapter by chapter sentence by sentence whereby work so i believe that there is a demarcation between some parts that the court m a compare the four core courses as i said the court also improperly weigh dr walters testimony they rejected his testimonies out of hand as subjective and the court analyzed the notes dr walser excuse me analyzed and noticed and he didn't analyze the pitch numbers in his declaration and in his reports dr walser criticizes you now says the pitcher numbers without reference to the notes they mean and the courts employed the pitch number analysis the pitch sequence analysis really without any authority and acted subjectively in that regard you know little or no literary work though it was really no expert testimony and testimony to counter d clearly in cochran for instance we don't always have virtual identity and under the inverse ratio rule the court seems to criticize dr walser not look at all the notes because the court and looking at all the pitch numbers seems to determine that they're not exactly the thing because they're completely different generic styles different time signatures different measures and stuff but going back to your honor's question about for he's a jolly good fellow we contend that the district court buried by not even listening to the s  if the court chooses to look at some point that's what professor walser did in his report you may note that exeter records zero zero zero one eight six i think pitch but hat you have to have the time values and indeed that is fundamental problem with professor walters analysis nowhere in his report did he ever  address the issue of the time values of the nose the risen patterns of the nose and in the reply brief and in the opening brief plaintiff's despite the fact that that is a fundamental issue have skipped over that matter why is it important because as we went through the measures and his deposition one by one those that we were comparing for substantial similarity he acknowledge a handful of the notes ignore the rest as if they didn't exist and with respect to those that he looked at oftentimes only two of several stated that these gave an overall impression of similarity and impression is similar i asked him when you talk about impression of similarity professor waltzer are you talking about your impression or the impression of the average man on the street and he acknowledged both he was talking about how he believed to notes for getting rhythm would cause the average person to perceive the melody line that is spot on a matter of the intrinsic test tell maybe that for example if the notes are pure or an imitation that wouldn't be the case what i mean are imitation if you look at a measure with six looks significantly different and different when you compare measure to you might not mind being on the identical melody line right i've looked i don't disagree that that if you had something it was pure argumentation it might be disregarded but i don't see anything that where where professor walter north of the district court explained that something was our mentation what he did was take the nose of the melody line if you mean ornamentation where a singer sings a trill and  accompanied each each of those syllables that's what forms malady i don't believe that there's anything that reflects that he was taking decorative notes notes of the background singers notes that were trilled notes that were slurred he took the notes that were spot on and then ignored time value rhythm all together just that well i believe that for example two of these notes in the third measure using a good example give an impression of similarity with no despite the fact that he acknowledged that when you took the notes of that measure and compare them they were very different and when you took the rhythm patterns they to reach the conclusion that the district court did you have to reach the conclusion that the methodology used by dr walser is wrong as a matter of law is not basically where we got into that is correct and that is difficult at th that is incorrect as a matter a law well i will acknowledge that we're we're in in new territory however in the in the objective test where this court has time and time again the methodology is analytic dissection and comparison of the concrete elements i think that that means that you're supposed to look at it analyze and compare all of the concrete elements not ignore some of them and i think really mean the section by measure though i'm sorry doesn't really mean defection i mean does that mean measured by measure well your hon saying but i don't understand is where you're only comparing sensually eight measures of music how you look at the whole without looking at the measures the measures and i mean i appreciate what you're saying  are in a position of having to determine whether a test should be a new test should be developed or developing a new test but here here you do have professor walser i don't mean to repeat myself using a measure by measure analysis he's their expert he's the person they called upon that's what he did and i don't i don't see how it's inappropriate i'm are i suppose if you if if you say well let's forget measure by measure let's look at all of the notes other than the first and fifth measures let's look at all of them and and and line them up you're see how even if you say using a measure by measure analysis it's not the proper way that gets that leads to a different conclusion because when one put it another way you read the district co disagree with you i don't think a district judge has to apply its own expertise but i think the district judge was looking at the admissions made by the expert at this i'm very familiar with that but we have a highly skilled singer unlike your clients who use a substantial amount of ornamentation if you just take the notes on a page sheet music that's going to result in it and it could well result i'm not saying this is the case  i'm not arguing with you i'm just trying to give you some of our concerns youth and well my concerns you can kind of respond to i'm doing the best i can for the the ornamentation are i mean i i really am your as you know that's the style used by by the bye bye mariah carey and she does trill knows and she does slide in those but if you look at professor wal station put it down on sheet music then compared it analytically through just a purely number analysis you come up with a substantially different looking measure although for the same work that's my only point i  that point assuming i think the issue is not whether the district court's approach was correct the question is was professor wal approach and his admissions sufficient to raise a question of fact i think that's what the focus is and if it's undisputed we see he looked at only some of those i can't stress this enough he  rhythm altogether it's just it's you don't see anything about quarter notes half notes he skipped that because it didn't work with what he was trying to do he was trying he was working backward he was saying what impresses the man on the street what impresses the man on the street is a stress note here and doing it if you measure by measure because that's what he did is these two notes here that's what creates to use his words the overall impression of similarity which i don't have to repeat myself here where as i view it has placed him squarely within the boundaries of the interest because of cheney which is not protected by copyright because of tempo which is not protected by copper temple's very different than rhythm of course temple is just not necessarily experimental so there's that may create an impression of similarity but gatekeeper to make sure that at least as i view this law on the surface to make sure that that juries aren't well i don't know how to say that i don't make mistakes by looking at at at material that for example isn't protected in a song that for example the with the issue of filtering that's one of the functions of of the of the courts to filter out that which is unprotected and that's and that's not just in literary cases the courts of make clear it's and it's in every hine of case including music cases in the smith vs jackson case cited within the last five years by the ninth circuit court of appeals by you by by your brother now then i want to i will in the few minutes i have left i have about a minute and a half i want to look at that issue of the first measure your honor you the fair i can't give you a literal translation this court has in smith evers jackson used the word commonplace but i don't think you have to reach towns to fair to decide that that first measure is not protected and i'm to tell you why i'm firmly of that opinion the issue of lack of originality if something is not original it's filtered out because it's not protected no question about that case after case in the circuit now what makes what what resulted in the lack of originality accessed by the writers and substantial similarity now then on the issue of ac to the writers of the plainest songs have access to for he's a jolly good fellow that was never contested in the opening brief or in the district court nor could it be reasonably contested the plaintiffs conceded in the response to undisputed facts that for he's a jolly good fellow is very well known in american society that's a quote they conceded that fact they have to and professor walser testify  it was unlikely in his view as a professor of american music that the that the plaintiff riders were in for milieu with access it was a samples we don't have to prove we didn't have to prove that the similar one of the excuse me was more similar to for he's a jolly good fellow than for he's then then the first measure of one of those love songs was to thank god i found you and they say that thank god i found you and want to substantially similar there's no arguing they don't have an argument all they come back to again and again when you get to those first measures and substantial similarity i'm talking about one of those love songs and for his it's all you fellas the rest of the songs are different there's  a lot of stuff about the rest of the song but when you look at the first measures and by the way they make some point about the pickups being different if you read professor walters testimony where they cite to it he says just the opposite of what they say he says ignore the pickups they don't count and he acknowledged that that these two measures were substantially similar so you've got access and you've got substantial similarity and that results as a matter of law i mean they've acknowledged it as a matter of law and that results in lack of originality so you don't i mean i think science affairs a perfectly good  you have any point you want to quickly make before saying to your i actually i think i'd be i'd be wasting your time to try and come up with a wrap up since i think in the in the course of answering your questions and i appreciate strength of your pasar and it seems to me as i mentioned i want you to have a chance to address it is that when you finish with dr walters testimony at the end it does appear as though he's making a subjective analysis rather then using the object  being completely objective in his own in his own point of view necessarily involves some subjective listening to the song and determining from pulling out of thin air what music is and putting it for comparison but he's being objective  nevertheless there's really been no evidence presented that he's been subjective i mean the court has only looked just record only look at the fact that all the notes were written down and he didn't necessarily compare each of the notes but he did explain that there  record to support counsel's argument that you look at pitch series versus pitch emphasis and dr walser is explaining that's musicological not sound in terms of you know once again i person measure is not unusual but yet again even if none of the patterns is remarkably unusual in of itself the fact that both these works contain all the similarities including melanie pitch rhythm temp subjective view in reviewing the songs and didn't analyze it under the extrinsic test also the court must assume the truth of all of our evidence and the district court fell in error in rejecting the evidence presented our happiness presented by not consider a declaration making findings on