established in this case is that a few aspect of the appearance or backstory of depending on the platform one or two of the seventeen fanciful boxes in midway's ready to rumble game call to mind or vaguely similar to characteristics in the rocky movies and if that's all you establish in a copyright case you're supposed to have summary judgment entered against you and not for you i'd like to start today with elements that we believe are not protected or not protected by the copyright law first trayvon appears in fifteen to twenty percent of the movie he's got ten speaking lines at best he's a chessman we learn nothing about his family background his interest is his love his likes at that to trust man in the still larger story of the east west showdown north the especially distinctive he's at that's a stereotypical soviet athlete highly trained an automaton basically some symbolic metaphor for the east you and then you'd be liable under the virtual identity requirement even if you can string together a bunch of non protectable elements in such a way that if you strung them together in a way that's virtually identical and it's a significant way to be i don't know what elements that have been floating around in the case law and that that's what i have to work with and so i would say that and then he is not protective although if somebody lifted his image verbatim with all those ten timelines that that but i would say that he would fall more in the lines with godzilla or somebody that's been in some somewhat of an icon of american culture which is typically the types of characters that get  and then would have a cause of action for right of publicity or misappropriation claim that would not be what and g m would really not be able to serve a search appropriation of the image and i think that would be a closer cause else but not it's not as contemplated by the copyright act there's other elements that there are that there is hurting and all of these different plot elements are basically incidents as we've argued and everything seems a fair to general or abstract to deserve protection about your training winning losing time thing the east versus west story basically the entire symbolism of the entire all these various plot elements are just they're too general they're too abstract they're to miss a if you have certain elements that are substantially similar then this court has said that you look to see if there's a few elements that are strung together similarly in a larger work you look to see whether that's qualit important and i think you've got to look at the context here is key because history no character has one character first of all he appears only one of the four platforms he's one boxer out of the seventeen he's a that bochco face is a good example of that but because of the the way the different elements were strung together but here if you don't even have substantial similarity if you look at the looks you can  yourself we've we have the photograph of the flash for you have a taxable to begin with of a screenplay right you don't you can't use the standard of personality i like the movie the the game character has no personality and if you look at the back story you know there's a couple of different elements to it is a proven warrior well first on the back part doesn't even appear in the game but to tell you the proven warrior all that's prevented from being it sounds like the focus may be on the few pages in the instruction book but the instruction booklet is distributed together with the game it is distributed with the game writer but i think most people that would play the game don't you know might not  just turning to a couple of the different elements of the story proven warrior anyone could be a proven warrior one unlocked the championship many times coming out of retirement george foreman muhammad ali sugar ray leonard now respected trainer donning his stars and stripes trunks entering he doesn't train in croatia and training intensely for every fight to not let his country down it's just that's that can be you know anything any actor or any any character in a boxing story also turning to a comparison of the game in the movies became obvious there's no plot no seam no sequence it's totally driven by the players no dialogue you know just a couple of different you know stock stock aton phrases the setting of the boxing ring there's no place if you just if you look at the if you watch the movie and you look at the videotape of the game or play the game he says can't they're not even remotely similar let alone substantially similar but that's not calling to mind it's not substantial similarity it's a lot is required for substantial similarity and calling to mind is not it you know everyone every story you know can cause mind to romeo and juliet but another critical factor and one that's largely overlooked by midway is the fact that you had not only virtually undisputed access but truly this case presents itself much  way a parent it's present itself at the end of the day stripped away from it with arguments of the fact that they started these characters in the game and ended these characters with the rocky in the drug character and there was some movement people we don't just have the visual characteristics of these two boxes as presented in the films midway wanted to view these characters with far more than just the visual appearance and it was just the visual parents that was at issue it might be a very different not i'm not sure people who play this game today have any clue about the consumer survey which is underspin the record tells us that there is a recognition of the question were surveyed my house and w well i'll give you philadelphia but other than philadelphia what ensnare in the character that isn't a classic stereotype that exist in every boxing movie over the past fifty years but if you want to and this is featured you had huge versus last you had soviet athletes characterizes products to the scientific machine forever the idea of an eastern bloc last year doesn't strike me as being particularly unique  to marry that with the existing rocky plot character development that has been presented over three movies with the boxing metaphors there's no question let's be clear if we're here today because there's an italian boxer and climactic fight that seems unfair that stock scenes but when you marry together all the elements that they took from rocky and ultimately when you look at you know in toronto everything that they are comes from the this seems to me the thrust of those things is developing a human being it's not what goes on just in a box like a logical kind of thing and this is just characters a boxing ring if you're just playing my little bio that harley just went far well as terms of copyright infringer that's going to result in a permanent injunction on summary judgment particularly when w understood your honor and again we were merely here because they took two boxers one dimensional video game representation and tried to view them with no characteristics one has to ask why is there any structure in booklet that gives a backstory why are they creating this product of the soviet athletic machine i saw before so so how is that so unique the idea that they're going to take that expressed in the context of the boxing ring which may be new to rocky for i haven't thought about it in that  nationalist explain the moving their own expert with those things are the things that are featured in the game and the nation turns out to be a different nation but we submit that the backstory is what brings those things the game again if they merely want to take a cross the line when you appropriate so much of what they are and of copyrighted and also a source identifier own the trademark claim you raise so much that everything that goes into those characters whether the visual characteristics alone whether the distinct personality in the or in the east versus west alone when you combine all of those things together and we submit they are protecting the loans but the three boys case tells us even if any one of those is untestable and you combine them and then when you have the result is the characters those are that's going to resurrect them but but but the notion i think it's a bit unfair to suggest that this was quick and dirty or this was somehow voiced on them they move for summary judgment we had to go into court to have more time and they may not they may not have been able to prove was cobbled together just to somehow pull one over on them and they came to court and said the record undisputed record as they presented it supported summary judgment we had asked for more time we presented a survey they're well resourced they could present their own survey in seventeen years properly performed and given that compared to most these cases deal point case there are cases where you have a pop phenomenon that somebody's trying to capitalize on these are movies we're twenty five years removed from the initial release be trying to attach personalities to characters that actually have no personalities you're going to get stereotyped and what i'm still waiting for is how is this not simply touching the vase in a pretty classic stereotype for a boxing movie or  if you're trying to identify lots of characters let's move forcefully ceiling picks every olympics every four years and track meets i remember sitting there vividly watching and frankly us us are tracking like anybody ever watches track other than during the olympics but back in the nineteen sixty's that was big stuff but i personally fast creating a female version all these german one swimmers there are lots of stories that are east versus west and this just happened to put in the boxing ring but i think the problem  tipline but when you think there's no question you would describe robert frost character in the movie absolutely but but in a completely different setting in a completely different context outside of a sports team you know if we really were trying to protect thinking runners i just have i really just want to touch on this idea of the different media was for i think judge kozinski kind of started on this whole argument that these works appear in different media is factually and legally wrong if you look at section one zero two eighty six of the copyright act that protects motion pictures and other audio visual works and courts of that video games fall under audio visual just lumped together with motion pictures and there is no reason why they couldn't have imbued there when we couldn't have them you to our game with all the elements of rocky we could have had a love interest we could have appropriated all the different scenes that the rocky movies fall and we could've appropriated their music we could've appropriated video clips we could have had all of the different boxers that rocky fights we could have had a spitting image of sylvester stallone stuff on green and all the other characters and in fact midway i'm sorry m g m license to such a game to rage games which does have all of these various elements so the fact that there are different media involved here is just it's not true as a matter of fact because all of these capabilities are there within the video game we could have designed a game that takes off after the rocky series with that we elements that are in the rocky series we didn't we've got to mechanical flat character caricature boxers among seventeen and all they do is run around the rink they move all the time they box that's all they do and it that's substantially similar to a two characters and a movie as a matter of law is it in our view that cannot stand in our view we are entitled to summary judgment on this on this claim and on the trademark claim as well