[00:00:02] Speaker 03:
Councilor, you may approach when you're ready.

[00:00:06] Speaker 03:
Oh, you're going to sit from there.

[00:00:07] Speaker 03:
Okay.

[00:01:24] Speaker 04:
Okay, we just have a little bit of echo in this room.

[00:02:03] Speaker 04:
a substantial similarity test, basically a ripoff of plaintiff's work.

[00:02:09] Speaker 04:
I've got a fairly extensive outline here of things that I'd like to discuss, but I see that our time is extraordinarily limited.

[00:02:16] Speaker 04:
With that, I'd like to maybe do something slightly unconventional and just kind of get into whatever questions that your honors may have, because I suspect you might have many.

[00:02:25] Speaker 04:
And if there's any that are burning, I don't want to leave you without the opportunity to address them.

[00:02:30] Speaker 04:
So are there any specifically that you'd like me to address?

[00:02:36] Speaker 00:
I suppose my first, maybe my biggest question is that it seems to me that the themes that you identify as being substantially similar, such as the morality issues, good versus bad, choices that people make as mothers, daughters, partners, that those are things

[00:03:05] Speaker 04:
unprotectable so if you could address that that would be helpful for me absolutely terrific question because I believe that the district court approached this with something of a jaundiced eye toward

[00:03:34] Speaker 04:
to distinguish, to separate the wheat from the chaff, what is an ordinary trope, what is sans affaire, and what is unique to this genre.

[00:03:42] Speaker 04:
Our expert, Mr. Radhaft,

[00:04:00] Speaker 04:
what you say to separate what is and what is not protectable.

[00:04:04] Speaker 04:
But even over and above that, there's an important analysis, the selection and arrangement test, otherwise known as the Metcalfe test.

[00:04:13] Speaker 04:
And I'd like to talk about the Metcalfe test briefly because there's this insinuation from the district court that it is either a dying doctor or something that's hyper narrow.

[00:04:27] Speaker 04:
or these are the facts that were an issue in Metcalfe and a conclusory statement with no one else.

[00:04:52] Speaker 04:
stated that an expert might indeed be helpful in separating what might be a mere pirate trope from the rest of the film.

[00:05:00] Speaker 04:
Oh, was it a motion to dismiss stage it?

[00:05:03] Speaker 04:
It wasn't a motion to dismiss stage, but nevertheless, it talked about the importance of why expert testimony might be important.

[00:05:10] Speaker 04:
It was Judge Page that wrote that opinion.

[00:05:11] Speaker 04:
I believe you're clear for him, Your Honor, and it was, that's one where

[00:05:25] Speaker 04:
Now, whatcha doin' this for?

[00:06:46] Speaker 04:
the chronology of all the scenes.

[00:06:49] Speaker 04:
The police will charge that this is just a shotgun approach to a bunch of similarities scattered throughout.

[00:06:57] Speaker 04:
It's not the case.

[00:06:58] Speaker 04:
Our expert talked about importantly that this was in a chronological order.

[00:07:04] Speaker 04:
Similarity at every

[00:07:38] Speaker 03:
How does that sort of fit into a MedCav framework where it's very highly specific details that seem to be more of a ripoff, as you were describing it earlier?

[00:07:48] Speaker 04:
So I would argue that we both meet the test of regular substantial similarity in addition to the MedCav test.

[00:07:56] Speaker 04:
It's not like MedCav is just a backup here.

[00:08:00] Speaker 04:
The similarities here

[00:08:09] Speaker 04:
I want to further address in this example how the district court erred in not honoring the rule.

[00:08:38] Speaker 04:
I'll give you a bonus one here in oral argument.

[00:09:13] Speaker 04:
casino.

[00:09:14] Speaker 04:
They could have chosen anything other than a casino, but that's the that's the issue that was involved in both works.

[00:09:21] Speaker 04:
Judge Wilson here gives short shrift to the casino element in our work, P Valley, saying it was only a minor element.

[00:09:30] Speaker 04:
Our expert refutes that.

[00:09:32] Speaker 04:
He says, no, the casino element is indeed an important plot mark, and I'm not sure where... Well, why, Councilman, did you not

[00:09:54] Speaker 03:
because it wasn't very clear in the briefing.

[00:09:57] Speaker 03:
But it seems to be just a passing reference in the play and in the movie.

[00:10:05] Speaker 03:
How does it figure prominently in your view in SKC?

[00:10:09] Speaker 04:
Because it is a prominent bond in SKC.

[00:10:12] Speaker 04:
The takeover is not minor.

[00:10:14] Speaker 04:
And perhaps if you just control F for the word casino in SKC and see it a couple of times, you think it's a minor plot line.

[00:10:20] Speaker 04:
And I think the district court frankly just adopted

[00:10:51] Speaker 03:
This is a major plot point, so can you back it up with some references to the record?

[00:10:58] Speaker 03:
At the moment, not specifically.

[00:11:01] Speaker 04:
I could just tell you that it is woven throughout the entire thing.

[00:11:05] Speaker 04:
It is not a fleeting reference.

[00:11:07] Speaker 03:
Then how else did the district court sort of look at this with a jaundiced eye?

[00:13:02] Speaker 04:
Perhaps the opinion of Judge Wilson says that, but this is, again, where the judge was... We have to know from review, but I'm asking you why my view is wrong.

[00:13:17] Speaker 04:
Sure.

[00:13:18] Speaker 04:
Well, I point again to the expert opinion, which, again, is not a rubber stamp of just what our client says.

[00:13:46] Speaker 04:
in SKC, it is internally inconsistent.

[00:13:50] Speaker 04:
Let me give you one more example.

[00:13:52] Speaker 04:
This typifies the district courts there, okay?

[00:13:56] Speaker 04:
There's a scene where the newbie dancer goes to change in the restroom at the beginning of her career in this strip club movie.

[00:14:05] Speaker 04:
Changing in the restroom in this kind of modest context is a little bizarre, right, because it is a strip club.

[00:14:11] Speaker 04:
They're in the back with all the girls, okay?

[00:14:14] Speaker 04:
The district court does two things.

[00:14:34] Speaker 04:
Then in P Valley, the district court goes on to say she changed in the bathroom not because she was modest, but because she had to hide a gun and drop down a bottle of alcohol.

[00:14:46] Speaker 04:
By the way, that bottle of alcohol was a miniature.

[00:14:47] Speaker 04:
She took two sips of it.

[00:14:49] Speaker 04:
But in the play, in P Valley,

[00:15:11] Speaker 04:
these things are dissimilar, which is not supposed to be the focus.

[00:15:15] Speaker 04:
He's supposed to be focusing on what we allege are the similarities, taking as true our allegations.

[00:15:43] Speaker 02:
Good morning, Your Honors.

[00:15:45] Speaker 02:
May it please the Court, my name is David Halberstadter, and I'm appearing on behalf of the appellees.

[00:15:51] Speaker 02:
Your Honor, just because appellant and appellees disagree about the accuracy, the validity, or the significance of appellant's comparisons of the works does not mean a material factual dispute over substantial similarity exists.

[00:16:05] Speaker 02:
In fact, if that were the case, some judgment would never be appropriate on substantial similarity grounds because the adverse parties always disagree

[00:16:29] Speaker 02:
could not find the works to be substantially similar in protected expression.

[00:16:34] Speaker 02:
The district court engaged in that objective evaluation.

[00:16:38] Speaker 02:
It reviewed the works.

[00:16:39] Speaker 02:
It carefully identified the elements of plot, theme, dialogue, mood, setting, pace, and characters that were unprotectable.

[00:16:48] Speaker 02:
It filtered those elements out of the analysis.

[00:16:56] Speaker 02:
found that a number of the 57 purported similarities that appellant identified were actually not based on any of the three Soul Kittens cabaret works that were in issue.

[00:17:10] Speaker 02:
By appellee's count, there were at least 10 of those.

[00:17:14] Speaker 02:
The district court found that a significant number of the remaining similarities were the result of appellant's mischaracterizations of one work or the other or both.

[00:17:25] Speaker 02:
By our count there were at least 10 or 11 of those as well.

[00:17:51] Speaker 02:
the work's respective plots, themes, dialogue, mood, setting, pace, and the characters.

[00:17:57] Speaker 00:
It would be helpful if you could address for me the issue of the expert declaration and why the expert's career, his 30-year career, was not sufficient to qualify him as an expert.

[00:18:12] Speaker 00:
Certainly.

[00:18:12] Speaker 02:
Well, to answer that narrow, specific question,

[00:18:26] Speaker 02:
thousands too, but that doesn't qualify an individual to opine on substantial similarity if they don't have any background in literary analysis.

[00:19:00] Speaker 02:
Judge Wilson in Gable reached that conclusion in striking the expert testimony of Professor David Nemer, who was a well-recognized scholar in copyright, but had no expertise in literary analysis.

[00:19:17] Speaker 02:
And this court affirmed that exclusion.

[00:19:22] Speaker 02:
So I don't know that there are any other cases that would support this.

[00:19:32] Speaker 02:
Yes, very much so.

[00:19:33] Speaker 02:
In fact, as this court knows, expert determinations lie peculiarly within the sound discretion of the trial court, and reviewing courts afford the trial court a high degree of deference.

[00:19:45] Speaker 02:
So for this court to overturn the granting of the motion to strike, it has to be firmly convinced that the district court decision lies beyond the pale of reasonable

[00:20:09] Speaker 03:
When is it useful in some circumstances?

[00:21:23] Speaker ?:
Thank you, Your Honor.

[00:21:25] Speaker 02:
I do not believe that the, had the, first of all, let me say that before responding to that question, and I will, it does not matter whether any of the members of this panel, had they been sitting at the district court level, would have ruled different

[00:22:18] Speaker 02:
considered the expert report that it would have changed anything because the expert largely parroted appellant's comparisons, which the district court found repeatedly to mischaracterize the works.

[00:22:33] Speaker 02:
Have I answered your Honor's question?

[00:22:35] Speaker 02:
Yes, thank you.

[00:22:36] Speaker 02:
Thank you.

[00:22:51] Speaker 02:
First, the similarities that appellant alleged existed between her sole kit and this cabaret works and appellee's television series, P-Valley, in my view were even less compelling than those in the seminal Ninth Circuit decisions in which this court affirmed summary judgment for the defendant appellate on substantial similarity grounds without, may I add, any expert testimony.

[00:23:56] Speaker 02:
of the works such as the works were not actually similar in their protected expression and that any remaining elements were nothing more than random similarities scattered throughout the works and or different expression of common unprotected ideas and themes.

[00:24:12] Speaker 02:
In my view the significance of a

[00:24:39] Speaker 02:
a subject of felons infringement claims.

[00:24:43] Speaker 02:
They did it again today by referencing the scene in which the dancer arrives by public transportation.

[00:24:51] Speaker 02:
The public transportation element is not present in any of the SKC works that are at issue.

[00:24:57] Speaker 02:
It was included in the Curtinus script, but not in the script at issue.

[00:25:03] Speaker 02:
There is no question or dispute about this plaintiff's own

[00:25:13] Speaker 02:
curtains.

[00:25:14] Speaker 02:
But Appellant did not withdraw these claims similarities on appeal, rather she just doubled down.

[00:25:21] Speaker 02:
Likewise, the significance of Appellant's blatant mischaracterizations of the works also cannot be understated.

[00:25:30] Speaker 02:
Throughout its order, the District Court identified comparisons that mischaracterized one work or the other in order to manufacture a similarity.

[00:25:38] Speaker 02:
And even when it didn't call out Appellant expressly,

[00:25:52] Speaker 03:
actually disingenuous and they're doing it again today.

[00:26:29] Speaker 02:
were a gay man, I would consider gender fluidity different.

[00:26:33] Speaker 02:
And similarly, if I were a gender fluid individual, I would probably react to being characterized as a gay man.

[00:26:41] Speaker 01:
Well, Castle, there's also the distinction in the way these are expressed in terms of their identities.

[00:26:47] Speaker 01:
I mean, Tata doesn't have long silver nails and some of the other things that occur with Uncle Clifford.

[00:26:57] Speaker 02:
Yes, that's correct.

[00:27:00] Speaker 02:
Uncle Clifford identifies this female.

[00:27:02] Speaker 02:
He wears predominance.

[00:27:26] Speaker 03:
answered your question.

[00:27:28] Speaker 03:
I mean really what I'm thinking about is what level of specificity would we need to get to it in this context for example because there aren't that many stories about an LGBTQ related owner of a cabaret or nightclub and so we could slice it further further down and I take your point that there are these differences but is that necessary for the civilian

[00:28:21] Speaker 02:
they do and their role in the story.

[00:29:03] Speaker 02:
the, to whom they're attributing this casino plot development, Frank is the deceased lover of Tata Burlesque, who gave the club in his will to Tata Burlesque, and it is apparent far, far

[00:29:31] Speaker 02:
that Tata Burlesque bewitched his father, turned him gay, I use turned in air quotes, turned him gay, and he thinks he is the rightful owner of the club, so he wants to do anything he can to get that club back.

[00:29:47] Speaker 02:
It has nothing to do with a casino development.

[00:29:52] Speaker 02:
Have I answered your question?

[00:29:53] Speaker 02:
Thank you.

[00:29:54] Speaker 02:
Great.

[00:29:54] Speaker 02:
So, the other item, as I mentioned,

[00:30:02] Speaker 02:
Thomas has doubled down on these mischaracterizations and did it just now in his oral argument.

[00:30:36] Speaker 02:
the other dancers obviously didn't know that because she was changing in the bathroom and so they wondered why you know how could she be how could she be you know ashamed of her body at this stage but it's not the same as brandy in soul kittens cabaret who was genuinely self

[00:31:03] Speaker 03:
That was a perfect example of how a parent had mischaracterized one work or the other to make them seem similar when they were not.

[00:31:36] Speaker 02:
opening brief does not argue that the district court misapplied the test.

[00:31:42] Speaker 02:
She argues that the court neglected the test, which obviously isn't true because the order granting summary judgment spends two pages considering that test.

[00:31:55] Speaker 02:
It does not create a tribal issue of fact because, as the

[00:32:07] Speaker 02:
of one work or the other.

[00:32:09] Speaker 02:
In fact, the entire comparison analysis was plagued with mischaracterization and correctly concluded that the selection and arrangement of these unprotected elements in no way approached the level of similarity present in Metcalfe.

[00:32:23] Speaker 02:
I will add that, you know, in Metcalfe,

[00:32:40] Speaker 02:
elements was striking.

[00:33:14] Speaker 04:
let's take that bathroom example where counsel said that we mischaracterized the record and so did the district court.

[00:33:20] Speaker 04:
Go ahead and look at 2ER171 and 2ER171.

[00:33:35] Speaker 04:
the back quarters of a strip club, look for yourself.

[00:33:39] Speaker 04:
But this tripartite disagreement between Appalachians, and the district court, that crystallizes how we have different interpretations of what both works meant at the time.

[00:33:52] Speaker 04:
That is the province of the jury that the district court in this case violated.

[00:33:59] Speaker 04:
Okay, let me speak to the expert.

[00:34:08] Speaker 04:
Folly to expect judges to be familiar with and understand the nuances of any given field, including those such as literature that we often falsely imply are not as complicated as computer software architecture or others.

[00:34:51] Speaker 04:
where expert testimony might be helpful.

[00:34:55] Speaker 04:
And that's what the district court said.

[00:34:57] Speaker 04:
When I was growing up listening to rap music, my parents would say, why are you listening to that?

[00:35:02] Speaker 04:
Every song sounds the exact same thing.

[00:35:04] Speaker 04:
And I would retort to my dad and say, well, how will all the country music you listen to sounds exactly the same?

[00:35:09] Speaker 04:
And his response would be something along the lines of, are you talking about country or are you talking about western?

[00:35:14] Speaker 04:
And this goes to show

[00:35:37] Speaker 04:
strip club genre I certainly not but Robert Aft had reviewed several works went through the the every single one of the Ninth Circuit's elements of substantial

[00:36:14] Speaker 04:
notion that there was no substantial similarity.

[00:36:17] Speaker 04:
Further, just for the same reason... Just to wrap up, counsel.

[00:36:20] Speaker 04:
Sure.

[00:36:21] Speaker 04:
This is the last one I'll make.

[00:36:22] Speaker 04:
For the same reason that in the Ninth Circuit it said just listing a bunch of random similarities should be discounted, so too should be the list of dissimilarities.

[00:36:33] Speaker 04:
I can count a thousand dissimilarities between the works.

[00:36:36] Speaker 04:
That doesn't mean that both works aren't substantially similar.

[00:36:39] Speaker 04:
Look at the Ninth Circuit's case in Alfred.

[00:36:46] Speaker 04:
and there might be here too.

[00:36:47] Speaker 04:
That doesn't mean that they are not substantially similar for purposes of copyright infringement in the Ninth Circuit.

[00:36:54] Speaker 03:
Thank you.