[00:00:00] Speaker 05:
Judge Johnstone and I would first like to thank Judge Simon from the District of Oregon.

[00:00:11] Speaker 05:
He has a very full caseload in Oregon, and he has very kindly and generously agreed to take on a lot of additional cases to help us out here at the circuit.

[00:00:20] Speaker 05:
We're really grateful to him and to his law clerks.

[00:00:24] Speaker 05:
Just say what a joy it's been to sit with you this week, and we hope you come back.

[00:00:29] Speaker 05:
We also want to thank all of you for being here today.

[00:00:31] Speaker 05:
We welcome you to the Ninth Circuit and are very pleased that you're here with us in San Francisco.

[00:00:36] Speaker 05:
So with that, there are a number of cases that have been submitted on the briefs and record and will not be argued today.

[00:00:43] Speaker 05:
They are Hernandez-Solarzano versus Garland, Kuhl versus Garland, Baines versus Garland, Medrano de Martinez versus Garland,

[00:00:54] Speaker 05:
and Diaz versus O'Malley.

[00:00:56] Speaker 05:
So all of those cases are submitted, and we have argument in one case.

[00:01:01] Speaker 05:
And if counsel would please come forward and let us know how much time you would like for your rebuttal.

[00:01:15] Speaker 01:
Good morning.

[00:01:15] Speaker 01:
Matthew Schwartz for the appellant.

[00:01:18] Speaker 01:
With the court's permission, I'll reserve three minutes for rebuttal.

[00:01:21] Speaker 05:
That's fine.

[00:01:22] Speaker 05:
Go ahead, please.

[00:01:24] Speaker 01:
Thank you.

[00:01:25] Speaker 01:
Good morning and may it please the court.

[00:01:28] Speaker 05:
Could you adjust the microphone as well, please?

[00:01:30] Speaker 01:
Is this better?

[00:01:31] Speaker 05:
That's much better.

[00:01:32] Speaker 05:
Thank you.

[00:01:33] Speaker 01:
Good morning and may it please the court.

[00:01:36] Speaker 01:
For more than 40 years, Tangle has held registered copyrights for its famous Tangle sculpture and its derivatives.

[00:01:45] Speaker 01:
In creating the copyrighted pieces, the sculptor made numerous artistic choices which together comprise a fixed, tangible, three-dimensional, kinetic sculpture that represents movement and infinity.

[00:02:01] Speaker 01:
the defendant's pieces reflect exactly the same choices and are unmistakably copies of the original.

[00:02:09] Speaker 03:
Is there anything in the seven copyrights that are at issue that indicates that Tangle has copyright protection or intends to assert copyright protection over all possible poses rather than the particular pose depicted in a copyright?

[00:02:25] Speaker 01:
So I think, Judge Simon, you've put your finger on exactly what the error is here, the fundamental error in the district court's analysis that infected everything else.

[00:02:36] Speaker 01:
The thing that is copyrighted is not the pictures.

[00:02:40] Speaker 01:
The thing that is copyrighted is the physical, tangible, three-dimensional kinetic sculpture which is capable of movement.

[00:02:47] Speaker 01:
The district court

[00:02:49] Speaker 01:
ignored all of the artistic choices that the sculptor had made and reduced the work to specific photographs of a 90-degree curved tubular structure.

[00:03:00] Speaker 01:
And as a result of that oversimplification, the court even held that Tangle had not alleged valid copyrights.

[00:03:07] Speaker 01:
That's something that they don't even defend.

[00:03:09] Speaker 03:
I mean, the district court at its core really said that what Tangle has here is an unprotectable idea, not protectable expression.

[00:03:18] Speaker 03:
to assess whether that was correct or incorrect, how does one distinguish an unprotectable idea from a protectable expression?

[00:03:30] Speaker 01:
This is the trick in the art of copyright law.

[00:03:34] Speaker 01:
And this is, by the way, why questions like this are not typically resolved at the pleading stage.

[00:03:41] Speaker 01:
An application of the extrinsic test, although it is ultimately

[00:03:45] Speaker 01:
a question of law for the court is not typically resolved at the pleadings.

[00:03:49] Speaker 01:
I think actually Judge Coe's decision in the Zombie case, the AMC Network case in the District Court talks about the Ninth Circuit's case law suggesting that to understand what is protected requires

[00:04:07] Speaker 01:
analytical dissection of the copyrighted work and expert opinion.

[00:04:12] Speaker 01:
That decision is at 2019 Westlaw 402.

[00:04:16] Speaker 02:
And I guess the court has told us that in order to get up to expression, original expression, that's often a pretty low bar.

[00:04:23] Speaker 02:
But I guess in starting with the use of the photos, so you identify in your brief six, seven maybe different distinguishing

[00:04:35] Speaker 02:
aspects of the element that add up to the work.

[00:04:41] Speaker 02:
And I think you can see that any one of them taken alone or even a couple of them taken alone would not themselves be copyrightable.

[00:04:50] Speaker 02:
It's the combination.

[00:04:51] Speaker 02:
Well, it is fact-intensive, so I would agree with you that one of them taken alone is almost certainly— Right, I'm not going to take you down the slippery slope because you have six or seven, but I guess my question is both in neither—let's start with the registration process.

[00:05:07] Speaker 02:
That's registrations there to provide notice to people of the scope of your claim in the work.

[00:05:16] Speaker 02:
Are those elements, those seven, that combination, that arrangement, that selection of those seven different aspects apparent in the photos that you use?

[00:05:31] Speaker 01:
I think that they are, and more importantly again, the thing that is copyrighted is the sculpture itself.

[00:05:41] Speaker 01:
So this is not like a patent case where all the specifications have to be laid out.

[00:05:45] Speaker 01:
The thing is entitled to copyright protection by virtue of existing in the universe, even separate and apart from registration.

[00:05:51] Speaker 01:
The registration simply protects it for enforceability.

[00:05:55] Speaker 01:
It's not necessary that the registration Enumerate the things that make it uniquely artistic.

[00:06:02] Speaker 02:
Okay, for example, what about the complaint?

[00:06:05] Speaker 02:
You don't provide in it that enumeration I was was unable in paragraph 43 you get into it and and I certainly appreciate having read some very long complaints your points about a concise statement of your allegations, but That list that you

[00:06:24] Speaker 02:
that's in your reply brief and your opening brief isn't in the complaint.

[00:06:29] Speaker 01:
I agree with you that the complaint also does not enumerate each and every artistic choice that went into the creation of the tango sculpture.

[00:06:39] Speaker 01:
And I'll answer your question, but I actually would like to get into what those artistic choices were.

[00:06:44] Speaker 01:
But the complaint, so you point out paragraph 43, which points out some of the specific choices that were copied in the infringing works.

[00:06:52] Speaker 01:
The critical thing is that the complaint attaches and incorporates the copyright itself.

[00:06:57] Speaker 01:
And the copyright is what we are seeking to enforce and what puts them on notice.

[00:07:04] Speaker 01:
There's no question that, at least at the pleading stage, that the defendants here were on notice of the Tangle sculpture and the Tangle copyright.

[00:07:13] Speaker 01:
We allege, for example, that in their internal videos for how to assemble the thing,

[00:07:19] Speaker 01:
They use the tagline that is lifted directly from Tangle's promotional materials.

[00:07:25] Speaker 05:
Do you believe that the copyright protects all colors?

[00:07:31] Speaker 01:
I believe that the color is not part of the copyright.

[00:07:36] Speaker 01:
And so any color variation would be a derivative work.

[00:07:40] Speaker 01:
Again, we get into at what point points of difference.

[00:07:43] Speaker 05:
The color pink is not protectable.

[00:07:46] Speaker 05:
You agree with that.

[00:07:47] Speaker 05:
The district court found that you agree with that finding.

[00:07:49] Speaker 00:
It's not part of the copyright.

[00:07:50] Speaker 00:
It's part of the trade.

[00:07:51] Speaker 05:
That's correct.

[00:07:51] Speaker 05:
And the chrome also chrome versus Matt.

[00:07:55] Speaker 05:
That's not protectable.

[00:07:56] Speaker 05:
You agree with that.

[00:07:57] Speaker 00:
That is not part of the copyright.

[00:07:59] Speaker 05:
OK.

[00:08:02] Speaker 05:
Sculptures made of interlocking pieces you agree with that or disagree with that one I agree with that and so let me okay So then you also agree with 90 degree curved tubular tubular pieces.

[00:08:13] Speaker 05:
That's also unprotectable

[00:08:14] Speaker 01:
No, no.

[00:08:15] Speaker 01:
I'm sorry.

[00:08:15] Speaker 01:
I didn't agree that the other thing was unpredictable either.

[00:08:18] Speaker 01:
I'm sorry.

[00:08:19] Speaker 05:
I just want to understand what you think is protectable elements and what are unprotected elements of your copyright.

[00:08:28] Speaker 05:
So color, pink, chrome, not protected, but sculptures made of interlocking pieces.

[00:08:34] Speaker 05:
You think that is a protected element of your copyright or not?

[00:08:37] Speaker 01:
What is protected is the combination of choices that the artist has made here.

[00:08:43] Speaker 01:
So I appreciate what the court is trying to do, which is the filtering out test that this court has talked about.

[00:08:49] Speaker 01:
But when we talk about a work of art,

[00:08:52] Speaker 01:
even though every particular element may be by itself unprotectable, the combination of them, the artist's choice to select a combination of them is protectable.

[00:09:01] Speaker 01:
This is the Nike case.

[00:09:03] Speaker 05:
But then you sound like you're agreeing with the district judge.

[00:09:07] Speaker 05:
The district judge found the selection, coordination, and arrangement of the 90-degree curved tubular sculptures was the protected element.

[00:09:17] Speaker 05:
But now it sounds like you're saying,

[00:09:20] Speaker 01:
It's more than that.

[00:09:21] Speaker 01:
It's more than that.

[00:09:21] Speaker 01:
So the idea here, which is not protectable, of course, is a 3D sculpture reflecting movement and infinity.

[00:09:30] Speaker 01:
The choices that the artist has made in order to turn that idea into the specific copyrighted tangle sculpture include, among other things, number one, having 17 or 18 segments.

[00:09:41] Speaker 01:
Number two, each segment is identical to one another.

[00:09:45] Speaker 02:
I'm aware of the list you have it in your briefs and time is short so I guess I how would you have the district court or us perform the filtering test the filtering under the extrinsic test so that we can ensure that we're not leading the district court on our road to Copywriting to protection for unprotectable elements.

[00:10:11] Speaker 02:
How should that work?

[00:10:12] Speaker 02:
We have the Nike case

[00:10:16] Speaker 02:
what filters out if it's not, we have to take them all together, but then we also have to look at them one by one.

[00:10:24] Speaker 02:
I'm just not sure how that's supposed to work, really, for either side.

[00:10:28] Speaker 01:
No, no, I agree with you, and I think it is both difficult and confusing, but what the court held in Riefmeister, the Nike case, was where you have a composition, in that case a photograph, where every artistic choice by itself is unprotectable, but together,

[00:10:44] Speaker 01:
It turns into something protectable.

[00:10:46] Speaker 01:
It's entitled to broad protection and the filtering out process doesn't really work that way.

[00:10:50] Speaker 01:
And you go to the substantial similarity test looking at whether

[00:10:55] Speaker 01:
The combination of choices the infringing product has made and the combination of choices the copyrighted artist has made are substantially similar.

[00:11:02] Speaker 03:
But how does that factor in the movability or malleability of this?

[00:11:07] Speaker 03:
Because if you want to look at all of the various choices that the artist made, well then you have a particular image that we see in the two-dimensional copyright photograph.

[00:11:20] Speaker 03:
But where does it say that all of the other possible expressions of that image are also entitled to receive copyright protection?

[00:11:29] Speaker 01:
It's not that they're all expressions are entitled to copyright protection.

[00:11:34] Speaker 01:
It's that the thing itself, which is movable, is entitled to copyright protection.

[00:11:39] Speaker 03:
You mentioned patent earlier.

[00:11:40] Speaker 03:
Is the thing itself patented?

[00:11:42] Speaker 03:
And I assume not.

[00:11:43] Speaker 03:
If not, is it patentable?

[00:11:45] Speaker 01:
There may be certain aspects that are patentable, and in this case we're in fact patented, the patent has since expired.

[00:11:54] Speaker 01:
But they go to the functional, not the artistic elements.

[00:11:57] Speaker 01:
That's what copyright is for, and this is fundamentally a work of fine art.

[00:12:01] Speaker 02:
How did the patent differ at all from the specification of the seven elements here?

[00:12:08] Speaker 02:
Of course, the record doesn't reflect this and I'm not... Well, and of course, you see our concern is the copyright statute Congress has told us that we need to make sure we can tell the difference between the two and we can't patent, we can't copyright things that patents are reserved for.

[00:12:27] Speaker 01:
Right.

[00:12:27] Speaker 01:
I mean, this court has held that the two are not mutually exclusive, but I believe, and we can certainly supplement the record if it would be helpful to the court,

[00:12:35] Speaker 01:
the patent did not enumerate all the artistic choices that I've talked about and simply focused on the functional mechanics of the device.

[00:12:43] Speaker 02:
Which of the elements are, you know, that it's joint, that it's 18 pieces, that there's 360 degree range of motion, those strike me as things that I would not be surprised to see in a patent.

[00:13:00] Speaker 01:
I don't think so, but I don't want to get beyond what I know, Your Honor.

[00:13:03] Speaker 05:
What is your trade dress?

[00:13:06] Speaker 05:
Is it the pink chrome color?

[00:13:07] Speaker 05:
Is it the size?

[00:13:09] Speaker 05:
Is it the configuration?

[00:13:11] Speaker 01:
This is alleged in paragraph 12, I believe.

[00:13:16] Speaker 01:
It is the product itself plus the pink chrome.

[00:13:21] Speaker 01:
It is the copyrightable choices plus the pink chrome.

[00:13:25] Speaker 03:
Let me ask you this.

[00:13:27] Speaker 03:
In your trade dress claim, which was asserted for the first time in the second amended complaint, the judge threw it out, but then gave you leave to replede.

[00:13:36] Speaker 03:
You then filed a notice of intent not to amend.

[00:13:39] Speaker 03:
And in that notice, Tangle said, plaintiff contends that amendment would be futile.

[00:13:46] Speaker 03:
Why would amendment be futile to further describe the trade dress claim?

[00:13:52] Speaker 01:
I think given the district court's reasoning on the copyright claim, although we could have further enumerated the trade dress, it would have then run headlong into all the court's holdings on copyright, which is to say that there's nothing protectable about the trade dress for the same reasons as the copyright.

[00:14:11] Speaker 01:
That error is going to end up infecting everything.

[00:14:13] Speaker 03:
Can't things that are not copyrightable be nevertheless protectable under trade dress law?

[00:14:18] Speaker 01:
In theory, yes.

[00:14:19] Speaker 03:
So why couldn't you replede to satisfy the district court's trade dress concerns and give better notice, more specific notice there, even if it might have not satisfied him on copyright questions?

[00:14:35] Speaker 01:
I think, and I'm mindful that I'm in rebuttal time, so I don't want to lose that opportunity.

[00:14:42] Speaker 01:
I think that we could have amended to cure some of the notice problems that the district court identified, but that that pleading would have, based on the district court's erroneous reasoning on the copyright claim, inevitably failed.

[00:14:55] Speaker 01:
In that procedure, this court endorsed in Edwards.

[00:14:57] Speaker 01:
In that case, the Rico claim was the main claim, even though there were other claims that could have been amended.

[00:15:02] Speaker 05:
the court said it was okay and paragraph 12 all you say is tangles distinctive pink chrome trade dress that's it

[00:15:10] Speaker 01:
I think we say in combination with the other artistic choices.

[00:15:13] Speaker 05:
No, you don't.

[00:15:14] Speaker 05:
You want me to quote it?

[00:15:15] Speaker 05:
As shown in the social media exchange above, Tangle's distinctive pink chrome trade dress is famous and recognized by consumers.

[00:15:22] Speaker 05:
The following images are examples.

[00:15:23] Speaker 05:
They currently offer genuine Tangle products in pink chrome.

[00:15:28] Speaker 01:
And then there are images of the products that reflect all the choices in the copyright.

[00:15:33] Speaker 01:
I mean, at base, just taking a step back for a second.

[00:15:37] Speaker 05:
Well, it was a patent case.

[00:15:38] Speaker 05:
You couldn't say, OK, here are some products.

[00:15:40] Speaker 05:
You figure out whether this is an embodiment or not.

[00:15:43] Speaker 05:
True.

[00:15:43] Speaker 05:
You couldn't do that.

[00:15:44] Speaker 01:
I could not do that.

[00:15:45] Speaker 05:
Yes.

[00:15:46] Speaker 05:
And I don't think you can do that in trade dress either.

[00:15:48] Speaker 01:
I think it is certainly true that we could have more specifically identified the constituent elements of the trade dress, but for pleading purposes, we identified the pink chrome, we show images of the product.

[00:16:07] Speaker 01:
This is a case where the product itself is the trade dress.

[00:16:10] Speaker 01:
It's all of the artistic choices in the product, and this court has endorsed

[00:16:14] Speaker 01:
trade rest where the trade rest is the product itself.

[00:16:17] Speaker 01:
You then get into a complicated discussion of what's functional versus non-functional.

[00:16:21] Speaker 01:
But the court has endorsed that approach, and I would suggest it's appropriate here.

[00:16:26] Speaker 01:
I now have eaten into my- I'll give you a couple of minutes for rebuttal.

[00:16:33] Speaker 01:
Okay.

[00:16:33] Speaker 01:
Thank you very much.

[00:16:33] Speaker 05:
Anything further from my colleagues?

[00:16:36] Speaker 05:
No.

[00:16:36] Speaker 05:
Okay.

[00:16:36] Speaker 05:
Thank you.

[00:16:37] Speaker 05:
We'll give you two minutes for rebuttal.

[00:16:38] Speaker 01:
Thank you.

[00:16:58] Speaker 04:
May it please the court, Richard Seibert from Gordon and Reese for the appellee, Aritzia.

[00:17:06] Speaker 04:
I'd like to respond first to one of the questions that your honors just put to Appellants Council, and that is, could these designs be patented?

[00:17:19] Speaker 04:
And the answer is yes.

[00:17:22] Speaker 04:
They would qualify for a design patent,

[00:17:25] Speaker 04:
but just like the copyrights here, only for the specific design, just as the copyright only protects the specific configuration.

[00:17:36] Speaker 02:
Is your argument, Mr. Seibert, that the, I guess how do we deal with the fact that this is, the work is dynamic and is supposed to be dealing, is capable of being made into different poses?

[00:17:53] Speaker 02:
Is your argument that only the specific poses in the copyright registry can be at issue if anything can be copyrightable?

[00:18:08] Speaker 04:
Yes, because the movement in this case is not a work of authorship.

[00:18:15] Speaker 04:
It is not the result of the composer, as in a dance choreography.

[00:18:21] Speaker 02:
Well, not the movement, but I guess, so let's take the seven elements here that your friend is arguing are selected and arranged to provide a copyrightable work.

[00:18:37] Speaker 02:
that it's tubular, closed, in a torus shape, which is a specific form of macaroni-type shape.

[00:18:46] Speaker 02:
17 to 18 pieces, uniform, joined, each of them turning 360 degrees.

[00:18:53] Speaker 02:
And your client's use includes all of those elements, right?

[00:18:59] Speaker 02:
It does.

[00:19:03] Speaker 02:
Do we have any other case where you could describe a work as containing six or seven identical elements?

[00:19:12] Speaker 02:
I mean, down to the 17 or 18 pieces is what your client shipped out to its stores that have been arranged in a particular way, not arranged in terms of posed, but arranged in terms of combinations selected for those elements that have satisfied the extrinsic test?

[00:19:30] Speaker 04:
Well, those are the elements that must be filtered out.

[00:19:35] Speaker 04:
You cannot, for example, you cannot copyright geometric shapes.

[00:19:41] Speaker 04:
There's a slew of these.

[00:19:42] Speaker 02:
Okay, but a basketball held by Michael Jordan in the air is a geometric shape, but once it's in his hand and he's doing the splits and it's, you know, moving towards a, right, that's what we've warned against in terms.

[00:19:56] Speaker 02:
We can't allow the filtering at the pleating stage

[00:20:00] Speaker 02:
to consume the selection and arrangement criterion that ultimately produces the work.

[00:20:06] Speaker 04:
And the particular pose of Michael Jordan doing the splits, holding the basketball in just that way, would be copyrightable.

[00:20:16] Speaker 04:
But putting the questions of personality and

[00:20:22] Speaker 04:
rights of celebrities to the side.

[00:20:24] Speaker 02:
But the pose is just one of the elements.

[00:20:25] Speaker 02:
Here they're not claiming the pose.

[00:20:28] Speaker 02:
You're arguing that they can only claim the pose.

[00:20:30] Speaker 02:
But there are these seven elements that if you had to write a description of the works that you, your client,

[00:20:38] Speaker 02:
showed and the works that Tangle makes.

[00:20:43] Speaker 02:
I'm not sure how you could write a paragraph describing both of them other than scale and where they are displayed that would be different in any way.

[00:20:53] Speaker 04:
Well, this comes back full circle, Your Honor, because it's not a patent.

[00:20:58] Speaker 04:
You don't set forth the specifications in a copyright.

[00:21:02] Speaker 04:
You make a deposit in the Library of Congress.

[00:21:06] Speaker 04:
and that deposit identifies what is copyrighted.

[00:21:12] Speaker 02:
Now there is... So it's impossible to copyright things that move.

[00:21:16] Speaker 02:
That would take the Calder sculpture or the 7th or the Chicago Garden out.

[00:21:21] Speaker 04:
I believe the holding of the Kelly case was that the Calder mobile

[00:21:29] Speaker 04:
was sufficiently fixed so that it was copyrightable.

[00:21:33] Speaker 04:
They did not hold that the movement itself was copyrightable.

[00:21:37] Speaker 05:
But the pieces are constantly in motion.

[00:21:40] Speaker 05:
So why doesn't that stand for the proposition that it doesn't have to be a specific frozen configuration, that it can have movable pieces?

[00:21:49] Speaker 04:
In the Kelly case, they were actually referring to the Calder mobile in the negative.

[00:21:54] Speaker 04:
in the sense that they held a garden, didn't qualify for copyright protection.

[00:22:01] Speaker 02:
But your claim is that the word fixed in copyright law requires that it can't move?

[00:22:07] Speaker 04:
No, it can move.

[00:22:09] Speaker 04:
But whatever it moves to, you have to file a separate copyright for that particular pose.

[00:22:17] Speaker 04:
There's no case I know that holds you can copyright the movement itself.

[00:22:23] Speaker 02:
We've got cases that involve music, photos, all sorts of things that we try to break down and maybe filter out appropriately the elements.

[00:22:39] Speaker 02:
And what we're understanding, not in the way of a patent specification, what we're trying to understand is does the selection and arrangement of those elements not, I don't think necessarily an oppose, but does that provide a copyrightable work that is substantially similar to the allegedly infringing use?

[00:22:57] Speaker 04:
If I may, Your Honor, let me give you an example or a hypothetical.

[00:23:03] Speaker 04:
You could have a video of a child playing with one of these tangled toys.

[00:23:11] Speaker 04:
I've got a bunch right here.

[00:23:13] Speaker 04:
You could have a video of the child changing the shape and moving it.

[00:23:18] Speaker 02:
Okay, what about if a child's playing with a doll, we've held the dolls that move, and your friend has cited cases involving

[00:23:26] Speaker 02:
Lego minifigures, that those move and they move in particular ways, with particular joints arranged in particular ways.

[00:23:35] Speaker 02:
So it can't be that the mere fact that the work itself can be manipulated defeats the claim.

[00:23:42] Speaker 04:
I'm sorry, I couldn't quite hear what you said.

[00:23:45] Speaker 02:
I mean, are you contending that if the exact poses aren't specified, the mere fact that the work can be manipulated defeats copyrightability?

[00:23:55] Speaker 04:
I'm saying that when you copyright something, you have to copyright the particular configuration.

[00:24:02] Speaker 05:
You cannot copyright the movement unless it's... Well, no one's asking that the movement itself be copyrighted, but it's the expression of various pieces put together that are movable.

[00:24:12] Speaker 03:
Oh, sure.

[00:24:13] Speaker 03:
Right?

[00:24:13] Speaker 05:
It's like the Lego.

[00:24:14] Speaker 05:
You can move the head, you can move the arms, right?

[00:24:17] Speaker 05:
And no one is saying copyright the movement itself.

[00:24:19] Speaker 05:
It's just the expression of putting these particular items together that are movable.

[00:24:24] Speaker 04:
That's correct, but what was copyrighted in Lego was the particular sculpture, the expression on the face, the shape of the heads.

[00:24:34] Speaker 04:
You cannot do that in the context of these sculptures because they're unprotectable elements.

[00:24:40] Speaker 04:
Geometric shapes are not protected.

[00:24:45] Speaker 02:
The head is a cylinder.

[00:24:46] Speaker 02:
The body is a trapezoid.

[00:24:49] Speaker 02:
Maybe I'm thinking of the wrong minifigures here.

[00:24:52] Speaker 02:
I don't think it just turned on the fact that there are little faces drawn on them or that there are hard hats.

[00:24:58] Speaker 02:
It was that there's a particular kind of distinctive shape.

[00:25:03] Speaker 04:
Sure, it was the bullet form of the head, for example.

[00:25:07] Speaker 04:
You are correct.

[00:25:08] Speaker 04:
But in the context of these sculptures, Judge White across the bay found that the geometric shapes, the 90 degree angle, the similar axis.

[00:25:20] Speaker 05:
But in the Lego example, you wouldn't require Lego to get a copyright with the left arm up, a copyright with the right arm up, a copyright with the head twisted to the left.

[00:25:29] Speaker 05:
You wouldn't require

[00:25:30] Speaker 05:
that level of minutiae in terms of copywriting every single pose, correct?

[00:25:36] Speaker 05:
So why would you do that here?

[00:25:38] Speaker 05:
These are movable pieces.

[00:25:40] Speaker 04:
Go ahead, please.

[00:25:42] Speaker 04:
What would be infringed in the Lego case is the particular artistic expression, the recognizability of the Lego figure.

[00:25:53] Speaker 04:
It's the sculpture of the figure itself.

[00:25:55] Speaker 02:
But does that turn on the fact that it's a person rather than a

[00:26:01] Speaker 02:
loop and I think some degree it does your honor because to what degree because I guess the concern is is if we again we've got seven identical elements that Tangle has has as identified here that are indistinguishable even down to the number of pieces in the set in most cases and I guess the you know take this out of

[00:26:26] Speaker 02:
this particular, if we're trying to write a rule here that says you have seven identical elements, sure, no one of which may be protectable, but that are arranged in a distinctive way, we have to worry about music, we have to worry about poetry, we have to worry about some software code,

[00:26:48] Speaker 02:
How are you not asking us to adopt a rule that allows us to filter out all seven of those elements in combination, in arrangement, in selection, and leave any future copyright owner without a claim?

[00:27:02] Speaker 04:
I am not asking you to do that, Your Honor.

[00:27:04] Speaker 04:
What I am saying is that when you take those seven elements and you combine them in a particular way, the particular way you combine and configure them, that is copyrighted.

[00:27:16] Speaker 02:
And what is, help me in terms of what's the, in terms of a case or what is distinctive about

[00:27:23] Speaker 02:
That way, because of course once we get to kind of that way, it seems like we're leaving the extrinsic test and entering in the world of maybe jury questions.

[00:27:34] Speaker 02:
What's special about that combination of seven elements combined that would be different from a more identical Michael Jordan photo or a Lego figure?

[00:27:44] Speaker 04:
Because that is what the author copyrighted, and that is why Tangle filed nine separate copyright registrations for nine separate poses.

[00:27:54] Speaker 02:
But that's back to, I think, Judge Koskinson, that you're now only talking about specific poses rather than the way in which the elements themselves can be manipulated.

[00:28:04] Speaker 04:
That's right.

[00:28:05] Speaker 04:
Movement itself cannot be copyrighted unless it's fixed by the author in the context of, for example,

[00:28:11] Speaker 04:
dance choreography, which is trying to compare apples to oranges.

[00:28:14] Speaker 03:
If we take one of these copyrighted poses and move it just slightly, just one of the pieces slightly, does that raise the possibility of substantial infringement?

[00:28:27] Speaker 04:
I think it, hypothetically, I think it would raise the possibility of substantial similarity, or in this case, because Judge White properly found that the copyright protection is thin, virtual identity.

[00:28:43] Speaker 04:
It's a question of degree.

[00:28:45] Speaker 04:
How much are you going to move it?

[00:28:46] Speaker 03:
And I didn't see, how could it possibly be entitled to only thin protection, given that I really do think, and I didn't do the math on this,

[00:28:55] Speaker 03:
But there's probably tens of thousands of different poses that can be made.

[00:28:59] Speaker 04:
Because I think that the vast majority of those poses are inconsequential variations.

[00:29:05] Speaker 04:
Some of them might not even be apparent to the naked eye.

[00:29:09] Speaker 04:
Judge White found that there are simply only so many ways that you can manipulate these figures in the context of 90-degree angles and the similar axes.

[00:29:23] Speaker 04:
And that's analogous to findings that this court has made in, for example, Mattel, the Bratz case, the Sky Vodka case.

[00:29:34] Speaker 03:
I want to get back to a fundamental point that I asked your friend.

[00:29:39] Speaker 03:
The court below found that the plaintiff's designs and copyrights were only of an idea, not an expression.

[00:29:52] Speaker 03:
How do we properly distinguish?

[00:29:53] Speaker 03:
I've not seen any case law that articulates, in a way that I can understand, the difference between an idea that is unprotectable and an expression that is.

[00:30:04] Speaker 03:
Can you give me something?

[00:30:06] Speaker 04:
Sure.

[00:30:06] Speaker 04:
And maybe the best way to do it is simply by example.

[00:30:12] Speaker 04:
Cubism is an idea.

[00:30:14] Speaker 04:
George Brock was the first artist to explore it.

[00:30:19] Speaker 03:
Now turn this into an articulable rule, please.

[00:30:22] Speaker 03:
I get the examples.

[00:30:23] Speaker 03:
I did the same thing myself with Modrian and Picasso and Jeffrey Gibson.

[00:30:28] Speaker 03:
I get all that.

[00:30:30] Speaker 03:
But I can't articulate a rule yet.

[00:30:33] Speaker 04:
I would suggest that the articulatable, if that's a word, rule is that it is the particularized expression of an idea that you can protect

[00:30:47] Speaker 04:
And that is a fundamental concept, not just of copyright law, but throughout intellectual property.

[00:30:54] Speaker 02:
So to take the cubist piece, so let's say, I think the counter argument then is that a canvas with a pipe on a table whose legs are in a particular cubist way are facing both like 90 degrees one way and 180 degrees the other.

[00:31:16] Speaker 02:
and seven different ways where they are identical.

[00:31:22] Speaker 02:
And it seems to me that I'd be looking at pretty much the same painting then.

[00:31:26] Speaker 04:
I don't think you would be looking at the same painting once you filter out the unprotectable elements.

[00:31:33] Speaker 02:
Well, a pipe is unprotectable.

[00:31:34] Speaker 02:
A table is unprotectable.

[00:31:36] Speaker 02:
I suspect, right, cubism would be the fact that you can view the same figure from multiple different angles is unprotectable.

[00:31:45] Speaker 02:
But if it was the same seven things that were portrayed in the picture in a cubist style, why isn't that this case?

[00:31:53] Speaker 04:
Well, your implication is correct, that you can take multiple unprotectable elements and your particular arrangement of them can then be protectable expression.

[00:32:06] Speaker 04:
That's the same rule in patent law.

[00:32:09] Speaker 04:
But then that gets to the question of substantial similarity

[00:32:14] Speaker 04:
or in the case of thin copyright protection, virtual identity.

[00:32:19] Speaker 04:
You look at it, you perform the test, and that's what judge will admit.

[00:32:22] Speaker 02:
And that's a question for the jury, is it not?

[00:32:24] Speaker 04:
It is not, Your Honor.

[00:32:25] Speaker 02:
Well, then you're talking about filtering out all seven elements.

[00:32:28] Speaker 02:
The extrinsic test is where we're going to slice and dice and take them all away so that they're left with nothing.

[00:32:34] Speaker 02:
But if it turns to the selection and the arrangement in a particular way, where we haven't filtered out all those elements, and as we say, we can make copyrightable work with seven completely unprotectable elements, it just strikes that that might be on the intrinsic side.

[00:32:51] Speaker 04:
Well, I'd respectfully submit that under this circuit's precedent, principally the Rentmeister case, that it is within the province of the court when it has the copyright registration and the accused item in front of it to perform the extrinsic test.

[00:33:09] Speaker 04:
And that is not taking anything away from the jury.

[00:33:11] Speaker 04:
You don't get to the subjective test.

[00:33:14] Speaker 04:
You don't get to the intrinsic.

[00:33:20] Speaker 04:
assessment if you can't get past that first hurdle and in this case you can't.

[00:33:25] Speaker 04:
You got the same thing here from my worthy opponent that Judge White got across the bay.

[00:33:32] Speaker 04:
They were asked repeatedly, what is the protectable expression?

[00:33:36] Speaker 04:
What are you claiming here?

[00:33:37] Speaker 04:
What's copyrighted?

[00:33:38] Speaker 04:
And all Judge White got and all you got here was a tautological circular argument, well it's the sculpture.

[00:33:47] Speaker 02:
No pun intended.

[00:33:48] Speaker 04:
No pun intended.

[00:33:51] Speaker 05:
Do you think Judge White ruled on the fixation requirement?

[00:33:56] Speaker 05:
And if so, how do you think that fit into his overall analysis?

[00:34:00] Speaker 04:
I don't think he did, but I know I'm well over my time.

[00:34:04] Speaker 04:
But if I could just briefly comment.

[00:34:06] Speaker 05:
Do you think it didn't fit into his analysis at all?

[00:34:10] Speaker 04:
I don't recall that that's what he focused on.

[00:34:14] Speaker 04:
But the fixation requirement

[00:34:18] Speaker 04:
Well, no, he did, because he said it has to be fixed in this particular configuration.

[00:34:24] Speaker 04:
He looked at originally the nine registrations and then ultimately the seven registrations in front of him, and that's the proper analysis.

[00:34:34] Speaker 03:
I would like to ask one trade dress question, and that is, if we conclude, and I'm trying to understand the scope of the Edwards decision, if we conclude that it would not have been futile

[00:34:48] Speaker 03:
to replede the trade dress claim, which was only alleged for the first time in the second amendment complaint.

[00:34:56] Speaker 03:
What, if anything, would be the legal consequence of that?

[00:34:59] Speaker 03:
Or should a plaintiff always just be entitled, even if amendment would not be futile, to simply say, I decline amendment.

[00:35:08] Speaker 03:
I think you got it wrong, district court.

[00:35:09] Speaker 03:
I'll take that up on appeal.

[00:35:13] Speaker 04:
I think that were you to so rule,

[00:35:17] Speaker 04:
that the, um, that tangled the appellant here, the plaintiff below would have the same opportunity that Judge White

[00:35:27] Speaker 04:
gave them to reallege if they could.

[00:35:31] Speaker 04:
But that begs a more, I think, a more significant question, which is, could you allege, consistent with the pleading requirements, consistent with Rule 11, could you allege the required elements of trade dress, non-functionality

[00:35:48] Speaker 04:
inherent distinctiveness, secondary meaning.

[00:35:51] Speaker 04:
On the facts of this case, as an attorney, I'd have severe reservations about whether I could do so.

[00:35:57] Speaker 05:
But if you look at that comparison that they have at the beginning of their opening brief, it is pretty strikingly similar, isn't it?

[00:36:03] Speaker 04:
I don't think it's strikingly similar.

[00:36:05] Speaker 05:
Well, what if I tell you it is to me?

[00:36:07] Speaker 04:
I would respectfully respond that what you are seeing as strikingly similar is a style, the same way as

[00:36:20] Speaker 04:
Claude Monet Impressionist painting and a Camille Pissar Impressionist painting.

[00:36:26] Speaker 04:
They're both gauzy pastels, garden scenes.

[00:36:31] Speaker 04:
They look strikingly similar.

[00:36:32] Speaker 04:
Different artists.

[00:36:34] Speaker 04:
They could each get their own copyright on it.

[00:36:36] Speaker 04:
It's a style.

[00:36:37] Speaker 04:
It's not a configuration.

[00:36:38] Speaker 04:
It's not fixed.

[00:36:40] Speaker 04:
Style is not fixed.

[00:36:41] Speaker 04:
Movement is not fixed.

[00:36:47] Speaker 05:
Is there a fixation requirement in trade dress, though?

[00:36:50] Speaker 05:
It just is, you know, likelihood of confusion to the consumer, right?

[00:36:54] Speaker 04:
Oh, I'm sorry.

[00:36:54] Speaker 04:
No, in trade dress, there is none.

[00:36:57] Speaker 04:
No.

[00:36:57] Speaker 04:
But the requirements to establish trade dress, protectable trade dress in the first place, are fairly exacting.

[00:37:05] Speaker 04:
And none of the elements were adequate.

[00:37:09] Speaker 05:
I don't recall a fixed style, fixed movement requirement in trade dress, right?

[00:37:13] Speaker 05:
It's likelihood of confusion to the consumer.

[00:37:15] Speaker 04:
That's correct.

[00:37:16] Speaker 04:
It's a subvariant of trademarks.

[00:37:18] Speaker 03:
Then back to my point, then, if Tangle could have repled a trade dress claim, should there be any legal consequence from their having declined that opportunity?

[00:37:33] Speaker 04:
Sure.

[00:37:33] Speaker 04:
Waiver.

[00:37:36] Speaker 04:
And how's that consistent with Edwards?

[00:37:39] Speaker 04:
I can't answer that off the top of my head.

[00:37:41] Speaker 04:
Fair enough.

[00:37:42] Speaker 05:
All right, any further questions?

[00:37:45] Speaker 04:
OK, thank you very much.

[00:37:46] Speaker 04:
So my 10 pages of prepared argument just gone.

[00:37:49] Speaker 04:
Thank you.

[00:37:50] Speaker 05:
Thank you.

[00:37:50] Speaker 04:
I have the toys here, by the way, if you want to see them.

[00:37:55] Speaker 05:
No, thank you.

[00:38:05] Speaker 05:
Go ahead, please.

[00:38:07] Speaker 01:
Thank you.

[00:38:08] Speaker 01:
Going first to the fixation requirement and the movement inherent in these pieces.

[00:38:14] Speaker 01:
First of all, there's no question that fixation was part of the district court's analysis on page seven of the order.

[00:38:21] Speaker 01:
He essentially holds that a piece must be unmovable

[00:38:26] Speaker 01:
in order to be protected by copyright, and you can only protect certain poses.

[00:38:30] Speaker 01:
That is obviously incorrect.

[00:38:32] Speaker 01:
Fixation means that something is tangible and not ephemeral, but not that it's not capable of movement.

[00:38:38] Speaker 01:
You all looked at the examples of the Lego figurines or the Bratz dolls.

[00:38:42] Speaker 01:
No question that those things are subject to copyright, and it's not that you need a separate copyright for every arm position or head position, which would not just be up or down, but it would be thousands and really an infinite number.

[00:38:54] Speaker 03:
Do you agree with your friend

[00:38:56] Speaker 03:
the Tangle sculptures could qualify for a design patent?

[00:39:02] Speaker 01:
I don't know the answer to that.

[00:39:04] Speaker 03:
Let me ask a different question.

[00:39:06] Speaker 03:
If I were to throw basically some scatter paint and drippings on a canvas Jackson Pollock style, and the Jackson Pollock estate would be suing me for copyright infringement,

[00:39:23] Speaker 03:
my defense would be, well, that's just a style.

[00:39:26] Speaker 03:
It's not an idea.

[00:39:28] Speaker 03:
Sorry, it's just a style.

[00:39:29] Speaker 03:
It's not an expression.

[00:39:30] Speaker 03:
And mine would look very different.

[00:39:31] Speaker 03:
I'm positive.

[00:39:34] Speaker 03:
How would we analyze that problem?

[00:39:37] Speaker 01:
Well, I think unless it was quite stark, it might well be a factual question.

[00:39:42] Speaker 01:
For example, if you set out to create a faithful reproduction of a Jackson Pollock.

[00:39:46] Speaker 01:
No, no, no.

[00:39:48] Speaker 03:
I just want to throw some

[00:39:50] Speaker 03:
drippings and scattering and some basically action paint on this.

[00:39:54] Speaker 03:
I'm not trying to copy any of his actual paintings, but I am deliberately trying to copy his style.

[00:40:02] Speaker 01:
I think it's okay to copy his style.

[00:40:05] Speaker 03:
How do we then articulate that when the plaintiff who's suing me would say, no, that's more than just style.

[00:40:13] Speaker 03:
You've copied his copyrightable expression.

[00:40:16] Speaker 01:
How do you deal with that?

[00:40:17] Speaker 01:
It might well come down to a factual question.

[00:40:20] Speaker 01:
I mean, my friend made a concession in response to Your Honor's question, which I think with respect is determinative.

[00:40:25] Speaker 01:
He said, Your Honor asked, if you have this pose in a picture and they move it just slightly, and he said, well, yes, that would raise a question of fact as to substantial similarity.

[00:40:35] Speaker 01:
And so now we're in fact land.

[00:40:36] Speaker 01:
We're in the question of what degree of difference in the pose is substantial similarity or not substantial similarity.

[00:40:43] Speaker 01:
That is the province of, you know, at least discovery if not the jury.

[00:40:48] Speaker 01:
Here, Judge Johnson, to your point, we have an allegation that the defendant's products faithfully reproduced every single important artistic decision that the creator has made here.

[00:41:00] Speaker 01:
And the only points of distinguishment really are

[00:41:04] Speaker 01:
size or size and scale.

[00:41:07] Speaker 01:
It's proportionally the same, but just the size.

[00:41:10] Speaker 01:
So it's like, if you took my photograph and just blow it up five times, you would never have an argument that that is not as a matter of law on the pleadings substantially similar.

[00:41:19] Speaker 02:
But it's on the pleadings.

[00:41:22] Speaker 02:
Did you have to plead all six or seven of those?

[00:41:24] Speaker 02:
And did you?

[00:41:25] Speaker 01:
I don't think so.

[00:41:26] Speaker 01:
Again, I don't think it is necessary at the pleading stage to enumerate all of the artistic decisions.

[00:41:33] Speaker 01:
This again goes to Judge Coe's decision in AMC.

[00:41:36] Speaker 01:
That is, especially in matters of art, quintessentially a question of fact that requires analysis of the protectable design and often expert opinion.

[00:41:48] Speaker 01:
And I think it's very dangerous to look at a pleading, especially when we're talking about something that is both three-dimensional and movable, and say, I can look at pictures and decide on the pleadings as a matter of law that there is no possible way that these two things are substantially similar.

[00:42:05] Speaker 01:
That was, with respect, error.

[00:42:08] Speaker 01:
And let me just say one final point on that.

[00:42:10] Speaker 01:
There is a suggestion in my friend's brief at page 23 that some deference is owed to the district court's opinion.

[00:42:15] Speaker 01:
They cite a decision suggesting the decision should be reviewed for clear error.

[00:42:21] Speaker 01:
The case is Yanouche.

[00:42:22] Speaker 01:
Those cases, and I'm sure he would tell you as a mistake, those cases deal with dismissal as a Rule 16-F sanction, which are reviewed for abuse of discretion.

[00:42:32] Speaker 01:
The district court's decision here is not deserving of any deference.

[00:42:35] Speaker 01:
This court reviews it de novo.

[00:42:37] Speaker 01:
And when you look at the allegations in the complaint,

[00:42:41] Speaker 01:
When you look at the undisputed registered copyright that has existed for more than 40 years, and by the way, has never been used abusively to shut down every potential iteration of sculptures involving geometric shapes, what you have are infringing products that are essentially scaled up knockoffs of the copyright product.

[00:43:06] Speaker 01:
That, at the pleading stage, is more than sufficient.

[00:43:10] Speaker 03:
Let me ask one more question, if I may.

[00:43:12] Speaker 03:
I know the Kelly case about gardens.

[00:43:15] Speaker 03:
I know the Mattel case about Lego.

[00:43:17] Speaker 03:
I know the transformer case.

[00:43:19] Speaker 03:
What do you think is the most analogous precedent anywhere in the country about the movability issue that we're struggling with?

[00:43:30] Speaker 01:
Well, again, with respect, I don't know it's something that you need to struggle with.

[00:43:35] Speaker 01:
There is no dispute that movable sculptures are subject to copyright.

[00:43:41] Speaker 01:
The defendants conceded this in the district court.

[00:43:44] Speaker 01:
They pointed out that the copyright office has registered more than 10,000 kinetic sculptures.

[00:43:49] Speaker 01:
So the fact that movability

[00:43:51] Speaker 01:
does not plainly defeat copyright ability.

[00:43:54] Speaker 01:
But if you want to ask me for the best cases on that, there aren't a lot that discuss that specifically.

[00:44:00] Speaker 01:
Certainly the Kelly case distinguishes movement that matters and movement that doesn't matter.

[00:44:05] Speaker 01:
You have the example of a Calder sculpture where the movement is

[00:44:09] Speaker 01:
part of the design and still copyrightable.

[00:44:12] Speaker 01:
You have the doll cases, whether it's Lego in Connecticut or the Bratz case, the Mattel case, here in the Ninth Circuit where you have products that are capable of movement and no one would ever say that the fact that they can move renders them unprotected.

[00:44:29] Speaker 01:
And their argument, at least as presented here, goes further, which suggests not just movement but just orientation.

[00:44:35] Speaker 01:
would make a difference to copyrightability.

[00:44:37] Speaker 01:
That is not correct.

[00:44:38] Speaker 01:
The thing that is copyrighted is a specific object where the object is capable of movement and that is one of the artistic choices that is entitled to protection, not the fact of movement.

[00:44:50] Speaker 01:
No one's trying to copyright movement.

[00:44:52] Speaker 01:
We're copywriting, we did copyright, a three-dimensional kinetic sculpture that reflects at least six or seven, I could have given you nine, separate choices that the artist has made that together

[00:45:03] Speaker 01:
comprise a representation of movement in infinity.

[00:45:07] Speaker 01:
As you point out, you could pose that particular sculpture thousands and thousands of ways, and in fact, you could depict, even through geometric shapes, movement in infinity hundreds of thousands of ways.

[00:45:19] Speaker 01:
There's no case that holds abstract art depicting a concept like this is entitled to thin protection.

[00:45:25] Speaker 01:
That was inappropriate.

[00:45:27] Speaker 01:
This is a work of art.

[00:45:28] Speaker 01:
It has persisted for 40 years.

[00:45:30] Speaker 01:
The defendant's products are knockoffs.

[00:45:34] Speaker 01:
That at least has to be sufficient at the pleading stage.

[00:45:38] Speaker 01:
We're not asking for a broad ruling.

[00:45:40] Speaker 01:
All this court needs to decide is that

[00:45:43] Speaker 01:
The registrations of copyright attached to the complaint are, as alleged, valid.

[00:45:48] Speaker 01:
And there is a sufficient question on the pleadings as to substantial similarity that a motion to dismiss not be granted.

[00:45:57] Speaker 01:
Everything else, again, to the AMC Network's decisions point, can be the subject of factual development, analysis, and expert opinion.

[00:46:07] Speaker 01:
Thank you.

[00:46:09] Speaker 05:
Thank you both for your very helpful arguments today.

[00:46:11] Speaker 05:
We are adjourned.