[00:00:04] Speaker 03: Okay, the next case. [00:00:12] Speaker 03: The next case on the argument calendar is, um, on me versus, um, and to one more. [00:00:32] Speaker ?: Yeah. [00:00:34] Speaker 03: went to Lamar Hill and so. [00:01:00] Speaker 03: In this case, it's 15 minutes per side, and appellant can commence. [00:01:16] Speaker 01: Your Honors, and may it please the Court, my name is Andrew Grimm, representing Plaintiff Appellant Rodney Woodland in this copyright infringement dispute. [00:01:25] Speaker 01: I respectfully request leave for two minutes for rebuttal, Your Honors. [00:01:32] Speaker 03: Hey, watch your time on the clock. [00:01:38] Speaker 01: Thank you, your honor. [00:01:39] Speaker 01: And the fundamental fact here and what's central to this case is the serial copying, that the defendant here copied over 10 photographs made by plaintiff-appellant Rodney Woodland. [00:01:56] Speaker 01: And that serial copying, which gets short shrift in the answering brief, is a fundamental fact here because it [00:02:03] Speaker 01: First, distinguishes this case from a number of the authorities that are cited by the other side. [00:02:10] Speaker 01: And second, it has massive significance to both the Copping Doctrine and the Similarity Doctrine. [00:02:18] Speaker 01: And I can address those in either order, if Your Honors would like me to. [00:02:24] Speaker 01: So looking at the copying doctrine, this doctrine is fundamentally a factual doctrine. [00:02:33] Speaker 01: And it asks if we think that the similarities found in the works that issue in the case are coincidental or rather are the result of copying by the defendant of the plaintiff's works. [00:02:47] Speaker 01: And the serial copying at issue here is a strong point against the coincidences here. [00:02:56] Speaker 01: I would note, first of all, that Mr. Woodland did assert facts of copying at paragraphs 11 and 12 of the operative complaint at ER 129, as well as ER 136, paragraphs 16 and 17. [00:03:10] Speaker 01: He's noting that defendant, in fact, went on his [00:03:13] Speaker 01: Instagram which was available, copied it, and then did so. [00:03:18] Speaker 02: So I believe that is sufficient. [00:03:20] Speaker 02: I'm sorry, let me just stop you there, counsel. [00:03:23] Speaker 02: Is there any evidence in this case other than a conclusory statement that the defendant went on the plaintiff's Instagram? [00:03:38] Speaker 01: Well, Your Honor, I would note that the legal conclusion would just be the fact of comping itself. [00:03:46] Speaker 02: But I mean, my understanding, correct me if I'm wrong. [00:03:50] Speaker 02: is that your factual proposition for accessing your client's photographs was that both your client and the defendant had an Instagram account. [00:04:10] Speaker 02: Is there more factually, I mean, putting aside the issue of similarity and the canard about somebody inventing owed to a Grecian urn on their own, but putting all that aside, is there any evidence that you proffered as to access other than both parties had an Instagram account? [00:04:35] Speaker 01: Yes, Your Honor. [00:04:36] Speaker 01: So first note that we're on a 12b6 stage, so the operative complaint is binding on the case. [00:04:41] Speaker 01: The second thing I would note is trial counsel did allege that the defendant not just is on Instagram in some general way, but that he specifically went to the Instagram of the plaintiff. [00:04:56] Speaker 01: So that is distinct from just saying that they're both on Instagram. [00:05:00] Speaker 01: And I would also note, Your Honors, that one of the major errors that the district court made is conflating Instagram with just being online generally, because there's a fundamental difference. [00:05:12] Speaker 01: When you open a web browser and nothing is presented to you necessarily directly until you go to a search engine, [00:05:19] Speaker 01: and start typing and requesting it. [00:05:21] Speaker 01: But that's fundamentally different than being on a platform that has a highly complex algorithm that is trying to direct information that may be of interest specifically to you that's individualized and personalized to you. [00:05:35] Speaker 01: So the district court made the fundamental factual error of conflating a social media platform that is trying to deliver you information, whether or not you asked for it, [00:05:47] Speaker 01: from latent information on the web. [00:05:50] Speaker 01: And that's about as basic a technological and factual error as you can get. [00:05:55] Speaker 01: But suppose, your honor, you think the Twomblyik ball requires more than that. [00:05:58] Speaker 01: I would note, what someone going on someone's Instagram is not a legal conclusion in the Twomblyik ball style. [00:06:05] Speaker 01: That's a factual assertion. [00:06:07] Speaker 01: And so that alone I think suffices on copying because there's nothing the Supreme Court says in Twombly Iqbal or in this court's authority on pleading that you need to go further unless you're talking about inferences of malintent and the Iqbal decision. [00:06:24] Speaker 01: But Your Honor, I think there are a lot of additional facts because we're asking ourselves fundamentally, do we think this is just mere coincidence? [00:06:33] Speaker 01: And so you have to sit. [00:06:33] Speaker 01: Do I think that 10 photos that have similar elements, or over 10 photos that have similar elements, that the best they can find for some other work that is similar is age-old photographs of a woman lying down. [00:06:49] Speaker 01: That's the closest they get. [00:06:50] Speaker 01: So there's the probativeness of the similarities, but essentially the serial copying. [00:06:55] Speaker 01: They want to treat each photo in isolation, but a fact-finder wouldn't do that. [00:06:59] Speaker 01: They'd recognize [00:07:00] Speaker 01: that all of these need to be considered together, as the leading treatises do as well. [00:07:05] Speaker 01: And they point out, if they're serial copying, the idea that you can't reasonably infer in my client's favor that these aren't a coincidence, because that's really what you're asking yourself as this court's doctor has pointed out. [00:07:20] Speaker 01: Do we think the [00:07:22] Speaker 01: These similarities that showed up are a coincidence. [00:07:27] Speaker 01: The other thing we'd be asking ourselves is the rarity. [00:07:30] Speaker 02: Council, sorry to interrupt. [00:07:32] Speaker 02: Judge Gould, I'm having, on my screen, counsel's presentation is breaking up. [00:07:38] Speaker 02: And I'm just wondering, is that me or are other people seeing that as well? [00:07:43] Speaker 03: My presentation was not breaking up. [00:07:48] Speaker 00: A little bit on my end, but not too bad. [00:07:50] Speaker 02: OK. [00:07:51] Speaker 02: I'll, Judge Gould, I'll let you know if it interferes with my ability to hear and understand counsel. [00:08:00] Speaker 03: Yeah, if you want us to pause for a technical reason, you can just tell the clerk to do that. [00:08:10] Speaker 02: I will. [00:08:11] Speaker 02: Not at this point. [00:08:12] Speaker 02: Thank you, Judge Gould. [00:08:14] Speaker 03: You're welcome. [00:08:15] Speaker 01: So Judge Bennett, I think the central thing here that's being left out by the district court is looking at the 10 photos in their totality, that there are over 10 photos. [00:08:27] Speaker 01: And so if there's one photo, you might think about them differently if there's one by one, and that's how the district court thought about them, but there's all 10 of them together. [00:08:37] Speaker 01: In addition, we'd be looking at the rarity of the photograph. [00:08:41] Speaker 01: So if I have a photo with my family in front of the Statue of Liberty, let's say, that rarity of the photo is going to affect the factual inference. [00:08:52] Speaker 01: So I think the key thing to remember is the inferences we're making in favor of the plaintiffs that are required for this posture have to be done based upon the specifics of the facts before you. [00:09:06] Speaker 01: is the serial popping, that the over 10 that show up. [00:09:10] Speaker 01: I'd also note the timeline that they show up. [00:09:12] Speaker 01: In pages 64 to 66 of their brief, they focus on the plaintiff's timeline of creation. [00:09:19] Speaker 01: But it's rather that the defendant created them and released them in batches, which further, the defendant's release of them in batches supports the idea that these were not coincidental copying. [00:09:33] Speaker 00: uh... so and then we have the fact that you look at the dismay and if i may interrupt but if you look at all all of photos individually a lot of them similarities are really really aren't there many of them others are tropes are things that are common so for example you know photos four five and six uh... [00:09:57] Speaker 00: You know, they're an African American man in chain. [00:10:00] Speaker 00: That is, that's not something that's unique, you know, given our history. [00:10:03] Speaker 00: We've seen plenty of folks that artworks. [00:10:05] Speaker 00: I don't know how much weight you can put that. [00:10:08] Speaker 00: And similarly with a lot of these other photos, you know, photo number two, I'm looking at, you know, whatever you want to call this, like a beefcake pose, you know, you can go on the internet and see Burt Reynolds or David Hasselhoff in similar positions. [00:10:24] Speaker 00: A lot of these, even if you look at individually, you can discount them and ultimately you end up with very few. [00:10:30] Speaker 00: So I'm not sure if I'm convinced that, you know, just because you have 10 or 12 photos lined up, that's enough. [00:10:39] Speaker 01: Well, Judge Lee, I would point out that's where the serial copying becomes really important. [00:10:43] Speaker 01: Because if I chose, so what the Supreme Court has pointed out in its FICE decision, that's the fundamentals of copyright, is selection and coordination is really important to copyright as well. [00:10:54] Speaker 01: So even if you think that I choose, if I make a list of 10 photos that you don't think are copyrightable, or you don't think they're protectable elements in some way, and someone else copies, [00:11:07] Speaker 01: copies that same 10 photographs in that way, that the selection of the 10 itself is also protectable. [00:11:17] Speaker 01: And so it's that selection and coordination that makes the serial copying fundamentally different. [00:11:22] Speaker 01: So for example, if I made a list of my 200 favorite restaurants in Los Angeles and someone else copied that, obviously I don't have the copyright in the name of the restaurant, but the list of the 200 put together [00:11:36] Speaker 01: the serial nature of what I made by selection and arrangement is protectable expression. [00:11:43] Speaker 01: And that's what the district court's overlooking is, yes, there are articulable similarities. [00:11:49] Speaker 01: I would distinguish Rentmeester, Your Honor, because the issue in Rentmeester is the pose there was a standard [00:11:59] Speaker 01: ballet pose. [00:12:00] Speaker 01: So we're not asking if the pose has ever been created before. [00:12:04] Speaker 01: It doesn't have to be unique. [00:12:06] Speaker 01: It merely has to be original to that person. [00:12:09] Speaker 01: And so in Rentmaster, the issue is it's a standard ballet pose called a grand jeté. [00:12:14] Speaker 01: And the only other articulable similarity is that it's Michael Jordan. [00:12:18] Speaker 01: So even if you think others have done this, that's the distinction between uniqueness or novelty, which means no one has ever done it before, [00:12:25] Speaker 01: And originality, which, as the Supreme Court expressly defines, means not copied, and you made an artistic decision to include that. [00:12:33] Speaker 01: So my client indisputably made decisions to put the chains, to arrange them in this way, to arrange the poses, to arrange the lighting angles. [00:12:43] Speaker 01: And then the defendant did so in a way that is sufficiently similar, and stole not just one, but all 10 of them. [00:12:51] Speaker 00: I think you touched upon this. [00:12:53] Speaker 00: Can you address the access? [00:12:55] Speaker 00: What is it? [00:12:57] Speaker 00: I'm trying to understand. [00:12:58] Speaker 00: How have you shown access here? [00:13:00] Speaker 01: So remember, access is a factual question. [00:13:04] Speaker 01: It's fundamentally, did this person copy it? [00:13:07] Speaker 01: And this court has said again and again, direct evidence of access is rarely found, especially in a pre-discovery phase, because the defendant isn't just going to admit it. [00:13:17] Speaker 01: They're not just going to come out and say it. [00:13:19] Speaker 01: And there's no way to get them necessarily to admit it in a pre-discovery phase. [00:13:23] Speaker 01: So what is the basis for evidence? [00:13:26] Speaker 01: The work you examine, the works themselves, the circumstances and methods and mediums through which they're trying to access them. [00:13:33] Speaker 01: So it's a multifaceted factual thing. [00:13:36] Speaker 01: Yes, first of all, we do allege that they accessed it through Instagram where they were indisputably available to anyone and any member of the public. [00:13:45] Speaker 01: But what's distinguishable about Instagram is Instagram serving it to them with algorithms and bringing it to its attention as a media platform. [00:13:55] Speaker 01: There's the, there's the actual, the fact that it's on Instagram. [00:14:01] Speaker 01: The district court just conflated that with being on the internet or the World Wide Web generally. [00:14:07] Speaker 01: The second one is the serial copying. [00:14:09] Speaker 01: If I have a picture, if you take 20 photos, [00:14:14] Speaker 01: front of 20 landmarks. [00:14:16] Speaker 01: And let's say I match one of them. [00:14:18] Speaker 01: Your inference that I copied you is not going to be strong because a lot of people take pictures in front of the Statue of Liberty, you might say. [00:14:25] Speaker 01: But now if I match you on exactly those 20 landmarks that you take in front of, your inference is going to be a little stronger. [00:14:32] Speaker 01: And remember, these aren't landmarks. [00:14:34] Speaker 01: And the pose is [00:14:36] Speaker 01: the poses are unique. [00:14:37] Speaker 01: He's putting himself in strange positions that are idiosyncratic, and although they'll say, you know, they don't have any evidence or any indicia to the contrary, the best they put in their brief is actually not the same pose. [00:14:52] Speaker 01: It's a different pose. [00:14:53] Speaker 01: So they can't find, and they've never found anything to suggest to the contrary, that this is not a completely unique pose. [00:15:00] Speaker 01: So sure, some of the idea they've used change, he arranged, my client arranged the chains around himself in a way that he thought was unique, and we haven't found anything to suggest that it wasn't. [00:15:14] Speaker 01: So sure, it's not the broad idea of a chain, although that's a sufficient articulable similarity under the objective test. [00:15:22] Speaker 01: Because remember, we're just asking if there's articulable similarities, we leave the idea whether it's substantially similar to the fact finder. [00:15:30] Speaker 01: And that's the law of the circuit. [00:15:32] Speaker 02: So- Yeah. [00:15:33] Speaker 02: Counsel, so do I take what you just said is that you are not arguing that the photos, to use a term that Professor Zimmer uses, Professor Zimmer uses in the case law, you are not arguing that the photos on their face are quote unquote strikingly similar? [00:15:57] Speaker 01: I think they're probatively similar, Your Honor. [00:16:00] Speaker 01: I think the similarities, especially when you get across all 10 of them, are such that a fact finder, because again, it's a fundamentally factual question, do we think Mr. Hill made these without himself or someone in his entourage looking at Mr. Woodland's photography? [00:16:20] Speaker 01: That's the question we're asking. [00:16:24] Speaker 01: Do you want me to finish answering your question, Your Honor? [00:16:27] Speaker 02: Um, Judge Gould, may counsel finish answering my question? [00:16:32] Speaker 03: Yes, counsel should. [00:16:39] Speaker 01: Um, thank you, your honor. [00:16:41] Speaker 01: So, um, Judge Bennett, so that's fundamentally the question you're asking. [00:16:43] Speaker 01: Do you think it's coincidental? [00:16:45] Speaker 01: And, and so one of the ways you can show it's not coincidental is let's say it's a Taylor Swift song and it's blasted all over, um, all over, let's say every streaming service, et cetera. [00:16:57] Speaker 01: Another way you can say it's not coincidental is that there would have been a way for them to access it without hacking into computers or something like that. [00:17:05] Speaker 01: And here that's undisputed. [00:17:07] Speaker 01: It was available on Instagram. [00:17:09] Speaker 01: And then you start to ask yourself, okay, well, what would be the reasonable inferences in favor of the plaintiff that you might make here? [00:17:15] Speaker 01: So I think, and the big one here is there's 10 works, and they all share these similarities. [00:17:22] Speaker 01: And then when you aggregate it across the 10, the question you ask yourself is, okay, would that be, is that something I think is pure coincidence? [00:17:34] Speaker 01: Is that independent creation, to use doctrinal terms? [00:17:38] Speaker 03: Counsel, you're well over the time. [00:17:41] Speaker 03: Let me ask this. [00:17:42] Speaker 03: Have you concluded your response to Judge Penn? [00:17:49] Speaker 01: Yes, Your Honor. [00:17:50] Speaker 03: So I also have a different question. [00:17:53] Speaker 03: I know we're going over time, but we'll work that out with the appellee. [00:18:01] Speaker 03: My question is this. [00:18:03] Speaker 03: When we deal with copyright infringement of text, [00:18:08] Speaker 03: There's a document involving what I think are called scenes affair, like certain scenes that are typical throughout literature. [00:18:21] Speaker 03: And to copy those elements, they're not protected. [00:18:28] Speaker 03: But with visual images like photos, as in your case here, [00:18:37] Speaker 03: Is there a similar doctrine? [00:18:41] Speaker 01: Your honor, I think that my understanding of the scenes of fair doctrine is that it can be applied or asserted as against any work. [00:18:51] Speaker 01: So I'm not familiar, I'm not aware of limitation. [00:18:53] Speaker 01: The reason, it's an affirmative defense. [00:18:57] Speaker 01: So they would need to show [00:18:59] Speaker 01: It would be the burden of the defendant to show that these are standard types of works, and that isn't shown here. [00:19:09] Speaker 01: In the rent meester case, the plaintiff is admitting that the pose is a standard ballet pose. [00:19:15] Speaker 01: We don't admit that. [00:19:16] Speaker 01: My client's doing unique works. [00:19:17] Speaker 01: He's never seen anything like it, and I can't find anything that uses those poses. [00:19:22] Speaker 01: So that's an affirmative defense. [00:19:26] Speaker 01: They didn't assert it below, so I would say it's waived, Your Honor, but moreover, or at least forfeited for appeal purposes, but moreover, there's nothing in this record that would show that these are standard poses, or that this is a standard use of lighting, [00:19:44] Speaker 01: especially not across all 10 of the works, that these are a standard selection of poses and a standard selection of lighting is applied to them. [00:19:54] Speaker 03: Okay, thank you, Council. [00:19:55] Speaker 03: That indeed answered my question. [00:20:02] Speaker 03: I guess we should hear from uphill. [00:20:05] Speaker 03: So, Council, your time was used up, but even though we're short on time, we'll give you [00:20:14] Speaker 03: One minute of rebuttal argument. [00:20:17] Speaker 01: Thank you, Your Honor. [00:20:19] Speaker 03: So you can plan for that. [00:20:21] Speaker 03: Okay, so now we'll hear from Pelley. [00:20:25] Speaker 04: Thank you, Your Honor. [00:20:26] Speaker 04: My name is Peter Anderson. [00:20:28] Speaker 04: I'm here on behalf of Mr. Hill and [00:20:31] Speaker 04: We urge the court to affirm the judgment on two independent and separate and distinct reasons. [00:20:37] Speaker 04: The first one that I'll deal with, unless you'd like me to proceed differently, is access. [00:20:43] Speaker 04: They have to allege, plausibly allege, that copying occurred. [00:20:47] Speaker 04: Council has referred to an allegation. [00:20:51] Speaker 04: He characterized as a specific allegation that Mr. Hill saw plaintiff's photographs on Instagram. [00:20:59] Speaker 04: He cites to pair, [00:21:01] Speaker 04: Excerpt of Record, page 129, the actual sentences on information and belief defendant viewed plaintiff's work. [00:21:10] Speaker 04: That's it. [00:21:11] Speaker 04: Now, that's clearly a conclusion. [00:21:13] Speaker 04: It's clearly unsupported by any factual content, and both Trombley and Ickball require that. [00:21:21] Speaker 04: This is the second minute of complaint that's in the Excerpt of Records that I just quoted from. [00:21:25] Speaker 04: That was the third attempt that plaintiff made to try and plead a claim. [00:21:29] Speaker 04: In paragraph 13, [00:21:32] Speaker 04: He goes on to add the two other elements that counsel is referring to. [00:21:37] Speaker 04: One, this supposedly remarkable timing of the photographs coming out. [00:21:46] Speaker 04: He actually, with all respect, my friend mischaracterizes what we've said and pointed out at the brief. [00:21:53] Speaker 04: From the initial complaint through the first amended and second amended complaint, plaintiffs specifically alleged [00:22:01] Speaker 04: the time difference between his posting of his photographs and the defendant's posting of allegedly infringing photographs. [00:22:10] Speaker 04: Although, in the opening brief, counsel refers to that as, let's see, remarkable timing of one after another in rapid succession over the course of a few days. [00:22:23] Speaker 04: It's actually anywhere from a month to two and a half years, in fact. [00:22:28] Speaker 04: I also would point out Council refers to ten works. [00:22:32] Speaker 04: If you add them up, they're asserting allegations as to eight of Mr. Hill's photographs. [00:22:39] Speaker 02: Let me ask you an access question. [00:22:42] Speaker 02: Assume hypothetically that I were to agree with you vis-a-vis the plaintiff's allegations of access. [00:22:52] Speaker 02: If plaintiff [00:22:54] Speaker 02: Do you agree with me that if plaintiff can demonstrate, quote unquote, striking similarity, then plaintiff doesn't have to show any evidence of access to move past the phase we're at? [00:23:08] Speaker 04: That's absolutely true. [00:23:10] Speaker 04: Of course, counsel has admitted they don't claim striking similarity. [00:23:14] Speaker 04: And in fact, in the first and second and third complaint, they refer to substantial similarity. [00:23:20] Speaker 04: We also pointed out Malibu textiles, which is [00:23:23] Speaker 04: I think the only example of a finding of striking similarity at the 12b6 level. [00:23:28] Speaker 04: And we have depicted that in our brief. [00:23:33] Speaker 04: We've copied and pasted the images. [00:23:35] Speaker 04: And you'll see that the fabric designs are identical. [00:23:38] Speaker 04: The questions, excuse me, the colors are a little bit different. [00:23:43] Speaker 04: And the image appears at Malibu Textiles, 922. [00:23:47] Speaker 04: F3D at 956. [00:23:48] Speaker 02: So counsel, assuming I'm using the same numbering that everyone else is, which I hope I am, explain to me why vis-a-vis photo 12, why there isn't, and I understand that they may not be arguing striking similarity, and that's a different issue. [00:24:09] Speaker 02: But for my question, why aren't the photos in photo pair 12 strikingly similar? [00:24:17] Speaker 04: I'm referring to the the supine the the image of a black man on his back. [00:24:25] Speaker 02: Which is yes although there's there's there's more than more than one of those. [00:24:30] Speaker 02: So I'm I think I'm looking at the last one where [00:24:36] Speaker 02: the copyrighted photograph is the supine pose on something covered in like a white sheet. [00:24:49] Speaker 04: Right. [00:24:50] Speaker 04: I'm happy to adjust that one, Your Honor. [00:24:52] Speaker 04: OK. [00:24:53] Speaker 04: Council said that in Rentmeester, there was a standard pose. [00:25:00] Speaker 04: And actually, in Rentmeester, this court said that [00:25:06] Speaker 04: but that poses are not protectable. [00:25:09] Speaker 04: So even if we assume this is an identical pose, the pose itself is not protectable. [00:25:15] Speaker 04: What Rentmeester teaches us, and it's consistent with the Ombank decision in Skidmore, but what Rentmeester teaches us specifically with respect to photographs, is poses are not protectable. [00:25:28] Speaker 04: they are considered and analyzed as one unprotectable element in a selection and arrangement. [00:25:35] Speaker 04: So what plaintiff would have to show, and he can't because of these photographs, is that that unprotected pose of a supplying person, which frankly, I keep thinking of a dirty dancing when he holds her up. [00:25:47] Speaker 04: But when you have that unprotected pose, the question then is, OK, let's assume that's substantially similar. [00:25:56] Speaker 04: Then the question, but it's unprotected. [00:25:58] Speaker 04: So to plead substantial similarity in protected expression, there has to be a selection and arrangement. [00:26:05] Speaker 04: We have to look at the other things, the background, which is remarkably different. [00:26:12] Speaker 04: The two shots the plaintiff has of himself, one he's on a stool in a room, excuse me, in a room, one he's in another room with, I guess, something draped over the stool. [00:26:23] Speaker 04: In Mr. Hill's photograph, [00:26:26] Speaker 04: There is that supine pose. [00:26:28] Speaker 04: There are differences in how the legs are positioned, which I want to get back to in a second. [00:26:33] Speaker 04: But this cannot be a selection and arrangement claim because all the other elements are different, which is a fact that goes through all of his photographs. [00:26:43] Speaker 04: Now, if we go to Rentmeester, [00:26:46] Speaker 04: The Ninth Circuit at a 12b6 level went through and compared what frankly seemed like relatively small differences in Michael Jordan's arms and position of his hands in the photograph that the plaintiff had done and in the Nike photograph. [00:27:05] Speaker 04: Those differences are aligned with the kinds of differences we see in this pose. [00:27:12] Speaker 04: First of all, Rettmeister is on point and mandates an affirmance, because in Rettmeister, the court specifically said Mr. Rettmeister had come up with a unique and unusual pose in the context for a photograph of Michael Jordan. [00:27:33] Speaker 04: Poses, however, again, are unprotectable. [00:27:36] Speaker 04: And if we look at the poses and, [00:27:39] Speaker 04: I'd like to do it all, but tell me it's just too tedious. [00:27:42] Speaker 04: If we go to page 28 of the opening brief, excuse me, the answering brief, the red brief, you'll see that the only similarity imposed is a black man with his hands towards his chest. [00:27:53] Speaker 04: That's it. [00:27:54] Speaker 04: There's nothing unique about that. [00:27:57] Speaker 04: There's nothing unique at page 30 of the answering brief of a reclining gentleman. [00:28:06] Speaker 04: recumbent basically, and you'll see that all the other elements of the pose, which itself is unprotectable, are completely different. [00:28:13] Speaker 04: Same thing with the third set of photographs at page 32. [00:28:18] Speaker 04: There's absolutely no similarity. [00:28:21] Speaker 04: There's blue. [00:28:22] Speaker 04: That's about it. [00:28:24] Speaker 04: If we go to the chains, they're completely different. [00:28:27] Speaker 04: The background's different. [00:28:28] Speaker 04: The pose is just a standing man. [00:28:32] Speaker 04: If you go to page 36, the sixth and seventh sets of photographs, it's just a man viewed from below. [00:28:39] Speaker 04: The poses, again, are different, and the background is different. [00:28:42] Speaker 04: If we go to page 39, it's a standing man with outstretched arms. [00:28:47] Speaker 04: There's nothing unique about that. [00:28:50] Speaker 04: And more importantly, since poses aren't protectable, it's a selection and arrangement question of are the backgrounds and other unprotected elements standing alone [00:29:00] Speaker 04: Do they form an original work? [00:29:02] Speaker 04: And they clearly don't. [00:29:03] Speaker 04: If these did, then Rettmeister would, because Rettmeister is a much, much, much closer case than this one. [00:29:11] Speaker 04: The only similarity here is a black man without clothes, sometimes with chains, but posed differently with a completely different background and other elements. [00:29:29] Speaker 04: Council has repeatedly referred to the mere fact that they claim, he said, 10 infringements. [00:29:38] Speaker 04: However, what he's ignoring is that in the complaint, the Second Amendment complaint and the earlier complaints, they specifically allege that Mr. Hill is a active user of Instagram. [00:29:53] Speaker 04: He posts repeatedly. [00:29:54] Speaker 04: That's what they say. [00:29:56] Speaker 04: And the period they're covering is three years. [00:29:59] Speaker 04: So what we know from their own complaint is they're alleging that out of all the photographs and other images that Mr. Hill posted on Instagram as an active user of Instagram, they can only find eight. [00:30:14] Speaker 04: Now, there's a little bit of bootstrapping going on here because he assumes they're infringing to then argue, oh my god, he must have copied because there's eight or 10 ones that are similar. [00:30:27] Speaker 04: That's just your bootstrapping. [00:30:29] Speaker 04: The fact of the matter is these are generic images. [00:30:32] Speaker 04: The similarities or alleged similarities are unprotected. [00:30:36] Speaker 04: And there is no ground to assume or there's nothing pleaded that establishes that defendant had a reasonable opportunity to copy the plaintiff's photograph. [00:30:49] Speaker 00: If we can go to the access question, should we remand to get more discovery on how this Instagram algorithm works? [00:30:59] Speaker 00: claim is if you have similar images, if they've seen similar things, similar images may pop up on one Instagram user's feed. [00:31:10] Speaker 04: No, Your Honor, for two reasons. [00:31:11] Speaker 04: First of all, Twombly teaches that you don't get discovery if you can't plead a plausible claim. [00:31:18] Speaker 00: Well, I mean, I guess his theory is they look at similar things and therefore his images would have popped up. [00:31:24] Speaker 00: Well, the second answer seems plausible. [00:31:27] Speaker 00: I mean, I don't know if it's true or not, but it seems plausible. [00:31:29] Speaker 04: Well, when we consider that they've alleged and they admit that there are billions of photographs on Instagram in this time period and billions of users, there only aren't, and they basically concede access doesn't survive in that environment. [00:31:45] Speaker 04: A reasonable possibility of seeing a particular person's photographs does not make any sense. [00:31:51] Speaker 04: It's not reasonable. [00:31:52] Speaker 04: They instead refer to Instagram informational things [00:31:57] Speaker 04: and that they didn't ask the court to take judicial notice of, but they throw in and they say that the factors for connecting different users of Instagram include the images. [00:32:09] Speaker 04: However, we showed at page 68 of the answering brief, images are not considered. [00:32:15] Speaker 04: What is considered is who likes you. [00:32:19] Speaker 04: So if someone has liked you- Do we know that? [00:32:22] Speaker 04: Well, you know it as much as the point that they raised, because they didn't ask for judicial notice. [00:32:27] Speaker 04: But if you actually look at the things they're asking us to look at, the Instagram recommendations on Instagram, what creators need to know, Instagram for creators, that's at page 68, shedding more light on how Instagram works. [00:32:42] Speaker 04: These are all things that were triggered by their argument that Instagram [00:32:49] Speaker 04: joins people together if they have similar images. [00:32:52] Speaker 04: That's just untrue. [00:32:53] Speaker 04: If you look at Instagram and you look at what they're citing the court to, images are noticeably absent from the criteria that trigger Instagram to join someone else. [00:33:05] Speaker 00: I mean, do we, I mean, do we know? [00:33:06] Speaker 00: I mean, isn't that one of the disputes over TikTok and fight dance? [00:33:09] Speaker 00: They have a proprietary algorithm. [00:33:11] Speaker 00: No one knows exactly how that's done. [00:33:13] Speaker 00: And I know maybe meta says something, but I mean, I don't know how much stock we would put at whatever meta says out there in the public. [00:33:20] Speaker 04: Well, it is what Instagram says. [00:33:22] Speaker 04: And they're relying on what Instagram says to misstate that Instagram says they review images and put people together who have similar images or interests in images. [00:33:33] Speaker 04: Even if that were true, which it's not. [00:33:35] Speaker 04: We've shown that at page 68 of our answering brief. [00:33:39] Speaker 04: You're still talking about billions of people. [00:33:41] Speaker 04: And if we start comparing that to art attacks or rice versus, I think it was [00:33:47] Speaker 04: one of the broadcasting stations, both published decision. [00:33:51] Speaker 04: People, or we go back a bit, the Fonda case, Ninth Circuit, I think it was 1980s, that was 2,000 books in Los Angeles, not enough for access. [00:34:01] Speaker 04: Art attacks was, I think, 17,000 of these devices sold, not enough for access. [00:34:10] Speaker 04: to say that, well, we've got billions, literally billions of photographs. [00:34:15] Speaker 04: And it's reasonable to say that, well, maybe Mr. Hill saw theirs. [00:34:19] Speaker 04: It's inconsistent with all of this court's published cases on access. [00:34:26] Speaker 04: Also, I should mention, even if he had plausibly alleged access, then we're in Rintmeister. [00:34:33] Speaker 04: In Rintmeister, the court found access [00:34:37] Speaker 04: concluded that there were substantial similarities probative of access, but affirmed the 12b6 dismissal because those claims similarities were unprotected elements because you can't protect poses. [00:34:49] Speaker 04: And there were far fewer differences in that case than this one. [00:34:54] Speaker 04: In this case, you've got these fantastical images in Mr. Hill's artwork in Rentmeester. [00:35:01] Speaker 04: The basketball hoop was a little bit different. [00:35:04] Speaker 04: The skyline was different. [00:35:07] Speaker 04: The foreground was a bit different. [00:35:09] Speaker 04: That was a much harder case at 12b6 than is a published decision. [00:35:15] Speaker 04: This case doesn't even come close to red baser. [00:35:23] Speaker 04: There's just a couple of things. [00:35:27] Speaker 04: Oh, one of the things that the counsel referred to was he said that the courts have recognized if there is a serial infringement, that supports a theory of copying. [00:35:41] Speaker 04: The only case that they cite to is a district court case against Conan the comedian. [00:35:50] Speaker 04: And there, and I'll get you the name in a second, [00:35:57] Speaker 04: Caseburg versus Conoco, which we discussed at pages 63 and 66 of our brief. [00:36:05] Speaker 04: There, the plaintiff was contacted or contacted himself, Mr. Conam's writers. [00:36:14] Speaker 04: And that day or the next day, there was a, and he told them a joke. [00:36:19] Speaker 04: The plaintiff told the writers a joke. [00:36:21] Speaker 04: That day or the next day, that joke was used on television. [00:36:25] Speaker 04: And that happened over and over again. [00:36:27] Speaker 04: We're talking about the same day or the next day. [00:36:29] Speaker 04: And the district court said, yeah, that probably indicates copying, but found that there wasn't protection. [00:36:36] Speaker 03: Council, sorry to interrupt, but your time is up. [00:36:41] Speaker 04: Well, thank you, Your Honor. [00:36:42] Speaker 03: I don't want to cut you off in mid-sentence, but please try to conclude your argument. [00:36:50] Speaker 04: Thank you, Your Honor. [00:36:51] Speaker 04: We believe that despite three attempts, the plaintiff has not pledged access and has pledged himself out of court by putting the photographs in issue. [00:37:01] Speaker 04: And we respectfully ask that the court affirm the judgment. [00:37:05] Speaker 03: Thank you, Counsel. [00:37:06] Speaker 04: Thank you. [00:37:14] Speaker ?: OK. [00:37:16] Speaker 01: Your Honor, I would first note that my friend stated the wrong standard for cooperatability and similarity. [00:37:23] Speaker 01: He said that my client's works had to be unique. [00:37:26] Speaker 01: That's just not the law. [00:37:28] Speaker 01: Feist says originality, which merely means that they don't have to be copied. [00:37:33] Speaker 01: Second, my friend also said he called the works here generic, but there's nothing here that supports that. [00:37:41] Speaker 01: That's just his attorney insistence. [00:37:43] Speaker 01: And if they truly were generic, that can easily be addressed through the affirmative defense of Sain's affair on remand. [00:37:50] Speaker 01: But that defense wasn't raised. [00:37:53] Speaker 01: Third, yes, I think a further remand to the extent that it wasn't requested, we do request judicial notice of the Instagram, Instagram's own description of how it works. [00:38:06] Speaker 01: And I think that's clear. [00:38:08] Speaker 01: But I also think the Instagram issue points out something also clear, which is that [00:38:12] Speaker 01: a simple subpoena to Instagram to see who actually viewed Mr. Woodland's site would help, would essentially resolve the issue if that had been afforded. [00:38:25] Speaker 01: And that would actually go a long way towards resolving the dispute. [00:38:29] Speaker 01: Finally, my friend Ms. [00:38:32] Speaker 01: Speaks, I don't know her name, Mr. Express. [00:38:38] Speaker 01: I would know. [00:38:40] Speaker 01: the cloak. [00:38:41] Speaker 01: It's because the pose is not original. [00:38:44] Speaker 01: The pose is a standard ballet pose. [00:38:46] Speaker 01: There was no originality, for example, to using a word out of the dictionary by itself. [00:38:51] Speaker 01: And in addition, any other similarities were that it's the same person. [00:38:56] Speaker 01: It's Michael Jordan. [00:38:57] Speaker 01: But of course, this court rightfully, in Rentmaster, recognized that you can't give the photographer control over the ability to ever take pictures of you in a particular pose again. [00:39:09] Speaker 01: So Rentmaster itself expressly limited itself in the footnotes as described in the opening brief. [00:39:16] Speaker 01: So for all of those reasons, we think that my opposing counsel is incorrect and this court should at least vacate and remand. [00:39:25] Speaker 01: Thank you. [00:39:27] Speaker 03: Thank you, counsel. [00:39:30] Speaker 03: This case shall be submitted.