of the copyright not your rebuttal but prima fascia and of course we are here on a summary judgment review where all facts should be construed in favor of the nonmoving party we think that under any categorization of these layoffs as sculptures as derivative works or even as compilations although we do not assert that they are compilations but even if they original or a compilation we argued that the summary judgment stage the the moving party of the defendant below asserted it was a compilation we are going back and actually page three seventy nine  california from judge wardlaw when she was on the district court finding that a watch a wristwatch with a and warm intention on the wrist watch the letter g various fancy designs was a useful article true but people of copyright protection and chief sting wished the useful article log like this clearly a wrist from their physical characteristic their functional characteristic is a lamp and so for that we believe it comes within the ambit of sculptural work protection it can also be a derivative work under either of those and say ok if they are similar it goes to the jury if any reasonable jury could conclude that subjectively intrinsically the protected aspects are similar we think it's clear in fact the district court agreed with us that the last were very similar and i think if any inspection of these lamps would conclude their obvious similarities there is no question of copying here the defendant went to the labs plus the idea something you're not entitled to do with your response to that exactly there's no question we cannot claim an idea we do nothing we're doing that and the proof of that is in the tiriel submitted to lo have not merged the concept of a ornate victorian piece in the entire subject matter area or the entire competitive realm teaches us those are the things that should be looked at in connection with a cultural working salmon nation and the look at sculpture work examination and when you do that then you must confront the question whether a reasonable jury is so conclude that they're similar together in the area and made them the jellyfish and this court held that no you've merged here the notion of a jellyfish the physiological aspects of an animal to the idea but the court did hold out an area of copyright protection where it said that certain aspects of this work that are not dictated by the physiology of joy and are not dictated by the requirements of the glass and glass molding should be protected are protected now in this case we don't typically describe as a thin copyright when there are numerous cases which either expand recruit which decline to extend copyright protection such situations or give very very tight copyright protection because you can't have an a monopoly on a jellyfish the i don't believe that the virtual identity test of a socket and that context applies to narrowly in this context i think here we have to look to the broader chasse of infringement of sculptural works which  analysis you believe the court still erred because under compilation theory the leading case in the serves the harper house case there that were adopted the fatherly appropriation test which the court also very clear in the order applied and exact identity standard they had to use exactly the stain he says which you say we believe that was there that the court should not have limited this copyright to the narrow confines of the exact slavish reproduction but rather there must be some margin even with the narrowest of copyright so must be some think judicial stop applies in this case in addition to that i also think there's another rule in this court that that if an issue is not properly brought up it just record level that it won't be heard by the appellate court and the issue of whether this  compilation also concluded that flunked the test for  enforceable then we would want to we would have to probably go through further factual issues regarding that but as far as just the basic premise that this is is not a presumption of liberty based on the rest very case i think it's clear that rational or sufficient reason to determine whether this was frivolous or not because they didn't consider that some of the primary issues regarding that is the fact that they made a copy or registration without identifying it as a preexisting compilation truly the creative steps that were taken as the record discloses in creating the lamps plus lamp was that mr swanson is the designing lamps for twenty or twenty five years saw that there was a marketplace first and look for shades of the agrees faces and the like to try to get a combination that he saw he went through several iterations of this with his overseas manufacturers and that's what itself it's the exact expression of it that is and we've just heard that and it seems to be the case you have either something between five and two parts here put together now is that enough to create something that protects more than the exact articulation that's present progress we think it does and it takes two steps to get there if you will the first step is the creative expression parts to do it those steps involve a certain amount of creativity we believe another originality to meet the strictures of the copyright act and we've seen cases where there's far less originality  get those now if if that's the case in other words if you can copyright something based on those selection out of many hundreds of parts into a sculptural work if you can do that then you get to the next question ok what's asked of infringement do you apply we don't think it's a compilation we've already been argued everywhere that it's a sculptural work and if you