it's been said that substantial similarity in is the vegas standard in law today lots of things could be said to be substantially similar to other things every country music song could be said to be substantially similar to every other country music song same chord progressions same twining same themes started off country she did ok but everything he's got stuff and i don't know i don't go there i think every piece of arabesque jewelry could be said to be substantially end up in a situation where we're not promoting the purposes of the copyright act where we're acting against those purposes already me ask you what is your strongest case the thirty for the proposition that brief and i don't have them at the top of my head where there are summary judgments granted and there are decisions made regularly by the chords that this case just doesn't measure up right but that you meant to statement specifically that because the substantial similarity standard is felt they have to be extra vigilant in their gatekeeping function and that's a pretty startling statement that i discerned from the case that already well if go ahead if you have more to respond i frankly felt like your argument was a little different it seemed to me that the district court has to determine i said to myself we make that by going to mattel if there are a few ways to express the idea contained in the material then the standard is virtually identical if there are numerous ways then the standard is substantially similar so then it came to be are there thousands of ways to do what we have to do here or is it a minimum amount of voice so should the district court rather than of giving rather than giving a substantially similar standard should the district court of said no it's got to be virtually identical so my question then to you is why should it be virtually identical i think that the mattel case is the key in the in particular the red bouncing ball and white kansas the on so then we go to what are the elements we're looking at here and i think the inquiry has to then go with what sophia and chloe told us are the elements and by told us i mean told the copyright office and which is a public document so i told the public well so that all the public was we don't necessarily have protectable elements we have a protectable way of assembling them as i understand it exactly and then if that's the way are we saying there are many ways to design this or are there are thousands of ways and if you've only got a hand assemble and an idea of a boodler buda which have to be in a teardrop if you will shape then i said to myself why does this say there are thousands of ways why doesn't it say there are many ways and why did the district court give the instruction the way they did so i'm asking you why is it just a few ways rather than a thousand ways well there are three very specific elements that they say were combined and those are the he in the negative space and teardrop shape as a whole so yes so i think that if we look to any erasing that would combine those three elements making the earring not have a choice except to make it in the teardrop shape no but what the that means there are other ways to make the buddha earring without encompassing the teardrop shape right i don't think so because i mean i think her question is very important because it was my understanding that there was a hand a symbol and an idea of a boodle of a buddha but it had to be in a teardrop shape that's my understanding is well that it has they were not protected bull as they were they were just used in the general but by putting them in this shape it made them protect that and what they said was sufficient although minimal amount of original and original and creative sculptural authorship in the treatment and configuration so my worry was misunderstood the question but to it to be similar whether substantially similar or virtually identical to their earring the sophia and chloe hearing one would have to use the teardrop shape that wasn't the question i was asking you i was asking if there is any way to make a buddha shape your ring with out the two drop because if there are many ways to do it then there's substantial similarity that's why i was asking the question if you can ok i don't i don't think there are and i'm looking at page two of my brief because it has the pictures the fact because you did it that way doesn't mean that you have but yeah the buddha's head would be this narrow part up at the top and they were really what they did and if one reads a kid's shape on the other side and an extended his shape at the head so they used for brackets or kiss shapes in those four brackets you can see the buddha when i look at make a little fatter buddha buddha and then it disappears well i don't see the buddha in the one on the left and there certainly aren't four brackets so two with the elements in my view are missing well it's seems to me that in the buddha kids there are two brackets on each side but in the toledo statement there's a crescent moon between two dots that's right it seems to me that they share a teardrop shape and i don't think anybody's challenging that right so what we're really talking about is does it contain the idea of the buddha and then the buddha case buddha kissed the negative space in the earring creates the outline of the buddha and yours and as i understand it you're suggesting in which i agreed with honor that toledo statement there's no such outline that's what i see when i look at it although i suppose at different minds in imaginations can vary then it's judgment for the defendant well just a minute then at that point if you go to the extrinsic test and you find what you have is that that point the district court is supposed to give the instructions which are virtually identical that's true unless the district court exercises what i see running through these cases which is a gatekeeping function and says it's just not possible to meet the standard here well but we're we don't have in front of us any motion for summary judgment we but there is a motion for a judgment ok so there's a motion for judgment as a matter of law yes what's my standard of review for that in our view it's a matter it's a dyno vote standard of review i understand you're saying it's  noble but in general when i do a motion as a matter of law i'm reviewing the jury's verdict and i'm trying to figure out if there's any evidence to sustain the verdict right yes but yet when i give this this is the thing that makes this case so hard for me when i give this to the jury i give it to them under an intrinsic test which is not the extrinsic test and i cannot overturn their intrinsic test determination well the only thing i can do is look again at  also looks at is whether as a matter of law under the facts as we know them this design by brighton could be said well the problem that you've got here is that your arguing for a did novo review in other words you're arguing for a summary judgment review and the evidence has already been given to the jury so if i'm doing a motion as a judgment of law at that point it seems to me i'm supposed to be determining whether there's any evidence to sustain what the jury did but that's under an intrinsic test because they were not they are not making the extrinsic test yes and the way i see it the cord still had the district court had this gate keeping function even after the jury had already received the evidence and we made a renewed judgment for a matter of law that at that point you know only entitle to relief if the jury could only come to one conclusion and i think conclusion opposite that it reached that that's a pretty stringent standard to me under the extrinsic test i think there is only one conclusion that i hear but all what you're really suggesting to me is that on emotion as a judgement of law i'm back to the extrinsic test even though the jury has already made the determination on an intrinsic test and you have a good case for that if you do you found one i don't  as brighton opened its opening brief in the copyright act congress sought to benefit the public by encouraging or discreet of expression natalie sherman was such a creative artist in her boots because jewelry design was  creative expression well just a minute let's look at what the copyright office said the copyright office said they had a symbol for word kiss is not protect the ball idea of the buddha all this sufficient all minimal which is what the copyright office said then comes back to hit us now have this point nobody worries about the teardrop contain all of the elements so when this one does isn't even protectable unless you've got the three elements in a given way i'm trying to figure out how there is any infringement well the combination of on protectable elements can itself be original and protectable yes when it's an it when it's a certain way right and then the copyright office said it's got to be the treatment and configuration right and so therefore i'm back to the same question when there are too unpredictable designs that are put together in a similar vashon there is a copyright problem but when there are two on protectable designs that are not put together in a similar fashion there is no infringement well these two design well first of all missouri and design is protected by the copyright office natives collins only it's only protectable it's in the treatment and configuration she put it in writing and the district court and the jury decided that brightens toledo statement hearing was in that same configuration well just a minute let's think about that  i don't see how the toledo statement can vine's all these elements if you use the henna symbol in the toledo statement airing it's not used in a similar manner to the well i think if you look at the head i mean if you look at the buddha kiss there are two brackets on each side if you took a look at the toledo statement it's a crescent moon between two dots and not the similar and those are all arguments that were made to the jury those were all arguments that the jury can well i'm not worried about whether they were made to the jury i'm worried about was the right instruction given to the jury because if you don't meet the extrinsic test then at that point you've got to prove more than substantial similarity you've got to prove furtive coal are virtual identical standard and my worry is that the use of the symbol in the previous statement was not right and not only that the toledo statement doesn't contain the idea of the buddha well the jury thought that it did well just a minute the judge has to look at this this is a decision the judge has to make if i look at the put the buddha can't there's a negative space i look right at a negative space in the airing in the to lead a statement there's no such outline well i think and i believe mr ross said different minds and imagines imaginations can vary so i think a reasonable  well sort of or even a could see that buddhists say in that so given what the copyrights office said about how you're going to get the patent it seems to me that i have to focus very carefully on the use of unpredicted on protectable stuff that they're in a similar configuration in order to get past it trance of test and frankly it seems to me if you don't get past  test there's no way that jury well i should send it back and see if that jury should say it's virtually identical and i guess i would not consent to virtually identical so the key well if you're not go contend it's virtually identical then if i don't think that district court gave the right jury instructions you lose i think you're right and i don't think we lose and here's why as the court observed as your honor observed mattel is the gu case yes mattel instructs us on when virtual identity is a standard and when substantial similarity is the standard right and the test is whether an idea can be expressed in many different ways yes the idea of a bouncy red ball on a black canvas can only be expressed in a few ways where the idea of a zombie movie can be expressed in many many different ways the idea of a teardrop shape hearing can be expressed in in the language of men i'm having a tough time understanding why i ask him the same question if seems to me there's thousands of ways to design a are nearing but they're not a lot of ways to design a teardrop which is shaped with the shape of a buddha and a hand the symbol for the word kiss well the idea and this is how brighton describes the idea in its brief writing describes the idea here that is an protect the ball as a teardrop shape earring or alternately elsewhere his brief writing describes the idea as a moroccan style teardrop shaped era so that's the idea and so the question is whether that idea can be expressed in many different ways and clearly the answer is yes you can have it's not clear it's not clear to me you know if i mean i'm having a tough time understanding the only way that i can get to this understanding is if i go back to what the district court was saying about this and he was applying the extrinsic test and i don't think he applied it right but i think we get past that th ball well i understand and let me respond this way mattel teaches that you have to first focus on the idea there's only because you can't copyright an idea so we have to articulate what the idea behind this piece is not what elements are in it but what the idea is and the idea again is a teardrop shaped earring or a moroccan style to your group's repairing and if you moroccan style teardrop shape bearing on the google image sure search you're going to find thousands and thousands of wildly different expressions of that idea not of a tear of the teardrop itself absolutely different sizes different widths different textures and using and using a hand a symbol for the word cast so that they can negatively show the shape of the buddha well you're not going to find a lot of different in fact i would submit that you're not going to find any other depiction of buddha in the negative space that itself was a unique expressive way of conveying buddha in a teardrop shaped earring is itself original and protective of the district court obviously thought so and i think it's also important to keep in mind that the jury was instructed that only the expressive original elements of plaintiff's work were protected the jury was instructed that common shapes were not protected will it tell me what the jury was struck it is helpful only if you can tell me why they can get away was stanch least similar instead of virtually identical because there are innumerable ways to express the idea of a moroccan style teardrop shaped earring that is why that is the idea behind this piece that's how brighton itself describes the idea behind this piece that's how the idea was described in trial so that being the idea of the question is whether there are many different ways to express that idea many different expressive choices they can be made and sophie and chloe made all of these expressive choices with the size of the piece the width of the outline the proportion between the bottom segment the middle segment and the top segment the angles out of which the bracket on the bottom radiated the angles between the interim brackets and all of those were individual expressive choices and the district court properly instructed the jury that in determining substantial similarity it could not base a finding of infringement based on similarities between the unprotected stuff between the common shape between just the fact that both of them had brackets for example so i think the district court was correct in applying the extensive test first and instructing the jury and if the court looks at the instructions for the jury i think the jury was again instructed not to consider similarities between the unprotected elements which include shapes ideas and things like that and i think your honor lets me move them to the attorney's fees i got your argument goes see if i really agree with them but i got your argument let's move to eternity or move to the attorney's fees attorney fees are awarded a prevailing party only as a matter of the court's discretion yes in other words even though there's a prevailing party the court doesn't have to give many attorneys fees right though here the court says the prevailing party seems like sophia received a sizable jury award and it seems like brighton invalidated many copyrights related to the kiss design did not infringe on the kiss bangles as a result we're going to take the smith v jackson factors and i'll look through those and there's nobody getting fees how is that not a how is that an abuse in several ways first of all the district court here in applying the law in determining that there was no prevailing party to test for well just a minute you agree sylvia got the sizable jury award i know you'd agree with that but you also have to agree brighton invalidated many of the patents right and what had and they were told they did not infringe on the kiss bangle which they believe and therefore in determining whether toward attorneys one can look at degree of success one we could look at frivolousness one could look at motivation objective boundaries less need to advance considerations of compensation deterrents which the court did and said no and now i'm on an abuse of discretion well first you start with whether sophia and chloe was the prevailing party and there's well established united states supreme court law that tells us how you determine there was a prevailing party a judgment will constitute relief for the purpose of determining a prevailing party or you tell me the case that says all i look at is the final result no you start there though start tell me tell me the case and says that's where i am i mean i have a tough time seeing why the district court was not correct well i'm going to address the discretionary factors which you get to after you first determine whether the who is the prevailing party so for the purpose of deciding who the prevailing party is look at farrar vs ha ha b which is one thirteen supreme court five sixty six what the court the says is that in order to be the prevailing party the plaintiff must secure some benefit that benefits him at the time of the general judgment or settlement and this is the important part it must affect the behavior of the two parties to the litigation in a way that benefits him going into trial is exactly what you bet your behavior has changed because now you don't have a copyright relating to the kids design and you didn't infringe on the kid's bangle but at the time of trial brighton was selling those things writing was selling those products brighton refused to recognize our copyrights so brighton's behavior toward us which is what the united states supreme court says matters brighton's behavior toward sophie and chloe didn't change on those products because they provide they did prevail in invalidating that copyright but they had already decided that legal but that's just it they retained the right their behavior wasn't affected by the judgment as yours without us know because the case was over for us and the district court i think erred in considering how our behavior toward other parties might be impacted and that's not the test the test is how the behavior of these two parties views of each other is impacted by the judgment there were five accused proud of me ask your suppose you were just you matter of law they could not be the prevailing professional in party here in this case oh no i see what you're saying i think that's right i think if they had agreed to stop selling the products they are bound to assume let's assume that the only only copyrights that were at issue in the case with the ones on which they prevailed and there was no no we take the earring out of the case with they have been the prevailing party the judgement in that case would not have altered their behavior toward sophia and chloe so they would not have been the prevailing party if you even though you lost on every claim  well that would obviously be a tough result to swallow exactly i agree with you yes so i do but i don't see i don't see changes just because you want to and one of the well there are there are there are a host of cases with prevailing party fee statutes like in the copyright act and in the copyright act where they say that if the plaintiff secures a judgment in his favor even if it's nominal they are the prevailing power and that's that's doesn't disputes that but the defendant we agree that if this this hearing were not the case they would be a prevailing party because they have prevailed on all of the claims in which you sued them it doesn't make any sense to me because you want to claim that the amount of prevailing party anymore well we got a judgment in our favor on the stand and a finding of willful infringement in a case where they denied everything they denied access they denied that they looked at our products they denied that our products had anything to do with their i know they swore under oath i don't know what that has to do with this particular well because it's one of the most important factors according to kurt sang the last united states supreme court on the award of attorney's fees and the copyright act the objective reasonable ness of the losing parties position where you learned on to and you lost on twelve twelve separate claims were found to be totally without merit we lost  as to four out of the five brighton products that were at issue ok i can see that of course i have to concede that but here's here's the important point brighton's factual defense to this case was  brighton's factual defense to this case was based on false testimony it was not objectively reasonable this would have been a very different case if i'm right in the head so the most jury trials juries believe would disbelieve witnesses and  they find in favor of one party they may have they may have this believe the witnesses and i think the district court erred clearly in finding that brightens litigation possession position was objective lee reasonable and obviously was as to the invalidity of the kiss copyrights but it's factual defense to the case was false it was based on false testimony it wasn't objectively reasonable and i think that's where the district court abused its discretion i think the district court also misapplied the law determining who the prevailing party is in the first instance and the effect of that was to work in justice again sophie and chloe curbishley one question i'm just curious they three say in the brief that sophia and quote doesn't make much money from this that that the money that they make is sort of suing people for for copyright infringement i think it's not pitch fourteen or a brief th life and its business was devastated when brighton released this line of knockoffs we respect the jury's conclusion that the quatro copyrights were invalid were not appealing that we respect the jury's conclusion that the favor in a case where brighton denied any liability whatsoever but we only want one out of five accused products we should get a fifth of the fees or a third of the fee since this hearing constituted about yes thank you i think that brightens position certainly wise objective lee reasonable in all respects we turned out to be absolutely correct about ten copyrights being not valid because these were common shapes and designs the eleventh we turned out to be right in that the jury found no infringement and that leaves the two toledo copyrights which which based on our view of this and these two earrings we concluded that this couldn't possibly in french particularly when one takes into account what they said t copyright office comprise very design i think if we were strolling through the bizarre you know you you it is not important for you got to have a legal theory that's true and therefore and therefore we should have prevailed on the toledo hearing as well and i think that makes our didn't appeal that what you appealed to the jury instructions and the motion for judgment was standing the verdict judgment motion for law yeah a motion for judgment as a matter of law and as i view it that does