morning and may it please the court i'll start us off by discussing the issue of substantial similarity when granting summary judgment for the defendant curse teens on the issue of substantial similarity the district court misapplied this court's holdings in lexington holmes in two waves st the district court did not focus on protected expression as lexington holmes teaches and nd the district court did not take a close look or give any credit to design basics evidence proving similarities at the level of protected expression lexington held that when analyzing substantial similarity district court should focus only on protected expression which means that before comparing the similarities and differences the district court should make some effort to separate the protected expression from the unprotected elements of the plaintiffs copyrighted works mr legitimate when you go too far down that road and want to clarify are you asking us to overrule or modify lexington holmes or are you saying you accept that framework and the district court still erred given that framework the latter your honor lexington combs came out right before we brief summary judgment in this case in from the very beginning we've tried to build our evidence and make our arguments based on this court's holdings in lexington homes including this one which says that the district court should focus only on protected expression in the district court didn't do that here instead the district court decided the issue of substantial similarity as a matter of law and why focusing only on the differences in the parties plans th what is protected what's the protected work or protected expression because there's not a lot of room i think you would agree or maybe not but not a lot of room in this arena for originality  i do disagree with that a little bit your honor and in let me be specific there are certain styles of family homes that have conventional design features for example in the zalewski case the court was working with colonial homes and the court decided that there was no infringement there no substantial similarity because the similarities were all dictated by the conventions of colonial home design and there there wasn't any evidence like that in this case there was no evidence to prove that design basics homes in this case followed any particular style of single family home and what we tried to do in this case your honour's present specific evidence of of uncommon original design features that were copied in kirsteen as homes so we tried to answer that question with evidence in the district court for example your honor with our we identified fifteen share design features that appeared in christine's seven hundred and six plans but net did not appear in any of christine's seventy or so not accused lines and then we took it one step even further and we identified four original uncommon design features combinations and arrangements that are not found not only in persons plans but in a sampling of six thousand two hundred and thirty nine similar sized stockholm plans that we took off a popular plan broker website let me give you one example of that when you walk in the front door design basics brittany you walk into a two story open four y r to your left is a hallway that cuts diagonally across the st floor and leads back to the master bedroom right to your left and the open forty or there is a you shaped switchbacks staircase that takes you up stairs and then back down in the basically the same space once you get up stairs there's an angled balcony that cuts across diagonally in the other direction that overlooks the two story  an original uncommon population of design features that appears in design basics brittany plan and and how do you know that's original and uncommon well one way and the these are trapped homes there's there's only so much you can do syriana so so st of all we tried to demonstrate that it was original and uncommon by showing six thousand dollars plans that did not include it but there was also the got it as far as the question between original and protected i think you know if this court adopts the eleven circuits holding  another wise in lexington holmes i don't know that the court addressed that issue in lexington home that the court decided that based on the evidence that was available in that case which was basically the press or green streets rebutted expert report but in this case we presented sufficient evidence from which a reasonable jury could infer that person's copy protected expression in our plans and that's what we needed to do to get past summary judgment but the district court didn't give design basics evidence of substantial similarity any credit at all and didn't even look at the particular protected expression that we tried to identify instead the court just simply counted the differences and then dismissed design basics evidence of substantial similarity summarily basically holding that all of the similarities and design basics and cursed things plans existed only because quote the party's home plans resemble common home designs that one might observe throughout the suburbs of milwaukee chicago indianapolis and other communities and you're out of that conclusion was a reversible error for two reasons st the district court did not construe the summary judgment evidence in the light most favorable to design basics as a rule fifty six requires nd the district court's conclusion wasn't supported by any evidence in the summary judgment record there was not any of it and it's showing the common design features or conventional design features that appear in quote common home designs observed throughout the suburbs of the midwest you know you you might be right when you point out the couple of features that you did with britain with the britain design but what is on my mind when you make that argument is i'm wondering whether you're cherry picking copying is still actionable if it's qualitatively substantial so copying is not excused because it is insubstantial in the infringing work in other words in a case like this one were designed basics proved that person's copy specific protected expression from design basics ohm's own designs the difference is in unprotected elements shouldn't get christine's off the hook for copying and h those lines though so if you if you're able to say based upon the diagonal hallway in the you shave stairway set everything else aside just ignore it we should have a trial on that alone is that is that the contention knowing we were giving that is an example of protected expression that's a copy didn't kirsty know how is that when st someone when i when i read the district court's opinion right she she outlined a whole bunch of differences right i mean page after page after page and your adversary highlights those differences and my question is one of measurement how if if you are finding something that is unique that's protected expression how do you know when there's enough to call it a jury question i think the question the question on the issue of substantial similarity is did the defendant copy protected expression and design basics plans i don't think we have to prove that persons copied all of the protect no but that's just restating the question but if you say it right if you say is the diagonal holway in the you shave stairway and off on britain published memoirs he had made a deal with harper and row to publish his book and then the magazine the nation's got a hold of the unpublished manuscript and took three hundred words out of it and copied those three hundred words in an article that thousand five hundred words long and what the supreme court said was you know even though that was an insubstantial part of president ford's book and it was only a small portion of the nation's article it was copyright infringement but i'm not sent to the homes it tells us is that that's not the appropriate analogy for the architectural context when you're dealing with tract homes that are mass produced throughout the country that has to be something different and so i think tipped to pick up on shirts covers question what's the appropriate test that we should give to the district courts in applying these substantially tests in this arena or that we should instruct and juries on in this arena it can't where's the line but i think the line in the instruction for the jury is the ordinary observer test you're o of but the court can also pick up on what lexington holmes talked about as far as separating protected expression and on protected expression let me go now does your i'm sorry to interrupt mr le to let me go back to your ordinary observer test ordinary observer of what and where when is substantially similar enough when does just similar or all the differences trump substantially similar what's the test again the focus would be on the differences are similarities in for the depression and the ordinaries or observer test as it's as it's written is whether in ordered an area observer could detect the differences  you know if you didn't set out to look for the differences and that's that's up to the jury but in separating unprotected expression from protected expression doctrines of sense of fair and merger are things that the district court could instruct jury on and then the defendant would be you know free to prove that st like for example in zalewski the defendant there offered in the evidence of a book that showed the conventional design features of colonial homes and from that the court could sort out what was just following the design conventions of a colonial home and what was unique but i think you're i think you're one of your adversaries points that i'd i'd like to hear you respond to is that that very exercises extortionate in this context that going to that when you're dealing with is judge steven is pointing out kind of track homes with an awful lot of similarity to put architects in other firms to trials in this situation is just going to extract an extortionist settlement out of them business goals and business practices these days how do you respond to that that they say there's no there's no reality in a trial we're just going to settle and that's the whole reason you brought the lawsuit well there's there's two points there yo although there's no evidence or any basis to resume that my client is really just out for a quick buck this case is a great example and i thought i thought patrick carmyle carmichael testified in the record in lexington holmes that design basics was was relying in substantial part upon the proceeds of settlements for its revenue streams going forward that is absolutely not the core business of design basi it is my recollection of what we said in lexington holmes accurate or inaccurate your recollection of what lushington holmes said is accurate your honor but the record in this case shows a lot of provides a lot of information  about design basics legitimate business st and foremost as a surprise you know as a creator and marketer custom home design now direct the court's attention to the information that is included on our short appendix ive thousand licenses the design basics currently offer single family home licenses or more than two thousand eight hundred plans that range and licensing fee from seven hundred and sixty thousand dollars since two thousand  designed basics has issued eight thousand two hundred and seventy two licenses for exams designs making more than six million dollars there's a record show in more recent years what percentage of the firms revenues come from litigation settlements only then copyright protection and only very close copying and i would like to ask the court to take a close look again at zalewski in what it said about that and also what this court said about it in lexington homes in the quote from lexington holmes was quote women architect hughes closely to existing convention the architects original contribution is slight in his copy of his copyright is thin so that only very close copying could take whatever belongs to him i think that idea there is if you're designing ace particular style of home or example the colonial home and zalewski or in lexington there was evidence in the record to dr green  streets expert opinion that he considered design basics homes involved in lexington as quote unquote traditional homes that had particular design features dr green street did way more than just identifying the differences but in this case the evidence for the record it includes absolutely no proof that either design basics or persons was hearing closely to an existing design convention for any particular style of home i've heard the words today stock homes and tract homes but there are no particular design conventions for a quote unquote stock home or a track home were if there were it if these features were so common and prevalent then you we would have thought that persons could have come forward with at least one single design one single home plan that showed that for example the angled balcony over the two story for her in the brittany appeared in any other home beside design basics brittany and christine seven o six they didn't present any of that evidence so if it is true that these are just common features you can find in any suburban home and he may grease the court lexington homes provided a framework for determining substantial similarity a framework that focuses on the difference that's differences between the co judges in the th circuit and ins other circuits lexington has become an important case with significant presidential ballot it didn't turn out good for designers it's which is why is you know what even if this court did adopt design basics she spent approach herstein should still win why because her stings was the only party that submitted an expert declaration on the issue of whether the features design basics of alleged were infringing were in fact standard features and thus not subject to protection under the architectural works copyright protection over her your question for you how do you how do you deal with this issue that at least is on my mind where there seem to be kind of a sea of similarities the district court as you know outlined  several examples of where this is like that and this other thing is like that too just one similarity after another but mr le doux makes a point that well what if he what if design basics is able to point not so much to the ocean but to a particular couple of features in the britain design that do appear in his view unique how how does the law go about that it sounds to me like i mean what he's arguing is that the entryway to a home in the you know x exposure the balcony looking down in this kind of you know unique angle of the hallway it set or that may be enough that's not you know the laundry rooms right off the garage and some of this kind of boilerplate stuff in home after home well the good what we did with what the defense did in this case was they served contention in iraq between reason and design base interruptus the standard feature st has protected expression come down to expert testimony is that what you're arguing for not entirely i mean what i'm saying is that if if it doesn't come down to expert testimony how is a court or a jury supposed to differentiate between the two what's the test or other then an expert says so or a battle of the judgment should apply or we shouldn't struct a jury on what's the legal test for determining that we'll test more substantial similarity is one that is included in the pattern jury instructions asking and i'm not missing where to find i'm i'm asking legally mr over house or what should that test be and then nd question is if for the standard feature versus protected expression in order to prove it do you need expert testimony but the st question is what is the test now we're not looked at your instructions which of the contents of those jury instructions  neurons in terms of how to look biased to determine whether there is a rational number one substantial similarity so if you have similar features and you have to similar features how many different features are enough that it's not substantially similar i'm not sure there's a good answer for that in the abstract your honor i just i can't say i don't think there is  degree of judgment and ball but what we do know is that at least in the lexington holmes case if the plans look like this there is not enough similarity to make a substantial issue of material loss because it doesn't focus on it doesn't focus on the u shaped stairway in the balcony in the in the doorway right it gets bogged down into the kitchen size the laundry room location the laundry size the living area size in and i i don't know how you sort through this the lawsuits not brought based upon the before year the unique design of a four year it's it's brought based upon a zillion other things that seem completely common if you were to go house to house through the neighborhood  i agree with you but if you're a defendant that has been accused of copyright infringement under the architecture or worse copyright protection act all you can do is go to the plaintiff and say what is it that you claim i copied from my client's perspective that he never you know when he submitted evidence he never had access to any design mase explains we need to rely on the point if to tell us what  not read our opinion in lexington holmes and think the lawsuit is abusive from the very get go because it's not about the four year it's cetera et cetera and that that's the biggest difficulty that i an a very good business model for design basics he pursued i just like to point out a couple of final issues and that is if this court decides to i don't  district court never reached those issues and that's because it found the back of substantial similarity dispositive but if this court decides to alter the outcome of substantial similarity to twenty have to go back and make a ruling on the issues of lack of access and independent creation we think that either of those grounds is sufficient to have granted the defendant's summary judgment in this case in closing i also know that design basics identified as an issue on appeal whether or not the a jury see a war was reasonable per ns response brief explained that this issue is subject to review for abuse of discretion designed basics report i briefed not make any counterarguments and less the court has further questions persons after the guidance from lexington we did make that we presented evidence that made it all about the foyer for example that that switchback u shaped staircase in the angle for all of that is in the record  included in e c f document number one hundred and fifty dash one in the foyer in particular as mentioned that pages fourteen and fifteen and then your honor in mr christine's deposition we asked him specifically about the angled balcony over the two story sawyer in his seven hundred and six plan and christine's britany plan and he testified contrary to his declaration saying that all all similar features were standard he testified that the angled nd floor balcony over the two story four year is quote unquote unique quote nonstandard feature and he agreed quote you don't see that in most he the only evidence that that person is presented to show that these were standard features was mr kirsten's testimony contradicted himself multiple times in his deposition including on this open for with the egle