it's been said that copyright law is one that inherently concerns once reactions to relatively fluid concepts and rules and that is particularly true in the area of artistic expression the us supreme court's recent decision in curtseying requires that a court give substantial weight to the objective at reasonable notice of the losing party's position and analyzing whether or not an award of attorney's fees is previously applied in wall dating versus l e s it is your county sheriff's department well it indicated that it had to give substantial weight to the objective reasonable right that that is the overriding consideration right that is the overriding consideration here are the same decision was brought to regulate to the attention of the district court two weeks issuance and indeed the sunday order even awarded costs senna different amount than those that were already on appeal before this court it's issuance was was quite unusual in that regard in any of that went against my my concern is this the reason i ask the question that i did is clearly the court had the five factor tested mine curtseying greater emphasis to one of those factors it wasn't necessary that judge phillips mentioned kurt sang in making an alice if in fact she focused on the now is if she does as you have to say that for i believe that too to do the analysis required under curtseying you have to acknowledge th need to give substantial weight to that factor over to others it was not done a good thing if you understand your position you said it was made aware of it you probably was well aware of it anyway but she was made aware cursing you made a point of it she makes a ruling and mentally time back to judge morrow's earlier determination and arguably that was the factor that she weighed heavily curtseying has to be done and i don't read in curtseying any express requirement that a judge making this determination has to say right now i'm going to do the same reason was an analysis required by curtseying explicit acknowledgment requirement nor does any supreme court case saying you must explicitly say this one of flying these factors however  make clear that that factor had to be given substantial weight and was the most important factor could say also reaffirmed that the imposition of a field war against a copyright holder with an objectively reasonable litigation position will generally not promote the purpose of the copyright act the ninth circuit in the recent copyright decision williams feet gay which was authored by you are or was a forty minutes  decision and that decision stands for a number of important principles governing copyright infringement actions in the ninth circuit one that the inverse ratio rule applies asc a sliding scale in cases of copyright infringement where access is greater a lesser showing of substantial similarity is required that's true but perhaps i didn't see this in the cases i thought that there was a back and forth with discovery people were asking well where is your copy and where what are you looking at what what evidence is there and i on television so you don't have that here do you we do your honor there was direct access with the lead actress of the film there was direct access through united talent agency which represented both the lead actress and the writer director in the film and there was also direct access with todd garner whose production company broken road also received a copy of the screenplay and was paid two hundred fifty thousand dollars as a uncredited producer in exchange for a certificate of results and proceeds we knew that ms banks had a copy of it but the additional access only became clear through  discovery so the discovery basically moved the bed down the field and actually changed our burden as the case was being prosecuted because of the inverse ratio that that's correct and the complaint was a comparison of the film but there was a time code allowing page reference to the screenplay itself his base had that screenplay for seven or eight years so they had access before the case was filed that is access alone solve your problem or is it evidence that shows access to it but i don't like it that make any difference in our analysis your honor what i would say is that it creates a question for the average audience to decide whether or not your account of never having looked at a screenplay that was provided to you and then you decided to meet with the author of the screenplay after you were provided a copy of the screenplay to talk about whether or not that factual account that you never read it even though you took the meeting was credible obviously substantial similarity is the second part of the equation and that's probably your biggest hurdle honor it's not a hurdle in that to look at whether or not our litigation position was objective lee reasonable our position was supported by two  contradicted industry experts one was a screenwriting professor at the university of texas cynthia mccreary who prior to entering academia had done script coverage at one of the major studios for many years in her opinion the numerous similarities were not quite sadat all and were substantially similar and evidence to access and copying by the defendants we also had a second industry expert producer david hater of the film the x men which led to one of the most successful motion picture franchises in hollywood who  echoed those findings of his mccleary so we had expert opinion we had a great degree of access we learned about even more access once the discovery was  district court and we would submit your honor that the fact that expert opinion is routinely admitted in music copyright cases such as well i'm speaking it with that what's at issue is a few seconds of a snippet of a song but is routinely excluded as extrinsic when analyzing audio visual works in relation to works of a different medium on the written page and that audio audio visual work can be hours or many hours in length if it's a television series defies logic in this case the district court never found the plaintiff's experts to be unqualified she simply found their opinions minimize only to the average audience when we with the average audience would not recognise the appropriation we were confident that given the great degree of access and important was the district court never recognized that a pattern of similarities that individually might be individually unprotected ball could that because the district court declined to exercise supplemental jurisdiction we refiled the implied contract claim in state court and successfully overcame demurs spite thanks brill and gro access and substantial similarity the specific point at which a determination that similarities are de minimus on that scale is a highly subjective one and could saying it's clear that   just say argue window that i think you have a fairly good argument about whether the court overestimated the extent to which bad faith was involved a reasonable inspector override the analysis on those other two points i mention it's unclear if if any one factor totally override another and i don't think curtseying specifically addresses it and i didn't see anything in the recent decisions that specifically address it what i see in curtseying is that that is the factor that needs to be given the most substantial weight but again all of the factors need to be looked at in terms of what public policy is served in serving the good morning morning your honour's i think you disagree with him i do and a number of respects but most importantly i think it is it's critical to understand at the beginning something that might have been lost if you  merely listening to his coach argument and that is that the merits of this case of already been decided there is as i'm sure the court is aware of a unanimous from its of the district court's decision on the merits and that decision legally is a decision that no reasonable trier of fact could conclude that the plaintiffs work with substantially similar to the defendants work for judges the district court judge and three members of the ninth circuit have unanimously concluded that no reasonable trier of fact could find them substantially similar that we submit is a conclusive binding final decision that there is in fact no objective basis for reasonable miss in this case and that under those g under bad faith for example the it is our view that the district court properly weighed the factors under the focus the decisions curtseying does not change the factors curtseying dealt with what i will call a a small question of weighing that head arisen in the second circuit as a result of language that was in the court's eyes borderline dicked  in a number of decisions in new york the the essence of the curtseying decision is that objective and reasonableness is the most important factor but that the court the district court in awarding fees is supposed  of the factors the forty two page decision by judge phillips here contains lengthy discussion of the factors including four pages weighing the objective and reasonable as and a lengthy discussion of the other factors that are set forth in this court's decisions in each case she finds that those factors weigh in favor of an award of fees her award under this fogarty two in the more recent perfect ten decision is reviewed for abuse of discretion there is simply nothing here on this record that would warrant in any way the court reexamin what was a detailed and intense examination of the underlying record by judge phillips the reliance here which mirrors the reliance on the merits portion of the case on the inverse to the ruling here there has been in the circuit a a recent decision about six weeks ago in a case called rent mr versus nike involving the famous michael jordan  image in which the court very concisely very clearly and to my eyes very wonderfully sets forth the distinction between probative similarity which is used to create a legal inference that physical copying existed and actionable similarity which is the the heart of a substantial similary it in analysis and i  heartily commend the portions of that opinion that distinguish between the two to the court because the entire discussion of the inverse ratio rule relates to the probative similarity analysis which is not the basis that they lost the case they lost the case on the actionable similarity test because all of the judges concluded that there was simply no basis to bring a copyright case between these two to wor represent here today lakeshore entertainment which made this movie i also represent elizabeth banks an actress who appeared in the movie as you can see from the pleading i represent six or seven other parties who  also sued in this case all of my clients were brought together under the allegation that there had been a copyright infringement by the making and distribution of this movie that claim was asserted against everyone from a person who financed the movie to a person who set out the movie at the end to a gentleman by the name of max handelman and you can read this record from top to bottom and you will not for the life of you figure out why max handelman was sued for copyright infringement mr handelman is ms banks husband he made the crucial mistake of attending a lounge and because he attended a lunch he was sued for copyright infringement and made a defendant in a federal case that went for over a year there is no allegation there's no possible allegation that mr hand consumption of one mexican restaurant meal somehow could constitute copyright infringement and yet he was sued and had to defend one of the reasons that this case screams for objective and reasonable miss is that it was brought up as a blunt instrument that it was wrought with an intent to force a settlement by making it as big as broad as painful a expensive as it could be and the district judges below recognize that you can see it and judge morrow's opinion you can see it and judge phillips opinion they recognize that that was something that had been done here and that it was wrong your honors i respectfully urge you to let this award stand because somebody needs to say this was wrong were you the counsel in merit does in fact contain lengthy pages and pages and pages of discussion of what is in the works most of that discussion constitutes counsel's characterization of what was in the work there a lot of it is i was making the very long and indirect point that the pleading focused on the fact the council describes them as both striking and iconic dresses although you can look at both of them clearly the the there's the simple answer to your honor's question is that the the district court took cognizance of the actual works themselves the reason that the fight over getting the actual copy of the plane a screenplay place such a big role here is that screenplay had to be in the hands of the judge for her to make the twelve b ruling and so we fought hard to get them to say this is the one so the judge your honors we would submit that from a public policy standpoint if this order is upheld it will effectively bar the courthouse door to all but a few future copyright claimants because it will stand for the proposition that it doesn't matter if a defendant has access to your work it doesn't matter if a defendant concedes access to your work it doesn't matter if the defendants concede some copying of the work they just argue it wasn't enough and it doesn't matter if you have qualified experts supporting your case because if you are wrong on where on that sliding scale a determination is made that it's not enough and it's not made by a jury as you want it to be it's made by a judge then you will face financial ruin and that does not