they had written called red in august of two thousand and their representative mr later submitted another screenplay written by mr martinez and mr alfred to mr taylor screenplay was in title pirates of the caribbean precisely because mr taylor and hold the plane as the disney wanted to create a film on a ride that they had no treatment or  of the major mistakes that the court of appeals made in this case i mean here is your court made in this case was to apply a test that in essence cluett elements that should so you can say is a matter of law there is no infringement here i mean that's what i have a hard time figuring out i know that you are so i think in general what you want to is whether even recognize  into that references treasure island peter pan and all these different stories about that feature pirates in a way to try to sort of identify what is different about there is and i thought well we had some questions from the planets have to have any comfort about whether this is the common element in narrative because what planck's is generally pointing to hear a lot of different ideas right the idea for example of supernatural p fact that idea is not itself protected by copyright law because we want to preserve you know folks supernatural pirates for the next pirate movie we wanted to be part of the repository of tools available to every screenwriter so we have to look at how  that element of that idea is expressed in both works and i think that's where you see these two works are not at all simple right in looking at how those ideas are expressed here we have the supernatural  can analyze them and make that comparison nothing is going to change but the two work there are always going to be the same to work the court can review impact on that list by suggesting there should never be a trial absolutely understand the when you're applying to extrinsic evidence test here as we are here the obligation of the court to look at arrangement unprotected by element which is much more easily understood in like a piece of music or a pattern if fabric a combination of protect element can itself be protectable but the district court doesn't have to go searching for whether there that has to be replicated in the potently infringing work we really don't have a pattern here your honour's just quietly asked my friend for one i think he pointed to several pages of the report i don't think we have an actual  definitely don't want that pattern by the way to be something that sort of inherent in any story the prince's idea of story architecture but i heard him mention that there's a beginning that they find the map that they go find the treasure according to not of course they're going to find that before you find the treasure right you know you want to be a collection that we need to point to rather a collection of unprotected all elements that is in itself original and that overlaps with our work and i would say that they have not done either here because they really similarity of issues as we have here that's a point at which the procedural posture troubles me i have no gender there are plenty cases where it's appropriate i just rolled with that here given the similarities that existed  t lends itself to real twelve disposition i don't i don't think that there are similarities that give rise to a back kind of question and i think this is one of those cases i don't see that the polls say i think this is one of those cases  and that there's no need to you know i understand our case law allows us to say on a twelve b six it is a matter of law there is no substantial similarity i understand our case law says  you get to be very careful when you do they've got to be sure because what you're saying is there's no plausible claim there's no plausible basis for the alleged infringement there would be infringement which is which from my perspective as a judge i don't find that to some in some instances to be a difficult call but is an easier kahlo you know in as a kid in an instance like this conclusions so one of the things that we raised in our briefs was the extent that they're arguing that things are unprotected because they're fair they have not there's not a proper record before the court  literary works get protection because you can have the same impact x with something that's similar but not identical supernatural pirates for example an artwork that is close enough to the supernatural pirates in the disney work to where the distinction the differences are should be discounted because of the protection that we're entitled to under the law in terms of twelve  there being a lot of similarities we actually have a chart in our library where we compare not only met to the present case but also multiple other cases as well i