[00:00:09] Speaker 00:
When you're ready, Council.

[00:00:20] Speaker 01:
Good morning, Your Honors.

[00:00:21] Speaker 01:
May it please the Court.

[00:00:22] Speaker 01:
Raj Kandesha on behalf of Appellant Annabiani.

[00:00:26] Speaker 01:
I would like to reserve four minutes of my time for rebuttal.

[00:00:30] Speaker 00:
All right.

[00:00:31] Speaker 00:
The total time is displayed, and I'll try to remind you, but keep your eye on the clock as well.

[00:00:35] Speaker 01:
Thank you, Your Honor.

[00:00:36] Speaker 01:
Your Honor, the reversal of the district court's dismissal order here is warranted for three interrelated reasons.

[00:00:44] Speaker 01:
First, most significantly, the district court applied the wrong test for the element of copying.

[00:00:52] Speaker 01:
In order to assess whether or not the complaint here plausibly pled a claim that the appellees copied

[00:01:00] Speaker 01:
appellants protected works, the court excluded from the analysis unprotectable elements despite the teachings of this court in Rentmeester.

[00:01:10] Speaker 03:
Even if they haven't included them, don't you still lose?

[00:01:15] Speaker 01:
Your Honor, we disagree.

[00:01:16] Speaker 01:
We believe that once you consider all of the elements, both protected and unprotected,

[00:01:23] Speaker 01:
The similarities between Appellant's works and the characters on the show are numerous, they're striking, and frankly, they plausibly cut against any notion here that police characters were independently created.

[00:01:41] Speaker 01:
And recall that we're at the 12b6 stage at this point.

[00:01:47] Speaker 01:
So the first error- Well, hold on.

[00:01:50] Speaker 03:
Now, I understand that the main characters, they dressed in this, the corsets, they dressed in the characteristically Victorian dress, but really aside from that, there were very few similarities.

[00:02:10] Speaker 03:
Here, we were talking about,

[00:02:13] Speaker 03:
Charlotte and Vanessa, while they were both sort of sexually provocative, Charlotte was drawn to young boys and girls while Vanessa did not show any interest in young boys and girls.

[00:02:25] Speaker 03:
They both are witches.

[00:02:26] Speaker 03:
That's the end of the similarities because Charlotte used herbs to make potions and sometimes kill people.

[00:02:33] Speaker 03:
In contrast, Vanessa has supernatural abilities.

[00:02:37] Speaker 03:
Charlotte is described as an assassin and believes killing people to cleanse the earth, whereas Vanessa does not frequently kill people.

[00:02:46] Speaker 03:
I mean, that seems to be quite different.

[00:02:52] Speaker 01:
So, Your Honor, I think what you're pointing to are differences that Appalise have pointed to.

[00:02:57] Speaker 01:
We do not disagree that there are differences between the characters.

[00:03:02] Speaker 01:
I think if you look at the teachings in Rentmeester, Skidmore,

[00:03:07] Speaker 01:
Hanagami and other cases that have followed Rentmeester, it's clear that for purposes of assessing the probative similarities, similarities that are probative of copying, this Court has said those similarities need not be extensive.

[00:03:23] Speaker 01:
They need only be such that they are unlikely to have arisen had the works been created independently.

[00:03:33] Speaker 01:
In the litany of similarities, Your Honor, I think one has to also consider the fact not only are Charlotte and Vanessa witches and herbalists, they both also had fraught relationships with the church.

[00:03:44] Speaker 01:
That's clear.

[00:03:45] Speaker 01:
Those are important characteristics of both characters.

[00:03:49] Speaker 01:
Looking at the similarities between Frederick and Vanessa,

[00:03:52] Speaker 01:
Both characters experience episodes of grand mal seizures that lead others around them to believe they're possessed by evil spirits.

[00:04:00] Speaker 01:
In fact, this is one of the most distinctive characteristics of Vanessa.

[00:04:05] Speaker 01:
We see that on episode two of season one.

[00:04:08] Speaker 01:
It really announces who Vanessa is to the world.

[00:04:12] Speaker 01:
That is critical to the character.

[00:04:14] Speaker 01:
I didn't watch the episodes.

[00:04:17] Speaker 00:
Understood.

[00:04:17] Speaker 00:
That argument, the Grand Malais and all that leads me back to your original point, which is whether the district court applied the proper test in the first place.

[00:04:28] Speaker 00:
Because I think we can, given the fulsomeness of the characters developed,

[00:04:34] Speaker 00:
By your client as well as by Now many episodes in the show I think we can always dig down and find some similarity and some differences so I'm not convinced that some filtering of unprotected elements isn't appropriate for purposes of

[00:04:54] Speaker 00:
showing striking similarity.

[00:04:57] Speaker 00:
I'm not convinced of that, and I want to hear your argument again on that.

[00:05:00] Speaker 00:
Because isn't the whole point of analyzing striking similarity is to figure out whether the works are independently created?

[00:05:09] Speaker 00:
And in doing that, some of the stock characteristics necessarily has to be filtered out, don't they?

[00:05:18] Speaker 01:
Well, I think there are two responses to that, Your Honor.

[00:05:20] Speaker 01:
The first is, I think, to recall what the inquiry is here on copying.

[00:05:25] Speaker 01:
And I think if you look at Professor Nimmer, he makes a cogent point, which is really the inquiry of probative similarity is an evidentiary one.

[00:05:34] Speaker 01:
Is there sufficient evidence here to support an inference at the particular posture we're at?

[00:05:39] Speaker 01:
We're at 12b6 right now.

[00:05:41] Speaker 01:
Is there sufficient evidence in what's pled in terms of similarities?

[00:05:45] Speaker 01:
to support an inference that it seems likely, plausibly likely here, that the appellees or the defendant copied the plaintiff's works.

[00:05:55] Speaker 01:
If one were to start to excise at this stage and snip away things that are deemed unprotected, there are two problems.

[00:06:02] Speaker 01:
One is, as Professor Nimmer points out, you can always reduce protected elements of a work to fundamentally unprotectable, right?

[00:06:11] Speaker 01:
Words themselves are not protectable.

[00:06:14] Speaker 01:
It's the combination of words in a distinctive sequence that can give rise to protection.

[00:06:19] Speaker 01:
So there's a danger in that.

[00:06:21] Speaker 01:
by exercising, by analyzing, you're going to miss the evidentiary moments where you actually have before you evidence that would support an inference of copying.

[00:06:33] Speaker 01:
The second issue is that we are here on 12b6, where there's been no expert discovery.

[00:06:38] Speaker 01:
frankly, no discovery at all.

[00:06:41] Speaker 01:
Now, in some cases where you're dealing with, for example, two patterns of lace, it may be easy for the court to simply look at the two works and say, okay, this is either strikingly similar or not.

[00:06:54] Speaker 01:
When we're dealing with these particular works, though, we get into very complicated questions as to what exactly is inherent to the genre.

[00:07:03] Speaker 01:
We're dealing with Victorian era crime genres, but we're also dealing with works, Penny Dreadful on the one hand, My Client's Works.

[00:07:14] Speaker 01:
that expressly draw from publicly available elements and so forth, but then build upon those.

[00:07:22] Speaker 00:
Right.

[00:07:23] Speaker 00:
You raise a fair point.

[00:07:24] Speaker 00:
And I think at the striking similarity stage, that analysis can involve and overlap a protected and unprotected element.

[00:07:34] Speaker 00:
So I'm not suggesting that we exclude it altogether.

[00:07:38] Speaker 00:
And we've said that in Skidmore and in other cases as well.

[00:07:43] Speaker 00:
in talking about striking similarity, pale, beautiful brunette dressed in Victorian era for example, I mean that, if anyone has any passing familiarity with literature for example, you would have to necessarily filter that out whether you're calling, you're not filtering out all of the protected elements but you necessarily wouldn't consider that because that's so common that I don't know how it's probative of copying.

[00:08:13] Speaker 01:
I understood, Your Honor, and I would agree with that.

[00:08:15] Speaker 01:
I would say if we were here today and that was the only similarity and we were arguing that this was striking, I think we would have issues.

[00:08:22] Speaker 01:
Our point is that that is simply not the only similarity.

[00:08:27] Speaker 01:
One has to look at the combination of elements together in appellant's work and then compare those to that which is similar in the accused infringing work here.

[00:08:38] Speaker 01:
Most importantly, the district court doesn't mention at all in its opinion and order the common use of the likeness of Eva Green to depict both characters.

[00:08:49] Speaker 01:
That's prototypically not a protected element of our client's work.

[00:08:54] Speaker 01:
However, we would argue that it is extremely probative of copying.

[00:08:59] Speaker 01:
It strongly supports an inference

[00:09:00] Speaker 01:
that those associated with the show, the Showtime series, had access, viewed my client's works, considered this association of this actress and thought, this is a compelling character.

[00:09:16] Speaker 01:
Now, of course, we're at 12b6, fact discovery remains to be completed to assess whether or not that is in fact what happened.

[00:09:24] Speaker 01:
But I think the danger of filtering the way the district court did is to disregard these points of... Well, in this case, what would fact discovery...

[00:09:32] Speaker 00:
Add to the analysis right so you can look at all of the differences that Judge Mendoza points out and more and then you can look at all of the similarities that you that you briefed and was argued below as well and is it then a de novo review on our part as to whether striking similarities has been has been shown and

[00:09:54] Speaker 01:
Well, Your Honor, I think, yes, a de novo review is available.

[00:09:59] Speaker 01:
I think there's also the option to remand for the proceedings before the district court with an appropriate characterization of what the standard is to guide the district court's evaluation here of what is pled to the works.

[00:10:13] Speaker 03:
But it has to raise to the level of virtually impossible that the two works could have been come up with independently.

[00:10:23] Speaker 03:
That's a high bar, counsel.

[00:10:25] Speaker 01:
It's a high bar, Your Honor, correct.

[00:10:27] Speaker 01:
However, I would like to remind the court that we're here on 12b6.

[00:10:32] Speaker 01:
And the issue, I think, is appropriately framed as, is it the case that no reasonable juror could find that the two works were not independently created?

[00:10:46] Speaker 01:
That's the standard that should apply.

[00:10:48] Speaker 01:
It's absolutely the standard at summary judgment.

[00:10:51] Speaker 01:
It should not be a lower standard on 12b6.

[00:10:54] Speaker 01:
It's not the standard the court applied.

[00:10:57] Speaker 01:
The court simply made findings based on the record before her

[00:11:02] Speaker 01:
and made findings as to what was stock in the genre, what characteristics were not protected.

[00:11:11] Speaker 01:
And I would add, that's after having found my client's characters to be protectable under the DC Comics case.

[00:11:19] Speaker 01:
So at a minimum, the court had already made findings that there were protected elements, but disregarded those when it came to analyzing striking similarity.

[00:11:31] Speaker 01:
That inconsistency, I would submit, is because of a failure to apply the appropriate test.

[00:11:37] Speaker 02:
In analyzing that question, the striking similarity, is it appropriate for you to argue, and this is one of the arguments you make, is that the Showtime series uses one character and takes multiple attributes from different characters that your client created.

[00:11:55] Speaker 02:
That doesn't seem fair to me.

[00:11:58] Speaker 02:
But what will your honor I think it's encompassed by my clients right to control the creation of derivative works we would we would characterize Vanessa Ives as essentially a derivative of several characters and are there are there Kate okay two characters are there other cases where courts have done it that way where they've found infringement or substantial similarity whatever wherever you are in the test based on compiling various attributes from different copyrightable characters

[00:12:29] Speaker 01:
I'm not aware of any, Your Honor, but I'm not aware of any rule that would prohibit a theory of infringement on that basis.

[00:12:36] Speaker 01:
And you can imagine the bad policy or the bad implications that would result.

[00:12:40] Speaker 01:
I can infringe by taking two original protected characters and just combining them, getting around the ability.

[00:12:47] Speaker 02:
Well, I guess if you're in the striking similarity category of the analysis to Judge Mendoza's point,

[00:12:54] Speaker 02:
Because you don't have any allegations of access, it seems to me you've got to show that there's really no way this could have been created absent access to your client's work, and if it's strewn across multiple characters, to me it seems less likely.

[00:13:11] Speaker 01:
Understood, Your Honour, and I think that's part of the factual inquiry, and I don't disagree with that.

[00:13:16] Speaker 01:
I think here we're talking about Vanessa Ives being a compilation of two characters,

[00:13:21] Speaker 01:
multiple other points of contact between appellants' works and showtime.

[00:13:26] Speaker 01:
For example, the common use of the character of an explorer who is looking for a long-lost family member.

[00:13:34] Speaker 01:
Now, you could say, well, that's an idea.

[00:13:37] Speaker 01:
It's not protected, understood.

[00:13:39] Speaker 01:
But it is also indicia, it's evidence of

[00:13:43] Speaker 01:
of striking similarity that supports an inference of copying.

[00:13:46] Speaker 01:
So I would say you have to consider all of these facts together, take an holistic view, as Professor Nimmer says, and evaluate those facts.

[00:13:54] Speaker 01:
And that's what the court did not do here.

[00:13:58] Speaker 00:
Our questions aid into your aspirational time, but that's fine.

[00:14:03] Speaker 00:
You wanted to say four minutes.

[00:14:04] Speaker 00:
We'll put four minutes on the clock and rebuttal.

[00:14:06] Speaker 00:
Thank you.

[00:14:21] Speaker 04:
Good morning.

[00:14:22] Speaker 04:
May it please the court, my name is David Halberstadter and I'm appearing on behalf of the appellees.

[00:14:28] Speaker 04:
The district court applied the correct test in concluding that the two characters from the television series Penny Dreadful were not strikingly similar as a matter of law to three characters created by appellant and that appellant therefore was not excused from plausibly pleading appellee's access to her works.

[00:14:49] Speaker 04:
There's clear Ninth Circuit precedent that establishes that in assessing striking similarity, courts are to apply the extrinsic test which requires the filtering out of unprotected elements.

[00:15:02] Speaker 04:
The district court filtered out unprotected elements of the appellant's characters based largely on the description of the murder and roses forum itself which was included in the complaint.

[00:15:12] Speaker 04:
And the district court concluded that even if there were some remaining protectable elements,

[00:15:17] Speaker 04:
They were not striking enough as a matter of law such that any similarities would preclude the possibility of independent creation.

[00:15:24] Speaker 04:
Simply put, striking similarity is a very high bar used in rare cases and appellants characters did not come close to reaching it.

[00:15:34] Speaker 00:
I think admittedly our case law is a bit muddled in this area.

[00:15:39] Speaker 00:
We did say in Skidmore that in analyzing striking similarity, there could be an overlap between protectable and unprotectable elements.

[00:15:49] Speaker 00:
So in that sense, I wonder whether the court's approach was a little bit too rigid.

[00:15:55] Speaker 04:
So let me say this about Skidmore.

[00:15:57] Speaker 04:
In my view, Skidmore is entirely inapposite.

[00:16:00] Speaker 04:
It was a review of a jury verdict on appeal.

[00:16:07] Speaker 04:
There was no issue about access in that case.

[00:16:10] Speaker 04:
One of the appellees in that case, Jimmy Page, had admitted in deposition that he owned the album containing the allegedly infringed song.

[00:16:18] Speaker 04:
There was also no consideration in that case of whether similarities between appellant's work

[00:16:23] Speaker 04:
and Appellee's song, Stairway to Heaven, were striking.

[00:16:27] Speaker 04:
Striking similarity simply was not an issue in that case.

[00:16:31] Speaker 04:
So any discussion about the standards for striking similarity respectfully was dictum.

[00:16:37] Speaker 04:
It is true that the court said in one line in its general discussion about the test for copyright infringement that a plaintiff can attempt to prove the element of copying circumstantially by showing that the defendant had

[00:16:52] Speaker 04:
access to the plaintiff's works and that the two works share elements, similarities, probative of copying, and then it went on to say this type of probative or striking similarity shows that the similarity between the two works are due to copying rather than coincidence, etc.

[00:17:08] Speaker 04:
That one throwaway line, I have no idea, I've read that case.

[00:17:11] Speaker 03:
Hold on, and maybe based on overlap of

[00:17:14] Speaker 03:
unprotected as well as protected elements.

[00:17:18] Speaker 03:
That's the completion of that line which is an important piece that you left out.

[00:17:23] Speaker 04:
No, it is and I had it here.

[00:17:25] Speaker 04:
I just hadn't gotten to it yet.

[00:17:26] Speaker 03:
Okay.

[00:17:26] Speaker 03:
Well, I wanted you to get to it because that's what we're talking about here.

[00:17:29] Speaker 00:
Yes.

[00:17:29] Speaker 00:
And it cites the rent meister but to your point, neither rent meister or Skidmore really involve the question of,

[00:17:39] Speaker 00:
Access or at least access was not an issue in the case, but just going back to setting aside these cases going back to sort of first principles and looking at striking similarity Tell me why we can't consider at least some unprotected elements Well first and I will get to that answer there are two cases in the Ninth Circuit that deal with striking similarity head-on unit colors versus urban outfitters and Malibu textiles and

[00:18:06] Speaker 04:
And both of those cases, striking similarity was raised and was addressed.

[00:18:11] Speaker 04:
And in those cases, the court said both times quite clearly that substantial similarity and striking similarity are evaluated under the extrinsic test.

[00:18:24] Speaker 00:
I did say setting aside the case law.

[00:18:26] Speaker 03:
And the other part of what Judge Wen said is that our case law seems to conflate the issues sometimes.

[00:18:33] Speaker 04:
So the answer to the question that you asked is that if one considers unprotectable elements in assessing striking similarity, you could end up with anomalous results because you can't consider unprotectable elements when considering substantial similarity, which is a lower bar and a lower test.

[00:18:54] Speaker 04:
So theoretically, you could end up in a situation where a court would find two works to be strikingly similar, but not substantially similar.

[00:19:03] Speaker 04:
Moreover, if one were to consider unprotectable elements, but let me take that back.

[00:19:10] Speaker 04:
The standard for striking similarity as enunciated, at least in all of the cases without putting aside what one considers, is that it would be virtually impossible that the two works were created independently.

[00:19:24] Speaker 04:
But if the similarities include unprotectable elements, like ideas, historical facts, stock scenes, scenes of fare, that any creator can use, how could it be said that there was virtually no possibility of independent creation?

[00:19:42] Speaker 04:
For those reasons, I do not believe that the court can consider unprotected elements in evaluating striking similarity as the alternative to access plus probative similarity.

[00:19:53] Speaker 04:
Clearly, if one is evaluating probative similarity, the court is entitled to consider protectable and unprotectable.

[00:20:00] Speaker 04:
But once you move off of access and probative similarity into the zone of striking similarity, one has to apply the extrinsic test, filter out unprotectable elements, and look at the rest to determine whether looking at the protectable expression, is it conceivable, is it virtually impossible that the second work could have been created independently?

[00:20:22] Speaker 00:
And that brings us very close to the question of unlawful appropriation.

[00:20:28] Speaker 04:
It does.

[00:20:30] Speaker 04:
Agreed.

[00:20:30] Speaker 04:
And I think, frankly, I think, again, the Ninth Circuit is not completely clear on it, but I think that if one were to determine that two works were strikingly similar based on unprotected elements, you've kind of already gotten to unlawful appropriation.

[00:20:47] Speaker 04:
But that's why it's a high bar and used only in rare cases.

[00:20:52] Speaker 04:
Now, I don't think that there is any possibility that this court could compare the characters from appellants' submissions to the online forum and the defendant's work and find that they preclude the possibility of independent creation.

[00:21:13] Speaker 04:
For one thing, and Your Honor alluded to it,

[00:21:18] Speaker 04:
In order to make her case with respect to one of her characters, she had to, with respect to one of the Appellee's characters, Appellant had to borrow from three different characters to mix and match to put those similarities together to say that the Victoria character was similar to Charlotte and to Landon Lloyd and to Clarence Fitz

[00:21:46] Speaker 04:
I forget what the last part of his name is.

[00:21:50] Speaker 04:
The mixing and matching of three different characters into one of the appellee's characters would suggest to me, a fortiori, that no character is strikingly similar to the other that would preclude independent creation.

[00:22:07] Speaker 02:
What's your response to your colleague's argument that it's inappropriate to do this kind of analysis at the 12b6 stage?

[00:22:13] Speaker 02:
This is more appropriate at summary judgment or to leave to a jury?

[00:22:17] Speaker 04:
Well, frankly, I think this is exactly what a vast majority of Ninth Circuit opinions has done.

[00:22:28] Speaker 04:
There are, recognize that there are two more recent cases

[00:22:33] Speaker 04:
in which panels of this court have said, maybe we shouldn't be deciding these types of issues, including substantial similarity on motions to dismiss.

[00:22:44] Speaker 04:
But those are not the predominant view

[00:22:48] Speaker 04:
and not the predominant practice in this court.

[00:22:52] Speaker 04:
There are many, many claims of substantial similarity, not so many in the striking similarity area, but if you can do it for substantial similarity, you ought to be able to do it for striking similarity.

[00:23:01] Speaker 04:
There are many, many claims that have been decided on motions to dismiss and affirmed by this court both before and after the Alfred and Zindel decisions, which discouraged

[00:23:12] Speaker 04:
the granting of motions to dismiss on similarity issues.

[00:23:16] Speaker 04:
I can provide you a list of them, but for the best list, this court, actually not this court, yeah, this court, in an unpublished decision, Masterson versus Walt Disney Company, 821 Federal Appendix 779, that's a 2020 case, listed in a footnote about 12 decisions by the Ninth Circuit affirming motions to dismiss on similarity issues.

[00:23:41] Speaker 04:
So I do not think it is inappropriate in the right case.

[00:23:45] Speaker 04:
There are certainly some cases where discovery and or expert testimony would be highly informative and tend to make it more appropriate to consider the issue on summary judgment.

[00:23:57] Speaker 04:
But not this one.

[00:23:59] Speaker 04:
This one and this one, the court has all of the appellees, all of the appellant's works.

[00:24:04] Speaker 04:
They've got the entire first series, first season of appellee's television series.

[00:24:11] Speaker 04:
And it can see on de novo review that these works, these characters are just not strikingly similar such that it precludes the possibility of independent creation.

[00:24:23] Speaker 00:
Well, we have actually dealt with many of these cases on a 12b6 stage and have analyzed independently, but some panels have suggested that perhaps in the appropriate case an expert may be helpful.

[00:24:41] Speaker 00:
Can you address that issue with regard to this case?

[00:24:44] Speaker 00:
So they get all the inferences in their favor at this point, even though we've got all of the facts, the movies and the allegations, the complaint.

[00:24:53] Speaker 00:
But is there, I mean, maybe perhaps counsel can address this, an area in which an expert may be useful?

[00:25:00] Speaker 04:
I don't believe that an expert would be necessary in this case because I think that, as Your Honor recognized,

[00:25:06] Speaker 04:
you know, anybody who has even a passing familiarity with Victorian era London and Jack the Ripper and Dr. Frankenstein and all of those, you know, and all of that canon, you know, knows and is aware of what things are generic to Victorian era.

[00:25:27] Speaker 04:
Literally penny dreadfuls, those are the historic

[00:25:31] Speaker 04:
cheap, salacious stories that were printed up in that period.

[00:25:39] Speaker 00:
But the fact that the same actress was identified, that sort of jumps out at me.

[00:25:45] Speaker 00:
The same actress being selected, I think, is something that really... So the selection of cast members is not...

[00:25:56] Speaker 00:
There are many, many actresses.

[00:25:59] Speaker 04:
It is, but as it happens, this actress who is English has a history of this type of character.

[00:26:07] Speaker 04:
So it's not surprising that they picked the same actress.

[00:26:10] Speaker 04:
However, putting that aside, the selection of actress itself is not copyrightable.

[00:26:17] Speaker 04:
That's something that might have gone to Access, but the appellant didn't have any evidence

[00:26:25] Speaker 04:
that or didn't even make plausible allegations that anyone associated with the creation of the Penny Dreadful series had actually had an opportunity to view any of her submissions to this private online forum.

[00:26:39] Speaker 04:
So while I recognize that the actress is a notable eyebrow raising thing, from a copyright standpoint, it is utterly irrelevant.

[00:26:53] Speaker 04:
I want to address.

[00:26:55] Speaker 04:
I don't have a huge amount of time, and I would love to be able to go through all of the differences, the significant differences between the characters, but they are all addressed in the answering brief.

[00:27:09] Speaker 04:
And I think that the case law is clear that when two characters or two works have significant differences,

[00:27:18] Speaker 04:
it precludes striking similarity as a matter of law.

[00:27:22] Speaker 04:
And I think that's where we are in this case.

[00:27:24] Speaker 04:
To pick a perfect example, the male character in Penny Dreadful was an African explorer.

[00:27:38] Speaker 04:
The appellants cite to one of their characters, who was not an African explorer, he'd been to a variety of countries

[00:27:45] Speaker 04:
And it's those kinds of mischaracterizations, narrowly saying both traveled and explored Africa.

[00:27:52] Speaker 04:
Okay, but one explored Africa exclusively and repeatedly, and the other traveled the world.

[00:27:58] Speaker 04:
One was American, one was British, one was middle-aged, one was young.

[00:28:03] Speaker 04:
And so just looking at all of the differences between those, these characters do not meet the high bar for striking similarity.

[00:28:15] Speaker 04:
I do want to address one other issue that I think, I'm guessing this court has gotten past, but I want to raise it for what it's worth.

[00:28:23] Speaker 04:
I don't believe that the appellant is entitled to raise this issue at all on appeal.

[00:28:29] Speaker 04:
And if this court has already reached the conclusion that it has, that it is properly before this court, I won't say another word about it.

[00:28:38] Speaker 04:
But this issue was not raised at the district court level.

[00:28:42] Speaker 04:
Pellant in her reply brief cited to Western Watersheds for the proposition that an issue isn't waived if it was raised sufficiently before the trial court to rule on it.

[00:28:52] Speaker 04:
And she cites Ahantian versus Zenon pictures for the proposition that an issue also isn't waived if the district court addresses the merits of the issue, whether it was explicitly raised or not.

[00:29:03] Speaker 04:
The issue concerning the proper test for striking similarity, specifically whether a court should consider

[00:29:10] Speaker 04:
or filter out unprotectable elements from the analysis was not raised at all in the district court.

[00:29:18] Speaker 04:
The appellant did not offer any argument in opposition to the motion to dismiss about how the district court was supposed to evaluate striking similarity.

[00:29:26] Speaker 04:
She only argued that she actually adequately pledded.

[00:29:29] Speaker 04:
And the district court did not actually expressly address the merits of this issue on appeal either.

[00:29:37] Speaker 04:
Nevertheless, if the panel considers the district court's decisions sufficient to preserve the issue for appeal, I won't belabor the point, and I'm out of time anyway.

[00:29:48] Speaker 04:
Thank you very much for your attention.

[00:29:49] Speaker 00:
Thank you, counsel.

[00:29:56] Speaker 01:
Thank you, Your Honours.

[00:29:57] Speaker 01:
Just briefly on the standard and cases at the 12b6 stage, it certainly is true.

[00:30:06] Speaker 01:
This court has affirmed 12b6 dismissals of copyright infringement claims based on

[00:30:13] Speaker 01:
of finding of no or a lack of substantial similarity.

[00:30:17] Speaker 01:
But I think the more recent decision, certainly post-Rentmeester, have indicated that it is generally disfavored for copyright claims to be dismissed for lack of substantial similarity at the pleading stage.

[00:30:28] Speaker 01:
That's the panel in Hanagami, which I believe is a 2023 opinion.

[00:30:33] Speaker 01:
There's been reference to Zendale, Alfred versus Walt Disney co-recognizing.

[00:30:39] Speaker 00:
Some panels have suggested that, I told counsel, although it's so fact-specific, so fact-dependent.

[00:30:46] Speaker 01:
That's right, Your Honor, and I think the Rentmeester case actually gives us a good way to try to sort of thread the needle, as it were.

[00:30:55] Speaker 01:
In Rentmeester, the principle emerges that affirmance of a dismissal of the 12-6 stage is appropriate,

[00:31:04] Speaker 01:
only when there's nothing disclosed during discovery or that could be disclosed during discovery that could change the court's conclusion that the works are not substantially similar.

[00:31:13] Speaker 01:
That seemed to be the way the Rent-Meser Court addressed it.

[00:31:17] Speaker 01:
To me, that seems to be the right way to approach it, and I think it lines the cases up well.

[00:31:22] Speaker 01:
I think it squares the hammock.

[00:31:24] Speaker 01:
So what would that be here?

[00:31:25] Speaker 01:
So here this goes back to the question that the panel has asked my learned colleague, which is really what's the role of expert discovery here?

[00:31:33] Speaker 01:
I think he gave a very light touch to it saying anyone who's familiar with Victorian-era fiction can see right away here what is protected and what is not protected.

[00:31:44] Speaker 01:
I think that's a problematic position precisely for the reasons I gave earlier, which is that

[00:31:49] Speaker 01:
Here you have a television show, Penny Dreadfuls, which expressly goes back to celebrate a genre that is all about a canon and combining, bringing together characters like Oscar Wilde with Dr. Frankenstein, who don't exist together in the same works and often would not be thought of as together.

[00:32:10] Speaker 01:
Putting these characters together along with original characters raises very complicated and nuanced questions as to

[00:32:18] Speaker 01:
Well, what is inherent to the genre about the show?

[00:32:21] Speaker 01:
What is original?

[00:32:23] Speaker 01:
Now, my client produced her works on a message board, as Your Honours know from the briefing, called Murders and Roses, which similarly combined canonical characters like Oscar Wilde and Victor Frankenstein, but allowed

[00:32:39] Speaker 01:
users like my client to develop their own original characters to interact with those canonical characters.

[00:32:45] Speaker 01:
Once again, you have two very similarly almost self-reflexive types of works that are celebrating the genre but also trying to advance on it by building on those building blocks.

[00:32:59] Speaker 01:
I think an expert here who is able to say these characteristics of this character

[00:33:06] Speaker 01:
are inherent to the genre, CEG, citations, whereas these characteristics are new and original is really fundamental.

[00:33:16] Speaker 01:
It's critical to guide the trier of fact here in assessing what is similar between the works and whether or not they're protectable.

[00:33:25] Speaker 01:
Now the notion that there's something illogical about the idea that you can find two works to be strikingly similar based on

[00:33:33] Speaker 01:
unprotected elements, and yet find no unlawful appropriation, that's not illogical or odd at all.

[00:33:40] Speaker 01:
They're two conceptually distinct inquiries.

[00:33:43] Speaker 01:
And they reflect the proposition that not all copying is copyright infringement.

[00:33:47] Speaker 01:
One has to do two things in evaluating a copyright infringement claim.

[00:33:52] Speaker 01:
First, you have to assess whether there was copying.

[00:33:56] Speaker 01:
That's the access striking similarity inquiry.

[00:33:59] Speaker 01:
It's then a second step to assess whether or not the copying, if there is copying, amounts to copyright infringement.

[00:34:06] Speaker 01:
That's where the extrinsic test comes into play.

[00:34:09] Speaker 01:
And I would submit that that requires the kind of expert support, particularly in a case like this, where you have these nuanced combinations of that which is in the public domain and that which is not.

[00:34:20] Speaker 01:
To me, it's much more like music, where you're taking known public domain elements and combining them in ways that can be new, original, and expressive.

[00:34:32] Speaker 01:
And I see that I'm out of time.

[00:34:33] Speaker 01:
Thank you.

[00:34:34] Speaker 00:
Thank you, Council, on both sides for your argument in this interesting case.

[00:34:38] Speaker 00:
The matter is submitted and we'll issue a decision in due course.

[00:34:42] Speaker 00:
That concludes our argument calendar for today.

[00:34:45] Speaker 00:
So we are in recess until tomorrow morning.

[00:34:49] Speaker 03:
All rise.

[00:34:57] Speaker 03:
This court for this session stands adjourned.