Full transcript
0:00United States Court of Appeals for the Ninth Circuit is now
0:03in session. Thank you. You may be seated.
0:14Good afternoon and welcome to our James Browning courthouse here in
0:19San Francisco. Uh this is the time set for oral argument in the case of Sedick
0:25versus Von Drachenberg. If the council is ready to proceed, you may come forward.
0:34Good afternoon. May I please the court? I'm Bill Patrick, council for repellent Jeff Sedlick. I'd
0:40like to reserve five minutes for rebuttal if I may. Council, I'm having hard time hearing you.
0:45That's okay. Should I start again? Better. Okay. Thank you. Good afternoon. May I please the court?
0:50I'm Bill Patrick, council for appellent Jeff Sedlick. I'd like to reserve five minutes of
0:55my time for rebuttal, if I may. We're grateful to the court for the opportunity to assist in
1:02re-examining this circuit's test for copyright substantial similarity. We agree with Judge Wlaw
1:09and Judge Johnstone's concurring opinions that the attrinsic test and total concept and feel
1:15should be abandoned. The question then is what to replace it with. We suggest a single objective
1:22test that compares the protectable elements in the two works. An objective test would allow exclusion
1:28of non-protectable elements such as concepts and feelings while still preserving the author's
1:34creativity according to the specific genre of the subject matter as well as the author's
1:40individualized expression in that subject matter. So what would be left to the jury if we adopted
1:48the test that you're proposing? Yes. So under the text that we propose, we believe is consistent
1:55with what judges WLOW and Johnson wanted. At the first step, the trial judge would determine what's
2:01protectable or not. Um, Judge Wlaw suggested that that's a question of fact or at the very least a
2:08mixed question of law and fact. So that would be done at the initial stage. If the case survived
2:16summary judgement and it went to a jury because there are genuine issues of material fact and
2:21dispute, uh the trial judge would instruct the jury about what he or she found was protectable
2:28or not. And then at the trial there would be appropriate expert witnesses. There would be
2:34trial testimony. Um then there would be jury instructions that we think uh could follow this
2:40circuit's very helpful uh model jury instruction 17.9 which sets out what are protectable elements
2:47in particular because under that proposed test does it involve abstraction and is abstraction
2:53done as necessary at the filtration stage or is it akin more to the abstraction filtering and uh
3:00comparison test that some circuits have adopted. So the abstraction filtration comparison test may
3:07be the most complicated test ever invented and I'm not sure it's ever been actually applied in
3:12practice. I know Judge Walker adopt it in computer applies it applies quite well in the computer
3:18context for example I think it applies poorly in every context and I would never have it adopted by
3:25any circuit. The the question I believe that Judge Wardlaw and Johnstone identify is that we have to
3:31identify at the outset what's protectable or not. Once that's done, you can then proceed to what the
3:39uh jury may or may not find is substantially similar and that's going to be based on a
3:44number of things on the genre. Music is different than visual art. So what you're advocating is not
3:50the AFC test as as some circuits have called it. It's it's is it akin to our current extrinsic test
3:56then? It's not at all like the intrinsic test. I I have a the same question as Judge Wyn. I I
4:02I you don't need to explain to me that you want us to I understand you want to get us to get rid
4:09of our test. I'm trying to find out what you want to replace it with. And when I read your brief,
4:13I'm left with questions. I I think you want us very clear to lop off the intrinsic test,
4:18but that would leave the exttrinsic test. And I can't figure out what you think should be in
4:23there. Yes. What's what's remaining? Yes. So if you just loft off the extrinsic test and
4:28say we're going to c keep the extrinsic test, I wouldn't recommend that. Under the extrinsic test,
4:34the jury can decide that too. And actually did in this case. So it would be really helpful for me if
4:39you would tell us what you do want us to do. Yes. So a test that you could have, this is a general
4:45test. Yes. So you need to have a number of things. You need to have a general test because it has to
4:50apply to all different sorts of subject matter. Yes. All right. So, a general test would be for
4:55example in Skidmore um the court said the decision maker which would be the jury potentially. Yes. Is
5:02to compare the objective similarities of specific expressive elements in the two works. That would
5:10be like the most general test that you would apply to all works. And then what you would do as the
5:16bottle jury instructions in 17.19 do is it would list what protectable elements would be for that
5:22specific genre and they're different. Yes. And you don't have any problem with those instructions.
5:28No. Okay. You would have to change them a bit because some of them refer to the intrinsic
5:32test. Yes. But if you do that, you already have a very helpful guide for it. And I think that
5:39would be helpful. You would have expert testimony which of course judges WLOW and Johnstone pointed
5:44to that would tell you for this genre and for how this genre is played out for those specific
5:49works this is what you know well do you would you agree though that there could be some instances
5:56where just the lay person would they you don't need expert testimony uh you know there's some
6:03things that I can do just as well as an expert can do and you know one of the things when you when
6:08you're a judge judge, a trial judge, and an expert wants to testify, the point is to help the jury on
6:14something that they could use help on. Some of the things they could be just as good on. So,
6:19not every case would require an expert. Is that correct? I agree 100%. Okay. But in this case,
6:27let's say uh if we got rid of the the feelings, [snorts] um obviously you want something that
6:33can be reviewed. So, but would you still concede that even under the test that you're proposing,
6:41if a jury reviews certain things and makes certain factual determinations, it's still
6:47going to be a little bit difficult to overcome it? You'd have a chance, but under feelings,
6:51you have no chance. Yes. I think the trick is this, defer, but review. So, to have something
6:58to review, you need to have something that you can review. I mean, special jury verdicts uh provide
7:04you that. I think the trial judges determinations about what's protectable or not provide you that.
7:11But when you have the intrinsic test, which is subjective and not subject to review,
7:15as in this case, there's no rule. There's nothing to do. Council, I'm having a little bit of trouble
7:21understanding why you think the ABC test uh is the most complicated or worst test in the world.
7:30I mean I'm looking at the description of it in country kids. Uh we separate the ideas which are
7:36not protectable from the particular expression uh of the work. We filter out the unprotectable
7:42components from the original expression and we compare the remaining protected elements
7:47to the allegedly copied work to determine if the two are substantially similar. I mean obviously
7:52that leaves substantially similar uh at the end. But what is it that's so terrible about that test?
7:58The difficulty is that it to use a cliche loses the forest for the trees. It ignores what is
8:05protectable and integrated holes. So in Skidmore um the court sort of addressed this argument in
8:12terms of selection and arrangement. Yes. For photographs um in the Red Mester case of course
8:17the court talked about what would be protectable in photographs. And here's what Skidmore
8:22said [snorts] in terms of what selection and arrangement is and whether that's a metaphor for
8:27abstraction filtration comparison which I think is more like a water treatment plant test than it
8:33is for copyright law. But if you say we're going to say selection and arrangement, right? So for
8:38photographs is selection and arrangement. Here's what Skidmore said. It said such an arrangement is
8:43quote the particular way in which the artistic elements form a coherent pattern synthesis or
8:51design. It is not random similarities scattered throughout the work. And that's the issue with
8:56abstraction filtration comparison aside from being a test that no one actually uses. I mean that
9:02should be condensation enough right? So I have a question. Um, are there some cases where are
9:10there any cases where a a work is copied in its entirety? The copying is admitted. The the entire
9:22work is copied. Um, and you you know because some elements of the photograph and some elements are
9:36inherently protected are protectable and some elements may not be protectable. Couldn't you just
9:44skip it all and just say it was copied wholesale? So necessarily protect protectable components
9:55were copied. I kept getting to that point in my analysis although I stopped short of it because
10:01I like you reject that what my law clerks were calling the AFC test. Sounds like Kentucky Fried
10:09Chicken test. Yes. or if we're going to do the extrinsic test, let's call it something else,
10:13you know. But um but is there I mean I just think I got to the point where I was thinking if you're
10:19if you're copying a a whole thing a whole work of original authorship you're necessarily unless the
10:30whole thing's not protected for some reason you know public domain um you're necessarily copying
10:38um both protectable and unprotectable elements. So why go through all these steps? Yes,
10:46we agree completely. In this case, you had an admittedly highly creative copyrightable work.
10:52There is no question of access and copying. The social media posts show the defendant
10:58with the copyrighted work on the wall and she's copying it and tracing it and they brag that they
11:05copied it 100% exactly the same. I mean under any rational council you say it's exactly the
11:10same but it's not technically a copy in that uh you you've got a photograph and it's not a copy
11:17of the photograph right the medium has changed so it's been translated from a photograph to to
11:23a tattoo yes so I was using copy in the copyright definition sense of the act yes and so one of the
11:31acts one of the rights you have is under 1062 which is the right to prepare derivative works
11:37I mean, I still think it's a copy in the reproduction sense, but you know, to engage
11:42with your hypo, if you say the medium was changed and there's this or there that's not the same,
11:47it's not a copy. So, is this a 1061 case or 1062 case or both? I I don't think it matters. It
11:55could be both. May I also quote because I think actually council, doesn't it cover, you know,
12:00there's six exclusive rights to copyright that that are attributed under I think 106. So in this
12:07case, you actually have several of the rights inherent in copyright um that were infringed.
12:15Yes. I I can think of at least four um you know the copying, the the production, reproduction,
12:24the uh distribution, the display. I mean so but so what you still have the same test for Yes. Yes.
12:35Even for derivative works and reproduction the test what are you asking for procedurally suppose
12:41we adopt a new test we modify the existing test are you asking us to then apply it grant you a J
12:49mole and then what would we do with fair use or do we just ship announce the standard and
12:53ship the whole thing back yes we would uh request you to grant JO on substantial similarity for the
13:00making of the tattoo I mean after all if you copy a creative work 100% % exactly the same under any
13:07test. And what did we do with fair use though? For fair use, uh the fair use part of this case
13:14um is a mess to put it politely. Well, we we can't do a J mall because you didn't do a 50 motion.
13:20So that's off the table. You should go back for remand for a new trial. Well, that that portion
13:24you concede whatever we do, you're going to have to go back on fair use for a retrial on that. Yes.
13:29I can give you the reasons why I should, but that's our answer. Yes. So you're not saying
13:34you should just win on summary judgement, send it back and say I should win on summary judgement.
13:38You're saying go back for another trial. If it's sent back, we should obviously have the option
13:43for summary judgement as should the other side. I mean it would be odd. I understand only about one
13:49case under the present rules summary judgement has been granted. So it's very unusual. Under the rule
13:56that you're proposing, are there going to be more summary judgments that can be granted? It would
14:02depend upon the mandate that you give the trial judge. If if you give the mandate back allowing
14:06summary judgement, then we should be able to. If you say no, it has to go back for a trial, that's
14:10what we'll do. I don't think that's the question. I think judge what Kalahan is asking under this
14:16new rule, will more summary judgments be granted? And I think the answer is going to be yes. Answer
14:20would be yes. Maybe even 12 B6. I mean, every circuit, including this one, has allowed judgments
14:26on substantial similarity for 12 B6 and summary judgement. We're not asking for that standard
14:31to be changed. You don't think you if we adopted a new rule uh and for example hypothetically got rid
14:38of the intrinsic test, you don't see any benefit to our establishing the new rule and then sending
14:46it back to the original three judge panel and give the parties an opportunity to rebrief uh the
14:53case under whatever new rule we established. You don't see any benefit in our doing that? So in the
14:59precurium opinion which said we affirm but and we deny Jal the reason that was given was that it was
15:08only because of the intrinsic test. Obviously if that's your judgment to send it back but why when
15:15the judgment was that you get rid of the intrinsic test and we should have won and you have a new
15:20test the only thing that was stopping the panel from granting the J mall was the intrinsic test.
15:26So if you get rid of that and adopt the test, that would be a rational, reasonable one. There would
15:32be no reason for you not to do it. We don't have the trial transcript. We have sort of blurbs uh
15:37excerpts of the trial transcript. So I can tell from the defendant's closing what was said about
15:42the intrinsic test. It's very hard to un you know wind the clock back here um to try to figure out
15:48what would be left. Maybe the best way for me to ask this question is if you could clarify your
15:53answer to Judge Collins's question. Is it your view that after announcing this new test that
15:59you're advocating that you think you're we would send it back just for a limited trial on fair
16:04use only? Yes, because we believe that you should grant J Mall at this level for the making of the
16:10tattoo. All right, that's the clarification. I can I follow up on that? And why should we
16:15send it back for the analysis of fair use on um anything other than the tattoo? What about the
16:22jury's findings of fair use on the social media posts? That's what I was referring. But that has
16:27a different purpose. Yes, I was that's what I was referring to of being a mess. So, the jury decided
16:33that some of those posts were both substantially similar and fair use, which is inconsistent and
16:39I think that demonstrates that they had no idea what they were doing. Well, that's as to the messy
16:44progress social media post only, right? There are other categories that seem well supported.
16:50Yes, I was making sort of a pun, a messy a mess. Um, the other part of it is that the
16:55uh trial judge had found this matter of law on two of the factors, but then refused to instruct the
17:03jury that she had so found. So, the jury decided those social media posts as a whole when the trial
17:10judge had already found uh as a matter of law on two of the factors. I mean, I've been doing this
17:17for over 40 years. I've never seen a trial where the trial judge makes rulings as a matter of law
17:23but then refuses to tell the jury and allows the jury to redo it. I didn't mean to interrupt you,
17:28but I'm trying to get the answer to Judge W's question on first first in response to Judge
17:32Collins. You said announce the new test and but we want J Mo. We think we're entitled to it and only
17:38send it back for a new trial on fair use. Correct. And I think Judge Wyn is trying to tease out and
17:43I'm not sure I understand your answer. All are is your answer that all fair use to the social
17:49media post as well progress post as well. Yes. And and the reasons were what I tried to explain is
17:54this is that the jury verdict was confused. Some were substantially similar, some were fair use,
18:00it can't be. That's a binary thing. If it's not substantially similar, then you don't need to
18:06get the fair use. Do you think that the jury's um judgment on fair use when they made it as to
18:14things that that they had also said were not substantially similar was in any way tainted
18:21or influenced by the fact that they were given a particular test on substantial influence such that
18:27that would be tainted by changing the test and require it to be redone. I think that's entirely
18:32possible because it's an affirmative defense. If you had the standard for the primmaasia case that
18:38was erroneous and then you have an affirmative defense to an erroneous test, things could easily
18:44go south. So I think that's a possibility. Can we back up? I just want to confirm. Sorry. I
18:50just want to confirm because I think I read your opening brief as well as your motion for
18:54consideration below is arguing that plaintiff was entitled to summary judgment on fair use. Have you
19:01conceded that that there are detriable issues of fact on fair use that go to a jury? I mean
19:07both sides move for summary judgement on well your original motion for summary judgement just argued
19:12for summary judgement and substantial similarity. Then on reconsideration I believe you argued and
19:18well defendants move for summary judgement on fair use and you opposed. Then on reconsideration
19:24after war Warhol I understand the briefing to be arguing that after Warhaul pliff could get summary
19:30judgement on fair use but the district court disagreed. I understand your opening brief to this
19:38court before the three judge panels argued that that was wrong and that pliff could get summary
19:44judgement or unfair use as a matter of law that defendants didn't meet their burden as a matter
19:50of law. Now you're arguing we should remand for a new trial. So I just want to make sure. Are you
19:55conceding that there are triable issues of fact on fair use? I think we're conceding the obvious. We
20:01still don't believe it's fair use, but we accept that what this court could do um would be to
20:07remand for a trial on fair use. Okay. But you're not arguing anymore that we should just rule as
20:13a matter of law on fair use for the social media post. Yes. Right. on on the making of the tattoo.
20:21I would say yes for this reason. One of the things that happened on the Warhole was after Warh Hall
20:26the switch from the trial court was defined it wasn't transformative. Right? So that was one of
20:33the findings that she made. If on fair use, you say something's not transformative as a matter
20:38of law and you've held that to some of the other factors also as a matter of law don't support it,
20:44it's going to be extremely difficult to ever prove that your use is fair. And the burden is on that
20:50person to do it. It's an affirmative defense and a lack of transformative use is going to
20:56dramatically impact the fourth factor too, which is the single most important factor. So, we do
21:02not believe it's fair use, but we would accept a remand on the social media posts for that.
21:08On the making of the tattoo, I think it would be appropriate to do a JV on that. The entire work
21:14was copied. There was no transformative use at all. Um, and it's just inexplicable to see why the
21:21making of the tattoo could be fair use. The social media post, as pointed out, maybe have a different
21:26purpose. And that goes for why a a retrial on that might be good because why could we do a J mall on
21:33fair use when you procedurally defaulted by not filing a 50A on fair use because of the legal
21:39errors that were made uh in the jury instructions but you know if this court decides to remand but
21:46in most get you a new trial you still can't get a directed judgment. Yes. Can I ask you about of the
21:54ordinary observer tests? seems like other circuits use it. What's your view of it and how does that
22:00differ from your what you're proposing? Yes. So many circuits use it including the second circuit
22:06uh which has a lot of these. The issue with say adopting another circuits test and I think you
22:12have an amazing opportunity. Yes, this is the first circuit who's ever decided I believe to
22:18you know re-examine their test. So it's an amazing opportunity. uh the second circus approach uh is
22:25all over the map. So sometimes they use ordinary observer uh for which they use total concept and
22:31feel. So that's one issue in adopting it because you'd have to take total concept and feel which
22:36is a problem. The other one is they sometimes use the more discerning observer test which is sort of
22:43hard to figure out. How are you supposed to tell a jury to be more discerning than what you were
22:48ordinarily? I think they're supposed to always be discerning. So I'm not sure how you dial that
22:53up to be more discerning than the ordinary would be. Um and their test seems to be and
22:59I've practiced in front of them that it's rather fact-sp specific um based upon you know whatever
23:06they happen to think the appropriate test is for that. So I think you have a great opportunity to
23:12plow new ground and to have you know an objective test um as judges Wlaw and Johnson did. I think
23:19that'd be a wonderful thing and hopefully other circus would follow your lead. Does the fact that
23:25this involves photography does this complicate any ordinary any test that we would now provide? The
23:33fact that's photographs. So the general test of course has to be same for all subject matter. So
23:39that wouldn't change. what you would do and what the model jury instructions in 17.9 do is to lay
23:46that out for a particular subject matter and you know that might be something you want to revisit
23:50too how those model jury instructions would be written and you'd have to do it anyway if you get
23:55rid of the intrinsic test and so you need both you need both a proper general test and then you need
24:03the specific examples that are there the model of jury instructions are very helpful for that so So,
24:10I think we understand that you you're not a fan of the intrinsic test and that you would have us
24:14jettison that and that you would exp uh have us adopt a two-step inquiry that at the at step one,
24:20the court is to decide what's predictable and what's not protectable. I understand that part,
24:24but you're pointing to the jury instructions for when we turn this over then to the to the to the
24:28jury. And um I'm just wondering if you can be very specific about what you think the jury's
24:35charge should be. Clearly, it's not the intrinsic test, but what do you think is the best um best
24:41encapsulates the jury's uh task at step two when they're looking for substantial similarity? They
24:47they need more help than that. Yes. So, I have an idea. [laughter] The idea would be this. Members
24:53of the jury, I instruct you that the following elements are not subject to protection standing
24:59alone. And this would be the objective findings that the trial judge had made. That's the part we
25:04understand. Okay. Then we go on to the next part. These elements standing alone cannot
25:08form the basis for any finding of substantial similarity. That there are dissimilarities not
25:14positive so long as in comparing the objective similarities of practical elements in the two
25:20works, you find the defendant's work to be as a whole substantially similar in its integrated
25:26compositional elements. A change in medium where the integrated compositional elements are still
25:33substantially similar is infringing. Objective means verifiable identifiable features compared
25:40side by side. That's at least a starting point for what it might look like and I think that
25:45would give you know some guidance to the jury. But that deviates from our model jury instruction. Um,
25:51yes. And I just want to be clear about that because earlier I uh and you're there somewhere
25:55in this room my law clerk is grinning because you're you're sort of paring very closely uh
26:00something that he's he was suggesting me about exactly what would what we would what we would
26:04uh tell the jury. Uh but I um but earlier I thought you said that you thought these model
26:11jury instructions that we have here would do the trick as long as we excised in intrinsic
26:15evidence from them. It sounds like you're that's not I did not understand you correctly if that's
26:19what they would work together. You would need both. Okay, good. Thank you. So, I see my time
26:24is up. I answer happy to answer any more questions or reserve for rebuttal. Thank you. Thank you.
26:42Good afternoon. May it please the court. My name is Alan Grodsky. I am here on behalf
26:47of the Appelles, Katherryn Von Drachenberg, known as Cat Von D, a retired tattoo artist,
26:52and her defunct tattoo parlor, High Voltage. It's probably no surprise that I have a very
26:58different point of view about this case. I have four points that I would like to make today,
27:03and let me summarize them first. Number one, I do not believe you should discard the current tests.
27:09I do not believe there has been a sufficient showing that it's inconsistent with Supreme
27:13Court law. In fact, I'll show you that it's not. Can I I know you want to go through all of it,
27:18but can you back up on that first point? Yes, we shouldn't discard it, but everybody else has
27:25basically discarded it. Is there any other circuit that tracks us? Yes, the eth circuit. According
27:30to Nimmer, the circuit, the federal circuit, I don't I I I don't think that's exactly accurate.
27:35I mean the eighth and the fourth they they they've taken a more flexible approach that there are that
27:40may be true. I think there may be five, six or seven different tests that are used and I will get
27:45to that and why ultimately empirically it doesn't appear to make much of a difference. Point number
27:50and let me just go through the points and I'll then I'll get to the tests. Point number two,
27:54if you decide we're going to throw the baby out with the bathwater and we're going to discard
27:58this test and start over, you are going to be overruling clear past president on which litigants
28:04have relied and consistent with your decision in Nunes Ryer versus Holder. Those changes should
28:10be applied prospectively. and my client who went through all the trial arguing and preparing the
28:16case in a particular way because this is what the rule was for 40 years and all the other copyright
28:22cases out there in the Ninth Circuit who've all followed the same rules should not be required to
28:27start over. Isn't the Isn't the settled law that when we de declare a judicial construction of
28:33something that that just is what the law is and we don't apply it retrospectively like we're enacting
28:39a statute with a prospective effective date. I believe I believe you can't be legislative in that
28:44way. I I I believe the case well I I I I think it depends on whether you are changing a law entirely
28:50and it has not been foreshadowed and if that's the case it's applied prospectively only and not
28:55retroactively where you have the discretion to do that but we're typically looking to see whether
28:59or not we're clarifying in this case would be clarifying a statute. So and if we're clarifying
29:05a pre-existing statute I think it is uh the law. I I but I I I guess I guess it's a question of what
29:11do you mean by clarifying because this because it sounds to me like what you're talking about of
29:15course I don't know but we'll find out. What it seems like you're talking about is saying we're
29:19going to get rid of the test and we're going to start with a new one. I think the problem is the
29:23question is whether we're uh starting over with with with sort of you know case law as opposed to
29:28interpreting a statute and then you get into run into the problem that Judge Collins is mentioning.
29:32And I and before you think that I'm a hostile uh uh party here, I'm very concerned about
29:39expectations because we've had this test. There seems to be a broad consensus that it's not maybe
29:44served us very well. And um but people have been contracting around it and there have been
29:49expectations. So I think I do think we we approach this with a lot of care, but I'm I'm not so sure
29:55you're correct that we have the option that you're suggesting that we could just decide to
29:59do this only prospectively. Fair enough. Well, I will get to that. Let me just go through the rest
30:02of the summary and then I'll get to each of these points. Point number three, it's conceivable you
30:07could make the following decision. We're going to get rid of or change the intrinsic test,
30:11but we're going to keep the extrinsic test. And if you do that, I also think you have to affirm. One
30:18of the big errors that I think has been made in this case is the suggestion that the jury
30:24decided this based on the intrinsic test. There's just no reason to believe that that's the case.
30:30The jury decided a general question on were these uh inf alleged infringements substantially similar
30:37and the answer was yes. That means that under case law you have to infer that the jury decided
30:43both tests in our favor. And the truth is uh uh uh if you saw the closing substantially similar
30:51the answer was no. Yeah. The answer was no. Yes. Right. Yeah. Right. So they can't tell. So doesn't
30:55that mean it has to go back? No. It means if you can't tell, it means you have to infer that the
31:00jury decided both tests in our favor. That's the inference that you have to make. And most of my
31:05argument in the closing was about extrinsic. That's the thing. That's the point. Why is it
31:10that we would have to uh make that assumption? I I believe case law says that when the jury makes
31:16a decision, you have to infer that all factual inferences were made in favor of the verdict. But
31:22you agree we could still make a Jolole analysis as to whether or not the extrinsic issue even though
31:28it was submitted to the jury comes out as a matter of law in the favor of one side or the other. I
31:34certainly do believe that you you can and should examine the extrinsic test exttrinsic test as it
31:40applies in this case. And what I will argue is if you look at the three cases that have gone forward
31:46in this circuit, three cases involving living things that were photographed in a way where they
31:53were posed by the photographer, something that happened here, and you analyze the standard in
32:00Brent Master and Woodland and Fulkins and apply that test to these alleged infringements. There
32:06is more than enough evidence for the jury to have decided in our favor. Point number four,
32:12and then I will get back to whichever the ones you want me to talk about. Whatever you do,
32:17the one thing you're not going to be able to see is what the jury and the trial judge made their
32:22decision on with respect to the tattoo. I It is not the same substitute to look at a photograph
32:30that was taken the day the tattoo was finished before Mr. farmer's arm healed that is dark and
32:36grainy and cut off and make a decision about the tattoo. When the jury saw the tattoo, Mr.
32:42Farmer paraded up and down in front of the jury. He sat in the witness box and the court examined
32:48his arm and no effort was made by the plaintiff in this case to say, "Hey, we need to figure out to
32:55preserve away what the jury saw so that if we go on appeal, the court can see what we saw."
33:00You don't have that. And under the antony case, if it's not in the record, you can't reverse. But you
33:07think we can rule for you on the record that we have because because the jury made that decision
33:13because you you can't you can't reverse what the jury did because you haven't seen what you can't
33:17see what the jury So you're saying we we're just disabled from granting a J Mo because we didn't
33:22see the tattoo in person? We don't have a record we can rule on. We're disabled and disqualified. I
33:29I am saying that the plaintiff did not preserve in the record what the jury saw. Do we have a
33:36video showing the tattoo? There is a dark video. There is in the record and it's it's I'll tell
33:44you it's better than the photograph. Uh but it's still taken the day that the tattoo was completed
33:50before his arm was healed. And I don't and it's it's not a very good video, but you do have that.
33:55That's true. Tell if we disagree with you on on if we disagree with you on your points three and
34:02four. Yes. Um what happens to fair use as to the tattoo and does that analysis flow with the rest
34:10of the social media post or do we split it and handle the tattoo differently than the jury's
34:16findings of fair use on Let's let me clarify fair use. The jury decided that one social media post,
34:23the process post was a fair use. It's the photo. It's the one It's the one post that actually had
34:29the photograph in it. And so we didn't submit it to the jury as to substantial similarity. We
34:35conceded they were substantially similar because it showed the photograph. There was no rule 50
34:40motion brought with respect to to the fair use finding. The argument about the jury instructions
34:46is simply wrong. The court there are four factors and four use. The court had decided two in our
34:52favor. In my closing, when I went through each factor, I said to the jury, we win on factor one,
34:58factor two is against us, factor three is against us, and factor four we went on. But council, don't
35:06you think it would have made a big difference if there if the judge herself had um instructed
35:12them that she had previously ruled as a matter of law as opposed to it just being in your argument?
35:19I I I I don't I think that if both sides both lawyers on both sides say factor two and factor
35:25three weighs in favor of Mr. Sedick, I don't know how the jury could decide anything else. See,
35:30I don't I don't understand how if we decided that the jury didn't get the correct instructions. I
35:37don't I'm not hearing you say that we have to somehow assess the weight of that error. Was it
35:45prejuditial? Was it harmless? Or whatever. I I I think you do have to decide whether it's harmless
35:50error. And you just say it's harmless. I say it's harmless because I argued the wrong law. Well,
35:57but you're but we tell the jury what the attorneys say isn't the law. That's not the evidence. It's
36:02not the It's what the judge tells you is the law is the law and the evidence is what you heard. I
36:08understand that. But if both attorneys say the same thing, it's hard to believe the jury will
36:12come to a contradictory conclusion. And but as to but as to the ones where the jury mistakenly
36:19found both there wasn't substantial similarity and there was fair use. Isn't it clear that the
36:26fair use finding was in the context and set against the background of the fact that they
36:34had been instructed in a particular way as to substantial similarity. I don't know why. And
36:40if we change the substantial similarity test, the jury then approached fair use with a wrong idea of
36:46substantial similarity going in which may have affected their fair use determination. I don't
36:50think substantial similarity has any relationship to that. But I will tell you the tattoo,
36:56the sketch, and the the three or four social media posts that that are not the process post,
37:02those need to go back to the jury no matter what. But yeah, there there's no the opposing
37:06council seem to suggest concat that point. Yeah, that would have to go back to the jury. That has
37:10not been decided. Can can you explain? You seem to think that healing the tattoo somehow changed it
37:16in a way that's relevant. Can you describe to me what relevant way it changed? I I just I I
37:21just think that when when somebody has a a needle put in their skin, we can understand that there's
37:27going to be it's going to be redder. It's going to change the way it looks. And then after a period
37:32of time, when somebody's arm heals, it's going to look differently. The the bottom line is it was
37:38That's not what the jury looked at. The jury didn't make the decision based on a photograph.
37:43There's a claim based on the photograph, and you can certainly decide that the photograph,
37:48I don't agree with it, but you could decide that the photograph was substantially similar,
37:52but the fact that the photograph is substantially similar doesn't mean that the that the arm is
37:57that the arm that the jury looked at that day in court. But isn't your argument council that it's
38:04not substantially similar based on mere change of the medium? I am not I am not making that
38:10claim at all. So I I I will skip to talk about the extrinsic test because I I think that's the
38:17important distinction here. the the test that's set forth in uh Retester and uh uh Fulcans and
38:25Woodlands is basically a three-part test for photographs because photographs are dealt very
38:30differently than everything else. Another reason why maybe this is the wrong case to be talking
38:34about changing the rules. The first thing that you do when you look at the extrinsic test is you take
38:41out what's in the public domain or scenes affair. That's the first thing. And it's very interesting
38:46what they said in Rentmester. The quote from the case is Jordan attempting to dunk in a pose
38:52inspired by the ballet's grand ché an outdoor setting stripped of most of the traditional
38:57trappings of basketball. A camera angle that captures the subject silhouetted against the
39:02sky. Retester cannot claim an exclusive right to ideas or concepts at that level of generality
39:10even in combination. The same thing is true here. Mr. Sedick does not own the rights to Mr. Davis's
39:16appearance. How Miles Davis looks, the marks on his face, how his nose looks, that he doesn't own,
39:23it's not protectable. It has to be removed. Second of all, the shush symbol is a scene's affair. In
39:30the uh uh brief that was filed by Limoshir, they came up with all kinds of examples in
39:36history where people go like this. So that's the first thing you have to do is those concepts are
39:41out. And that's the main part of the photo. Step two under the test, which was set forth in Apple
39:47Computer, is that Mr. Sedlick was obligated to identify the uh sources of alleged similarity.
39:55And he did that on the record and he's now stuck with what he said because this is what he listed
40:02as the sources of similarity. Placement and arrangement of Davis's fingers. We can argue
40:07with it seems to me that's not protected, but fine. The wardrobe and jewelry he selected,
40:12not in the tattoo, not in the social media posts. How he modeled Davis's jacket, not in the tattoo,
40:19not in the social media posts. How he caused Davis's hair to be styled, including placing a
40:25lock over his ears. Miss Vondie testified and the tattoo shows the hair is different. It's not the
40:32same. The way in which Mr. Sedlick was reflected in Davis's eyes, not in the tattoo, not in the
40:38social media posts, the furrowing of Davis's brow. Miss Fondee specifically testified, "I
40:46did not make the brow furrowed, and it's not. It's different." And finally, the shading and shadowing
40:53created by Mr. Sedlick's lighting. Miss Vondie started over at that point. She sketched her
40:59own idea of what the shadowing and shading should look like. So the third test under under Woodland
41:07and Rhett Mester is that it's you have to look at the whether the competing work features the same
41:13selection and arrangement of elements and based on Mr. Sedlick's admission that didn't happen. What's
41:21similar between one and the other is the is is what's in the public domain and what's a scene's
41:28affair. Mr. Sedle or Mr. Davis's look, the idea of Mr. uh uh Davis doing the shush symbol, an angle
41:37that is common in photographs, that's the point of all these cases. In fact, it's just not possible
41:43to say that a photograph of Michael Jordan with a basketball's hand at an angle in the air that
41:51is exact that is copied the same post that that's any less similar than the post here. Can I ask you
41:58about your reliance argument? Because I'm trying to understand. So, it's one thing if you say
42:02the litigation is midway. We've already written the briefs and we've written it on one test and
42:06now you might change the test. We have to redo our brief. But it's another thing if what that
42:10might be what you mean by reliance, but the other possibility is you mean like artists have actually
42:15done their art in reliance on the test. I'd like you to answer which one and then if it's the
42:20second, how an artist would know where they might be sued for copyright because all the different
42:25circuits are different. I I'll be honest. I can't tell you that I I know that artists have relied on
42:29this. They may have, they may not have. I'm I'm not saying that. I'm saying that in litigating
42:34cases, and there are a lot of copyright cases out there right now, everyone is litigating based
42:38on what the rules were. You're making decisions about whether to get expert witnesses, what expert
42:44witnesses to get. You're making decisions about what the evidence is and what you're going to put
42:48in. That's something that everybody has relied on because it's been the same test for 30 years. And
42:53you make decisions about what you're going to move for summary judgement on, what you're not going to
42:57move for. Well, if the the tests that I think it I actually think the first two cases Roth Cards and
43:07Zen Marty Croft weren't referring to total concept in it and and feel they were actually referring to
43:16something more like the work as a whole but then it got warped in Shaw to just to be concept and
43:26that's directly ly against the copyright act itself. Copyright act itself says nothing in
43:34this act uh protects concepts and feelings and ideas. It's the expression the concrete
43:42expression of those ideas. And so, you know, maybe we had somebody called something creep,
43:54you know, idea creep or something over those 30 years. But if we've got the statute wrong,
44:01um, shouldn't we correct it? I mean, change our law to reflect the accurate nature of the statute.
44:10I I'm certainly not gonna take the position that if you got the statute wrong, you shouldn't change
44:16it. I I would not say that. But I will say this in the Amigus briefs and the concurring opinions,
44:22there was reference to various Supreme Court opinions that uh the Baker versus Siden case
44:28which is from 1879 which talks about you don't protect ideas and scenes of fair. You talk about
44:34the Feist case which deals with compilations also something relevant to photographs. But there is a
44:40more recent Supreme Court case that talks about copyright and it's Petrella versus MGM. It was a
44:46latches case and in that case the majority looked at how would a defendant or would a defendant be
44:55prejudiced if a case was brought 10 years or 15 years after the alleged infringement. And this is
45:01what the majority said in that case. Quote, "Kevin in the litigation then will be the certificate,
45:08the original work, and the allegedly infringing work. And the adjudication will often turn on the
45:14factfinder's direct comparison of the original and the infringing works. That is on the factfinders
45:20good eyes and common sense in comparing the two works, total concept, and overall feel." Now,
45:27I get it. This is not the Supreme Court ruling on substantial similarity. But if the Supreme Court
45:33in talking about what the test would be uses the phrase total concept and overall feel, it doesn't
45:39mean nothing. It means they obviously aren't so upset about that phrase that they immediately cut
45:44it out and put in something different. That's what they seem to think the test is or that's
45:48what they seem to think that the factfinder will do. And and there's this idea that total concept
45:55and overall feel should come out. I I just don't think I understand that people don't like it,
46:00but I don't think that there's a basis for getting rid of it. There's a purpose. I think
46:04the elephant in the room for you is that everyone that looks at the photo and looks at the tattoo,
46:12or not everyone, but a lot of people. And it is like it looks just the same. It's got to
46:19be a copyright violation. So, if that's the case, they must have been told the wrong law.
46:25That's kind of the elephant in the room for you, right? Well, see, so that kind of appears
46:30it's sort of like when you see an injustice, people are how did that happen? Right. Well,
46:35that I mean, look, obviously there are people who disagree with what the jury did here. I I
46:40hope that it it really seems wrong to say if and I'm not suggesting you are saying this, but it
46:47seems like an extra elephant in the room. Yeah, it seems like a really incorrect position to say,
46:52"Well, we don't like the decision in this case, so we're going to get rid of something that's been
46:55in effect for 30 or 40 years." But the point is the fact that somebody looks at it and and thinks
47:01they're similar. We we know that everybody doesn't think that. I mean, obviously the jury didn't
47:05think that and obviously there's some copyright law professors who submitted Amikas briefs who
47:09don't think that. So, it's not everybody. And that's by the way that's kind of a total
47:14concept in field but it gets to the reason why the intrinsic test is there and and one of the amikas
47:22briefs that was filed which is the the idea is if you just have an objective element byelement test
47:29you risk missing missing the forest for the trees right you're you're supposed to look that's what
47:34the original concept from sid Marty crop where Mel Nimmer was actually the advocate for this position
47:42Um the original concept was you can't just look at the trees. You're supposed to look
47:47at the forest. That was and that's what devolved into total concept and feel understand but one
47:56of the AMA's briefs that was filed well and and because I think you noticed in the in
48:01Mr. Sedlick's brief in the brief of the American Photographic Association who interestingly very
48:05much against me but wants to keep the intrinsic test with minor changes. They both talk about the
48:10fact that the way people process art is through both through individual elements and as a whole.
48:18And so it's a little difficult to get somebody to understand whether something is substantial
48:23similar and to make that decision if you're not doing both because that's how people process art.
48:29And I thought it was fairly interesting that there was this brief by professors Lee and Mosheria who
48:35talk about these two empirical studies that they conducted that show that people who have legal
48:40training consistently reach the opposite result on substantial similarity from the one reached by
48:46lay respondents. Now maybe that's okay. Maybe the Ninth Circuit says we're okay with people
48:52with legal training making these decisions and if they're different than lay respondents that's
48:56okay. But that certainly wasn't the original point of substantial similarity. Way back at Arinstein,
49:03they talked about wanting to have what the normal person, what the average person believes and and
49:10so I I don't think it's such a strange thing to have total concept and feel. So let me just how
49:14can you h how could it ever be reviewable with the intrinsic that's I mean that's one thing
49:20judges struggle with. If how can something be reviewable? How can I tell you your feeling is
49:26wrong if it's something so amorphous? Okay. Well, so you're right and and and the intrinsic test as
49:34it's presented right now is not reviewable. Um uh uh I get it. I understand that. My point is only
49:43it's not the only test that you have to deal with that's not reviewable. It's it's not even close.
49:48We deal with a lot that are hard to set aside and that we deal with a lot of tests that are hard to
49:54set aside. But I don't know how I could ever set aside someone's feelings. How can I review
50:00someone's feelings? Understand? And and so I mean my understanding from I I'll cite United
50:07States versus Croft 124 Fed 3rd 11:09 where the Ninth Circuit said we are powerless to question
50:14a jury's assessment of witness's credibility. And there's a later case, Yosenth Thorn, that says,
50:20"The credibility of witnesses is a question for the jury unreviewable on appeal." This is where
50:25I kind of disagree with Judge Johnstone's cons concurrence that juries decide facts,
50:29not feelings. I mean, that's not how credibility is decided. Credibility is decided by I hate to
50:36use this word, but a holistic sense of what you think about this witness. And if you have a case
50:42where the plainif disagree or plainif says one thing and defendant says another and the jury
50:48says I agree with defendant and not plainif that case is not going to get overturned because you
50:53can't judge a jury's view of credibility. So maybe you don't agree that this analysis is similar to
51:00the credibility anal is similar to credibility and and that's you know I think that's I think that's
51:07a that's a fair point but then and we don't often overturn that because we all know that how someone
51:14if they look shifty or how their body movement all of those things but if we had a case where someone
51:20said well I just decided against them because they're African-Amean Okay, bingo. That would
51:28not be an approp There there are improper things in evaluating credibility. But I I agree with that
51:36and I But here I just have feelings. There are no What is an improper feeling? Well, it's not I mean
51:43I don't think it's a feeling. It's an analysis. It's a holistic analysis. The way people look at
51:48things. But again, I don't I understand that this is part of the test and I understand you guys are
51:54concerned about this part of the test and I get it. But for me, we win on the intrins extrinsic
52:01test. I mean, for me, that's what's when you have a situation like this where yes, on first glance,
52:08I'm sure a lot of people say these things look a lot alike, but that's because of the unprotectable
52:13elements. That's why they look alike. That's because of the ideas and concepts that are
52:18in these two works. And by the way, we're only talking about the tattoo. Once you get to the
52:23social media posts, and I I should not skip that. It's a whole different situation. It's not close.
52:30You talk about the messy progress post that shows a a blurry eye and part of a nose. There's no
52:37finger. There's no hair. There's no neck. There's no jewelry. I truthfully I should have won summary
52:44judgment on that. Not similar at all. You look at the sketch that really more of a fair use
52:51issue because it was solely used for sizing and placement. That sketch has none of the shading.
52:58It it is it it is unquestion. It is is within the jury's ability to decide those two things
53:05are not substantially similar and they don't they don't share the same holistic element and feel.
53:09When you look at the cat at the light post post, you can barely see the the photograph,
53:16it's blurry and unreable. That's not close. So, the only things we're talking about where I get
53:22it, it's a closer call is the tattoo and the photograph of the tattoo. Um,
53:27and I just want to be clear on your earlier answer. So, we just ignored the inconsistency uh
53:33in the jury finding as to the final tattoo social media post where they find that both it was not
53:40substantially similar um and yes, it's fair use. Yes. My understanding I mean my understanding of
53:45the law is that the jury was was instructed not to if you find something is substantially similar,
53:51do not go to the fair use test. And so under those circumstances, you ignore the second answer. So,
53:57I do not believe I believe that taints the rest of the fair use finding. I I don't see how it taints
54:05the rest of the fair use finding. It's a different It's a different pro uh it's a different uh work.
54:10It's a different analysis. Are you familiar with um Yan versus Paramount Pictures? Um you said
54:17Yanni. Yani versus Par. I I I'm not. Fair enough. Thank you. Um, and I'm very confused by your idea
54:26that we can assume that the jury found in your favor on both. It seems like you argued that,
54:30but the logic of that doesn't make sense to me. Can you try again to explain why you're saying
54:34that? Um, I think the answer to that is yes. I'm just looking at I think we're looking at the
54:40verdict form. We know the question they answered. The question is how'd they get there? And and
54:45what if we if we can't tell and I don't think we can tell then what my All right. So it I relied
54:51upon the escrea versus foster poultry case and the divine dharma case. Both those cases are cited in
54:57our original brief that the court has to draw all reasonable inferences in favor of the non-movever.
55:03In the divine dharma case it says that means was that I I am not I don't remember enough to know
55:07whether there were here it's like two elements and the jury would have found um in your favor
55:13if either one of them didn't exist. And so now you're saying because they found in your favor we
55:18have to assume they found both. And I just don't understand that. And those cases I don't remember
55:21that they had the same feature. Well, I I'm not sure that the the feature is exactly the same,
55:26but I think in Divine Dharma, I think it did involve a jury verdict. And I think the involve
55:31a jury the question of whether the the question on the verdict form matched this two element type
55:36of situation that you have here. I I don't know whether it was exactly the same, but I do believe
55:40that if you have to infer that the jury decided all f resolved all factual disputes in our favor,
55:47if they had divided the questions, we could have done that for either one separately. But once
55:51they're lumped together, I don't see how we do that. Well, I I I think you could certainly review
55:57it. Um I I I I guess I just disagree with you on it. I think that if you're resolving all facts in
56:03favor of the non-moving party and the jury decides a general question in our favor, but that would
56:08mean you'd never you'd never be able if you think the instructions are wrong, it would never come
56:12out differently because just because the verdict was in your favor, the whole reason there's a jur
56:16a trial otherwise there'd be summary judgement. There's a trial because there's a fact dispute.
56:20It seems like your argument would mean that every time someone wins a jury trial, no matter what the
56:25instructions were on appeal, they always have to win again. No, I I I don't I don't think that's
56:29right. I I I I wouldn't say that. And and there isn't an argument about the substantial similarity
56:34instructions here. Um the these substantial similarity instructions which primarily were
56:39proposed by Mr. Sedlick's side and which nobody complained about until the concurring opinions
56:45came out, those are his instructions. Uh but they were told that it was intrinsic and exttrinsic to
56:51get to substantial similarity. Yes. And so they definitely are complaining about some of those
56:56instructions. They they are now at the petition for reharing. They didn't before then. Okay. Well,
57:02that's a that's okay. That's a different point. I think that's my time. Thank you. Thank you.
57:13Are you familiar with Yan versus Paramount Pictures? Yes, I am. Should we wait for it?
57:18No. And the petition for search is a footnote that suggests the Supreme Court should wait for this
57:23decision. Well, I think the responsive briefing is due in like two weeks or something. Isn't that
57:30right? Yeah, there was a conference yesterday, but I don't know that decide. But they suggested
57:35that the Supreme Court wait for you. So, we do too. U opposing council's argument is basically
57:41this that no matter what the jury does, it can't be reviewed. And that's just too bad. Even though,
57:48as Judge Callahan said, everybody knows something went really wrong. Why did it go wrong?
57:53It went wrong because of the legal test. Yes. The fundamental flaws that both Judge Warren saw and
58:00um Wlaw and Johnstone identified are the reason why. It's a legal test. That is your job. Your job
58:06is to formulate a correct. We don't really know that. What we know is if we were to change this
58:11test, I think it's awfully hard to say that it's harmless error. That's the problem. The jury might
58:15make the same reach the same decision. So, we have a defendant who, despite what was just said,
58:20admitted it was 100% exactly the same. Those are their words, not ours. How could you ever have a
58:28substantial similarity test where the defendant admitted it was 100% exactly the same and say
58:33they're not substantially similar? Substantially similar is less than 100%. But I'd like to quote
58:38what Judge Johnstone found about what was coffee. Here's what he said. He said that her work
58:46shares all the major creative elements. Davis's distinctive finger pose arranged by Sedlook. His
58:52facial expression encouraged by Sedlook. His dark wavy hair surrounding the face styled as Sedlick's
58:59direction. The shadows and highlights on his face and hands lit by Sedlck and specific angle,
59:05position, and focus of the viewer's perspective chosen by Sedlick. Van Draenberg admitted at
59:10trial that these features were very similar to the photograph. Indeed, Vanraenberg's friend had
59:16asked the tattoo match Sedlick's photograph. She followed the process designed to do so, and her
59:22shop concluded that she succeeded. It touted the tattoo as 100% exactly the same. If there's not a
59:29case where you can copy 100% exactly the same the copyright work, there's no copyright law.
59:36And I think there is and there should be on on the question, what about this idea that we didn't see,
59:41we only saw the photo, we didn't see the arm. I mean, say this guy gains a lot of muscle and
59:47it distorts uh it distorts the tattoo. Does that change the copyright analysis? And do we need to
59:54be able to look at what the jury actually saw as opposed to how this was put on? I think there's
1:00:00two aspects of that. One of which is I think the jury saw from probably six to 10 feet away. So
1:00:05the idea that they had a better view than we do from the photographs factually may not be true but
1:00:11there is an amikas brief submitted by the tattoo when was the photograph taken that was taken at
1:00:16the time at the tattoo right day after I believe so or a day after yes so you have an amikas
1:00:21brief by the tattoo artist I think it's rather significant that the amikas from the tattoo artist
1:00:27was an our support not theirs but the tattoo artist said that there is nothing nothing in
1:00:33that tattoo that is not in the original other than that's on the shape of the arm. I mean, as Judge
1:00:40Callahan said, everybody knows in looking at those two works that they're identical and changing the
1:00:45medium doesn't change that impression. We all know it's true and we all know why. The why
1:00:51was the legal test. I think Judge Nelson just asked an interesting question about when do we
1:00:55assess this? Like what is the do you have a case that tells us exactly the time we would assess
1:01:00the similarity? Because I mean your opposing council saying the day after it's still healing,
1:01:04but later you could get tan. You could you could you could do other things. You could have more
1:01:09muscle and then then it's going to change. So when when do we assess? Yes. So I guess you would have
1:01:15to assess it at the time the infringement occurred and the infringement would have occurred during
1:01:20the making of it. I think yes. But even taking that there are 100% damages question then or not?
1:01:27I mean what are the damages here by the way? What are I mean? We're spending a lot of time on this.
1:01:32You guys have spent a lot of time. Your clients have spent a lot of money. How much money are
1:01:35we talking about at the end? The damages would be what a reasonable license fee would be. Yes. Okay.
1:01:42And do we have any idea how much? And that was a that was a question and Mr. Sedlick attempted to
1:01:48be to provide expert testimony on that, but it was excluded. But that's that would be the damages.
1:01:57I'm out of time. Thank you very much. I appreciate your oral argument presentation. Um,
1:02:04Mr. Potry along with Mr. Godsky. Thank you very much. The case of Sedlick versus
1:02:11Von Draenburgger is now submitted and we are adjourned. All right.