honor good morning this case is about planners but not just any planners it is about the o g of colorful creative crafting planners the best in class that transcending life planner that was designed by aaron condon now the district court committed several reversible errors when it granted summary judgment to craft smith and michael stores on both of easy designs infringement claims today argument will focus on three main issues st that the life plan are compilation when viewed as a whole is protected will subject matter under the copyright act as a literary work with graphical elements nd at the district court erred in granting summary judgment on substantial similarity between a life plan or compilation and the recollections planner in two ways st by applying the wrong standard and then by comparing the wrong elements and finally that the district court erred when granting summary judgment on secondary meaning for the life plan or trade dress based on improper out of circuit precedent and in the face of compelling evidence of an intent to benefit from the life planners reputation and goodwill as well as other evidence of secondary meaning and in the face of material disputes of fact regarding the meaning of that intent evidence turning to the st question is whether the life planner is protected will subject matter under the copyright act first i'd like to ground our discussion by briefly describing the actual copyrighted work at issue here this compilation comprises all of the calendars information data text artwork and graphics as a whole that has been selected coordinated in a range within the life plan importantly it is not merely a subset of these elements the copyrighted work in this case is not limited solely to the material that was actually copied by craftsman and michaels that is not how we define or analyze copyrighted works for purposes of satisfying to ability question and the district court committed a fatal error when it chose to proceed in that manner nonetheless the life for compilation is plainly a literary work like all literary works it contains textual matter data and information it contains numbers true it also contains graphical artistic elements that have been selected co ordinated in arranged along with those literary elements but there's nothing novel or remarkable about that it's like other types of collective work such as newspapers or encyclopedias where the preexisting materials and date and they consist of both literary and visual authorship but presence of multiple forms of authorship does not render it an protectable this conclusion is entirely consistent with what the  all of those compilations had previously been registered by the copyright office so there's no question as to whether or not the copyright office itself has been presented with planners like this and has deemed them for technical subject matter  that we take a step back and just consider copyright law as a concept the running into in the case copyright doesn't addressed yes your honor we obviously i don't dispute that it is just the expression of the ideas that is protectable under copyright law but the important thing to focus on this case is what expression protected and it is those creative decisions about what to include where to include it and how to include it in this plan or and what was taken here was a wide swath of those same creative decisions it's not the idea that we're disputing it's the exact way that idea has been executed so to speak they selected the same monthly and weekly calendar formats and that's a very abstract way of saying they picked the same two page calendar format with the same size border at the top the sane squares the same columns on the side in the bottom and they implied the same sort of color formatting the evidence shows that they actually copied exactly the format for the monthly calendar and for the weekly calendars the measurements lined up exactly so no because the subject matter the actual data the actual meting sort of preexisting material so to speak if that's what we're talking about if we're using that as a as a collective work analogy simple schemes as visual works and even the copyright office acknowledges that once there is a selection and arrangement of particular elements within a certain shall we say format cutting of those particular elements arranged in the same way and coordinated with the same other features that is where the expression lies and that is where the infringement lies so in the analogy to say the the women golfers versus the male golfers once you change it to male golfers you have changed one of the core pieces of preexisting data that had been selected in arranged and so then it it becomes a  sort of the key question of fact is changing from male to female golfers anough to sort of move beyond substantial similarity in that expression to be frank if they came up with a very creative way of structuring the bio's and the statistics and the other data about the women golfers in a very creative way of arranging it merely substituting male golfers may not be enough to avoid an infringement claim but again it's not just the mere laying out of anything it's the selecting in a arranging in coordinating of these particular elements which is why it's so important to attend to the facts it that it was the same vertical layout that aaron conjuring herself a design two years we do not believe that the copyright office rejected that claim what the copy from office did was respond to a claim that simply asserted layout which is a term of art for the copyright office that refers to any sort of layout and so the copyright office responded and said well you're going to need to explain that and council did council said what i meant was the selection and arrangement of the art and the quotations that's the new matter in this they're rid of work that conclusion of the copyright office and that communication with counsel only goes to the new matter in the derivative work and i think that's an important distinction to draw there was never in that instance an effort to register the compilation of the entire underlying work because it had been previously published it could not be claimed in that registration because it's previously published matter so that statement by the copyright office is really in opposite to what we're talking about here see that you're arguing anything other than that it's a fact question that yes your honor i think i think i think what the th circuit did in jacobson v deseret book  clarify that there is no singular rule with regard to some sort of categorical finner fact based works test and that to the extent there was a suggestion otherwise in prior case law jacobson clarified that it really is just a substantial similarity test and that that test provides all of the tools needed to evaluate anything from a very creative very shall we say rich copyright a to a much thinner or more fact based work there's no need for some sort of super substantial similarity test in the th circuit and i think they make a good point to crack design makes a good point that really what we did you would just there's certainly a big difference here between the creativity in regional expression even in that case and what we have here in the plant or in so it seemed to me that we are still applying the substantial  y super super substantial similarity test in the in the case like this where there's just simply minimal creativity well if you go to the did you really address that test or are you really just arguing it's a fact i think that the reason we felt the need to clarify that strip a substantial similarity is not the the mandate of the circuit is because it tends to encourage fact finders to focus on the differences like judge benson did here and perform more of a quantitative test instead of a qualitative test because ultimately the question on summary judgment for substantial similarity is whether or not the copying is so minor that is beyond the outer limits of substantial similarity and without the discipline that is required by the sort of you know through a fulsome development of a substantial similarity test then you fall back on on  a sort of classic sense like comparing the differences and not the similarities failing to compare the actual expression in the work itself like judge benson to it so that's that's why we think it is important to understand that there's no need to argue for some sort of higher burden of proof here  analyze the life plan or as a whole in evaluating it for compilation copyrights and he says the court should have looked at everything including the art and text that were not allegedly copied now this is a compilation cases we've been discussing but you still have to identify the protect in the compilation context means you identify the preexisting materials or data that you collected or assembled and you explain how those preexisting materials were data have been selected coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship the resulting work is the collection of the preexisting material or data that you identified if it is integrated into a larger volume that does not mean the larger volume is the resulting work take the supreme court fights case for example the copyright owner in that case had registered its entire telephone book with the copyright office which included yellow pages advertisements front cover design back cover design and various headings in the fight court noted the mere fact that the work is copyrighted does not mean every element of the work may be protected you have to identify the protected expression and compare it against what was allegedly copied and the only part of the phone book that was a y copied in feist was the white pages so the copyright ability analysis was limited to the white pages court never looked at compilation rights in the phone book as a whole just in the white pages list as a whole the issue was not whether feist infringed because it too was offering a telephone directory in the same geographic area having white pages yellow pages and cover art so it's not legal error to focus the compilation copyright ability analysis on the elements that were allegedly copied copied material in this case is just the selection an arrangement of types of plan or parts of the general format or layout or template of the life plan or it's the idea for the entire combination e c never really clearly says this but we know that their claim because they don't accuse crassness of copying any specific cover art or internal art or text other than the names of months and days which are not detectable they also say there's no difference between the two thousand and sixteen version of the life plan or in the tw version as far as copyrightable elements in those versions have different artwork and different selection of inspiration bullsh short phrases only the only commonality between them is the general template arrangement of the types of plan or parts easy job  ry judgment was to show that that selection in arrangement qualifies as an original work of authorship under section one or two now if they don't really challenge and we showed in our response brief that they don't get any copyright associated with the format of the template or the book design and they never really challenge that and i think i heard him just could read with that proposition that they say that they've got literary compilation rights because of the calendar elements let's specifically ruled out in the regulations you can't have copyright  compilation or otherwise in the days of the week or the organization of the months of the year that organizations not creative or expressive is dictated by common property principles they also say they've got literary copyrights in the selection of short phrases and we don't dispute that but we're not accused of taking their selection of short phrases were accused of taking the idea of the selection of short phrases and young people copyrights and ideas yes your honor this is church or perhaps they did concede it i'm not sure well because the arrangement is a compilation the compilation as a whole has to result in a work of authorship and a work of authorship has to be that those are listed in section one of two way and that and that includes literary works includes the toral graphical and sculptural works and all manner of music and other things but it doesn't include arrangements of shapes that is specifically exclude ideas and that's really what an arrangement of shapes is unless you know a format can be original if it's a unique format of some sort but if it's a it's a non expressive arrangement of shapes then it's considered a template of expression and if you protect that under copyright law then you're limiting creativity you're not  in determining that the material that he claims was copied does not amount to a section one of two original work of authorship as a matter of law that brings us to the substantial similarity analysis you see says the court erred in applying the super substantial similarity standard often associated with compilation cases you know let's assume for the sake of argument that the proper framework is substantial similarity rather than super substantial similar you know because it is sliding scale and we have knowledge that but we can't really get into the details of that because we don't know specifically what their protected expression is but just assume it's just super substantial similarity under that framework not only do you have to identify what was copied and show how it is protected expression you also have to have evidence that it was material of substance and value that constitutes a substantial portion of the work he failed to come forward summary judgment with clear with a clear articulation of what is protected expression and also failed to come forward if any evidence that it was material of substance and value and a substantial part of the war portion of the work so the district court committed no legal error copyright ability analysis and it failed to come see fail to come forward with evidence of substantial similarity in judgment was appropriate for those reasons and should now be affirmed of turnout of the trade dress issues this is a product design trade dress case that's very important it's not a trademark case it's not a product packaging trade dress case the issue on appeal is so we whether e c presented evidence sufficient to generate issues of material fact as to secondary meaning in the asserted product trade dress product design trade dress and it's undisputed that there's no direct evidence of secondary meaning in this case there's no survey evidence there's no consumer testimony no actual evidence of actual confusion e c has to make its case completely on the circumstantial evidence and that's certainly possible in theory but you need evidence that tends to show the public recognizes the asserted design elements of the life plan or trade dress as a source identifier and not just as an attractive design for the plane or product at pages sixty one and sixty two of its opening brief e c has identified eleven elements of it product design trade dress these are you know conventional size shape and content elements in general there's no specific color or image or artwork identified to put the issue of secondary meaning to a jury the evidence presented must create a genuine issue of material fact that these eleven elements of product design serve primarily as a source identifier or that the public associates these eleven elements with a single source courts and scholars  uniformly observed that this is really hard to prove that it is really hard to prove secondary meaning in a product design trade dress case that's because it's really hard to show product design is a source identifier and not just an attractive or useful design there's no th circuit product design case on point but there's also there are also no cases anywhere disputing or criticizing the cases and authorities you cited in our brief on this point you see came forward with no survey evidence no consumer testimony no expert testimony no evidence of actual confusion but the evidence that they did come forward with all suffers from the same shortcoming it's all general to the life planner of the product is not connected in any way not highlighting in any way the eleven element product design trade dress you see sales and advertising evidence for example that's the type of evidence that might suffice to create a fact issue in a traditional trademark case or product packaging case where there's no question that the logo or the word mark or the distinctive packaging elements are being used to identify a source so big sales and advertising numbers mean lots of exposure to the trademark of the packaging but that can't be said in a product design trade dress case especially in this case where the majority of the eleven elements are hidden on the inside of the lifetime or d c did not present any evidence that the sales were stimulated by the product design as a source identifier versus being stimulated by the product design as just a desirable product configuration you see did not present any evidence of advertising called attention to the eleven element product design as a source identifier or to d c present any of the let me let me interrupt you for a moment just to make sure that the other member court addressed what i would like some pretty powerful evidence here on customer recognition there was quite a bit of evidence about from online customers which is where they may sell their that customers to solve all the recollections planner very quickly associated it with easy designs planner in and not problematic and doesn't that strong e mean i guess i don't understand what you're saying there what would they have to show i mean do they have to have evidence that that it was some particular aspect of the of the design some single aspect of it isn't just the overall design i think they'd have to have been finding the trade dress right and i think they'd have to have evidence that the trade dress has been consistently used over a long period of time and in this case we have well that's not the kind of thing my question about whether the in their appeal brief was d brought in at the summary judgment stage it was produced late it was not authenticated you know it's it's people out in the public and just you know general internet things coming down and  people are not subject to deposition or anything like that so we don't know why they had the recognition that they had we have checked into that evidence and the district court didn't say whether he ruled on the objections or not i'm sorry i thought that was my final bell i didn't worry ok so that is one possible explanation for why the district court didn't confront it directly it also tends to underscore that there's no confusion at all people you know clearly were able to see the difference and we don't know why that they form the impression that they have as it then because over the years they've seen a combination of colorful elements and coils with air in concord name on it because that's it's got her name on it her name the trademark it's got her logo on nearly every page it's got three or four other different registered trademark that she puts in there you know we should be able to ask those questions but that evidence should come in in a timely manner during discovery and not come in at the th hour or the th hour really in a summary judgment response intent to deceive not just intent to copy a useful or attractive design otherwise the nd person to market will always prove the st to market as trade dress rights and that's circular and it's not the law you see also claims longtime use of it's  eleven element product design trade dress which by the way is it's very general if you read those eleven elements they don't specify particular colors it's just colorful in general you know it's trying to thread the needle to avoid the fact that it has changed consistently over the years the general arrangement has remained the same the general idea that it's fun and playful has remained the same but so many others have used the same ideas and there's evidence of that in the  record and there's also admission from erin condon herself she said there's no two years that are alike they've been responsive to custom their customer base over the years they've added and dropped features from the one year to the next and they've changed the art  graphics every year to keep up keep things fresh and interesting so the district court may know air and entering summary judgment on the failure of the evidence and of course the firm if you can also look