[00:00:02] Speaker 01:
Good morning, and may it please the court.

[00:00:04] Speaker 01:
My name is Stefan Love, and I'm here on behalf of Denise Halleke and Eleanor.

[00:00:10] Speaker 01:
And I'd like to reserve three minutes for rebuttal, please.

[00:00:14] Speaker 01:
I'm going to talk first about the copyright issue and then the breach of contract claims in the case.

[00:00:20] Speaker 01:
On copyright, there's no question before this court right now concerning infringement.

[00:00:25] Speaker 01:
The question is kind of a threshold question, whether Eleanor, the car character, gets any copyright protection at all.

[00:00:33] Speaker 01:
The district court said she doesn't.

[00:00:36] Speaker 05:
As a result of that, for example, a motor- Why isn't Eleanor

[00:00:43] Speaker 01:
This court in DC Comics held that the Batmobile is a car character and the very same traits that made the Batmobile a protected car character

[00:00:59] Speaker 01:
by copyright have equivalent traits making Eleanor a Carr character.

[00:01:05] Speaker 01:
And I believe Judge Mendoza's getting at the point raised by Amiki between a distinction between props and characters.

[00:01:13] Speaker 01:
I should point out that distinction has no connection to any case of this court or any decision of any other court that I'm aware of.

[00:01:20] Speaker 01:
And

[00:01:21] Speaker 01:
It also kind of gives this word character a meaning it doesn't really have in this court's case law.

[00:01:27] Speaker 01:
This court uses that word character to single out any element of a protected work that is itself recognizable and sufficiently distinctive to merit independent protection.

[00:01:40] Speaker 01:
It doesn't have to be

[00:01:41] Speaker 01:
uh... sentient or a person or an animal or it's not limited in that way uh... at least not by anything this court or any other court said so character here's not a literary term it's really a copyright term uh... designating something meriting protection within it but before we apply the test for determining whether it is a character uh... whether it is copyrighted we have to determine whether it is a character writing there will be some

[00:02:08] Speaker 04:
items and movies that would not be characters, right?

[00:02:12] Speaker 04:
What about lightsabers in a Star Wars film?

[00:02:15] Speaker 01:
So there's no, no court again has ever laid out some kind of threshold test on the threshold test of whether something is even a character.

[00:02:24] Speaker 05:
Well, should this be the case where we do that?

[00:02:26] Speaker 01:
No, Your Honor, it shouldn't.

[00:02:28] Speaker 01:
And let me quote from something from DC Comics, the Batmobile decision.

[00:02:33] Speaker 01:
Even when a character lacks sentient attributes and does not speak, it can be a protectable character if it meets this standard.

[00:02:42] Speaker 01:
And the court there is referring to its three-element test.

[00:02:46] Speaker 01:
That character term, again, really means any element that is a distinct element within a work that is passing the DC Comics test.

[00:02:57] Speaker 01:
So recognizable, physical as well as conceptual characteristics, and especially distinctive

[00:03:04] Speaker 01:
with some unique elements.

[00:03:06] Speaker 01:
That's it, according to this court.

[00:03:08] Speaker 01:
Character, again, means such an element or a part of a work.

[00:03:13] Speaker 01:
It doesn't mean a person versus a prop or anything like that.

[00:03:17] Speaker 05:
So Bo, tell me, how are we going to distinguish going forward?

[00:03:22] Speaker 05:
If folks put names on props as opposed to names on characters, how is it that we are going to determine what is protected and what is not

[00:03:34] Speaker 05:
under your rule or your analysis?

[00:03:37] Speaker 01:
It's not my rule, Your Honor.

[00:03:39] Speaker 01:
It's this court's rule in DC Comics.

[00:03:41] Speaker 01:
And if it is a name put on what some might view as a prop, then we simply apply the test.

[00:03:49] Speaker 01:
Is it sufficiently recognizable?

[00:03:50] Speaker 01:
Does it have these especially distinctive

[00:03:53] Speaker 01:
characteristics.

[00:03:55] Speaker 01:
I should step back a minute and say, even if the court is inclined to make some kind of determination of a character test before determining whether that character is copyrightable, there would be no basis

[00:04:08] Speaker 01:
to hold that Eleanor is not a character if the Batmobile is a character.

[00:04:14] Speaker 01:
It necessarily follows from the DC Comics decision that the Batmobile is a character.

[00:04:20] Speaker 01:
The very same attributes that make the Batmobile so have equivalent attributes for Eleanor.

[00:04:26] Speaker 01:
The DC Comics panel emphasizes first and foremost the Batmobile's bat-like appearance.

[00:04:32] Speaker 01:
This isn't something to do with sentience or agency.

[00:04:35] Speaker 01:
It's a physical characteristic.

[00:04:37] Speaker 05:
That corresponds... Well, but Eleanor was yellow, I think, in the 1960s movies.

[00:04:43] Speaker 05:
changed to gray, a different Mustang in the 1960s, changed to a GT500.

[00:04:50] Speaker 05:
Why, I mean, we're talking about different things.

[00:04:52] Speaker 05:
How can we say that this is the same character?

[00:04:56] Speaker 01:
The Eleanor Carr character is always a fastback Mustang that's been physically customized so it doesn't look like any other fastback Mustang before from circa 1970 with distinct

[00:05:12] Speaker 01:
conceptual characteristics as well.

[00:05:14] Speaker 01:
Now, I should just clarify one point, Judge Mendoza.

[00:05:17] Speaker 01:
Eleanor was never a GT500 in her actual appearance.

[00:05:23] Speaker 01:
And there's actually no argument that she is.

[00:05:26] Speaker 01:
Some of the characters in the remake film call her a GT500, but that was really just a script writer's decision.

[00:05:33] Speaker 01:
As far as her actual appearance, she's not a GT500.

[00:05:36] Speaker 01:
There's a whole settlement between Ms.

[00:05:38] Speaker 01:
Halleke and Shelby, which says Shelby can make GT500s, Ms.

[00:05:43] Speaker 01:
Halleke can make Eleonors.

[00:05:45] Speaker 01:
If these were the same thing, that settlement would make no sense.

[00:05:48] Speaker 01:
It's not a GT500, it was always a customized, fastback Mustang.

[00:05:53] Speaker 01:
Now, to get to the other point of Judge Mendoza's question, the Batmobile is very different in the 1960s television show versus the 1989 film in its outward appearance.

[00:06:06] Speaker 01:
But this court looked past that to see the general idea of a bat-like appearance on a car.

[00:06:13] Speaker 01:
And there's pictures attached to the end of that decision which make clear just how different the two versions look.

[00:06:19] Speaker 01:
They're an appendix to the DC Comics decision.

[00:06:23] Speaker 01:
The same could be said for Eleanor, even though the 1970, the original film, 1974 film, Eleanor looks somewhat different from how she looks in the remake.

[00:06:34] Speaker 01:
There is the general higher level similarity of her appearance.

[00:06:39] Speaker 01:
Now, the other traits of the Batmobile that made it worthy of this court's view that it gets copyright protection are its maneuverability, its advanced technology,

[00:06:51] Speaker 01:
and that it consistently helps Batman fight crime.

[00:06:55] Speaker 01:
Now, there's, again, no mention of agency or its own private intentions ascribed to the Batmobile.

[00:07:02] Speaker 01:
This court talks about how, and I'm quoting from DC Comics, the Batmobile's characteristics allow Batman to maneuver quickly while he fights villains.

[00:07:13] Speaker 01:
Its high-tech gadgets are used to aid Batman

[00:07:17] Speaker 01:
in fighting crime.

[00:07:18] Speaker 01:
So every time the court talks about the Batmobile as a crime-fighting car, it's connecting that to Batman's goals.

[00:07:27] Speaker 01:
The same goes for Eleanor's other non-physical characteristics.

[00:07:32] Speaker 01:
She's always very difficult for the main human character to steal.

[00:07:37] Speaker 01:
That drives a lot of the action of both of the Gone in 60 Seconds films.

[00:07:41] Speaker 01:
We hear about that human character's history of trying to steal her in the remake,

[00:07:46] Speaker 01:
In the original, we see it on screen.

[00:07:49] Speaker 01:
The other feature of Eleanor is she can elude the police using her maneuverability, her speed, much like the Batmobile, and with a dramatic, spectacular jump that always finally shakes the police at the end of the chase.

[00:08:06] Speaker 01:
Those characteristics perfectly correspond to the equivalent characteristics of the Batmobile that made it worthy of protection.

[00:08:13] Speaker 01:
So even if the court entertains doubts about a character test, whether we need to have that too, that could never be the basis for distinguishing Eleanor from the Batmobile.

[00:08:25] Speaker 01:
There is no conceptual daylight between these two car characters.

[00:08:30] Speaker 01:
And the court here cannot overrule DC Comics.

[00:08:33] Speaker 01:
So it's ultimately bound by that decision to find Eleanor is protected as well.

[00:08:38] Speaker 02:
Well, let me ask you this, counsel, because as

[00:08:42] Speaker 02:
The court said when it remanded the original Haleke case, these are really highly fact-intensive issues.

[00:08:49] Speaker 02:
Your argument, necessarily you have to map Eleanor onto the Batmobile because of our ruling in that case.

[00:09:00] Speaker 02:
You're moving it close to a lot of other prop-like cars.

[00:09:04] Speaker 02:
That's the backdrop of a lot of heist movies, for example.

[00:09:09] Speaker 02:
So when we look at whether Eleanor is closer to the Batmobile or closer to this other category of cars, we'd have to then weed out some of the district court's factual findings that perhaps the original Ninth Circuit panel that looked at the case the first time sort of accepted.

[00:09:28] Speaker 02:
Right?

[00:09:28] Speaker 02:
Because those factual suggestions or findings are subject to clear error review.

[00:09:36] Speaker 02:
So what do we do with that?

[00:09:37] Speaker 02:
The fact that the first time we looked at this case, maybe not with as full some of a record in terms of factual findings of characteristics.

[00:09:46] Speaker 01:
The court still reviews the district court's decision de novo.

[00:09:50] Speaker 01:
That's clear from this court's Daniel's decision, which is the more recent character.

[00:09:55] Speaker 01:
copyright decision and the DC Comics decision.

[00:09:58] Speaker 01:
It's always a de novo inquiry.

[00:09:59] Speaker 05:
But counsel, I think what I hear Judge Wentz saying is that we have to look at, that was the whole point of sending it back to the district court and have them make factual findings.

[00:10:10] Speaker 05:
So I grapple with her question though.

[00:10:12] Speaker 05:
I mean, what do we do with those factual findings?

[00:10:15] Speaker 01:
The only factual issue here is a kind of mixed issue of applying the policy behind copyright law to the facts of the films themselves.

[00:10:25] Speaker 01:
That's the record.

[00:10:27] Speaker 01:
This court is able and should view those films with in its minds the DC Comics test.

[00:10:34] Speaker 01:
That's the long and the short of it.

[00:10:36] Speaker 01:
There's no layer, if you will, of findings to which this court defers

[00:10:44] Speaker 01:
that are above the simple facts of what you see in the films.

[00:10:48] Speaker 01:
What we have are the content of the films and the DC Comics test applied to that.

[00:10:53] Speaker 01:
This court is able to view the films just as capably as the district court was.

[00:10:59] Speaker 01:
In fact, the case law is clear that's the right thing to do, to independently view the films.

[00:11:06] Speaker 01:
I'm sorry, does my clock show, did it start at 15 or 12?

[00:11:11] Speaker 01:
Oh, okay.

[00:11:12] Speaker 02:
Did you want to save some time?

[00:11:14] Speaker 01:
I did want to save three minutes here, but I'll say one more thing on the copyright point and then I'll reserve the balance of my time.

[00:11:24] Speaker 01:
Judge Mendoza raised a question about the original Eleanor versus the remake.

[00:11:28] Speaker 01:
The court could also hold that remake Eleanor from the 2000 film is protected by copyright and set aside the question of original Eleanor.

[00:11:38] Speaker 04:
Are there any cases, though, where a court has ignored prior versions of a character and just looked at the most recent version to determine copyrightability?

[00:11:47] Speaker 04:
That doesn't have an intuitive appeal to me.

[00:11:51] Speaker 01:
There are no cases where that's specifically been done.

[00:11:55] Speaker 01:
It does have an intuitive appeal for this reason.

[00:11:57] Speaker 01:
Suppose there's a film with a secondary character, very much undeveloped.

[00:12:02] Speaker 01:
Ten years later, another film really develops that secondary character.

[00:12:06] Speaker 01:
But is that what happened here?

[00:12:08] Speaker 04:
I thought Eleanor was not just a secondary character.

[00:12:11] Speaker 01:
She's not, but the point would be that in a situation like that, for example, in the second film, the character as presented there could merit protection regardless of the first film's presentation of that same character.

[00:12:25] Speaker 01:
So it would go against the idea that copyright protects original elements of larger works to say, well, here's this other work, this other motion picture that somehow negates the originality that is embodied in this second version.

[00:12:40] Speaker 01:
And I'll reserve the balance of my time.

[00:12:41] Speaker 01:
Thank you.

[00:12:52] Speaker 00:
May please the court.

[00:12:53] Speaker 00:
Good morning, your honors.

[00:12:54] Speaker 00:
Irene Lee for the Shelby parties.

[00:12:56] Speaker 00:
Of the 15 minutes allotted for our time, Shelby will take 10, of which we will reserve one minute to address the following four issues and obviously the questions that's been discussed so far.

[00:13:08] Speaker 00:
So just to address some of the points raised by my colleague across the aisle, there is definitely support for the

[00:13:18] Speaker 00:
threshold test that was proposed by the 20 professors.

[00:13:22] Speaker 00:
The 20 professors in Abacus brief, page 13 through 16, it cites to Disney Productions versus Air Pirates, that is 1978 Ninth Circuit case, and also it gleans

[00:13:39] Speaker 00:
and borrows the language from the PROM 1 of the TOWEL test as well.

[00:13:44] Speaker 00:
It focused on the language.

[00:13:46] Speaker 00:
When you look at the PROM 1, it says the character must generally display physical as well as conceptual qualities.

[00:13:55] Speaker 00:
And they found a support in the conceptual qualities.

[00:13:58] Speaker 00:
So even the Ninth Circuit, when they came down with the three PROM tests in TOWEL, they were already recognizing that conceptual quality must be present in order to have a character.

[00:14:09] Speaker 00:
So just to make the record clear, affirmance of the lower court's findings and the rulings does not require or turn on this court adopting a threshold test or any other test or modifying the existing test.

[00:14:27] Speaker 00:
However, we do agree with the 20 professors

[00:14:31] Speaker 00:
that having some form of a threshold test to determine whether we're dealing with a character versus a prop would have been very useful in this case, Your Honor, especially when you're dealing with a situation where a purported character is found to be a thing.

[00:14:48] Speaker 05:
Council, your friend on the other side seems to suggest that we just have to look at one case and that's the DC Comics case that we have to, this is akin to the Batmobile, this is akin to that character in their view.

[00:15:03] Speaker 05:
What's your position with regards to that argument?

[00:15:06] Speaker 00:
We disagree, Your Honor.

[00:15:08] Speaker 00:
In this case, we have 11 fungible discrete stock cars across four different films.

[00:15:17] Speaker 00:
And they do not, the 11 cars do not constitute a single character, let alone a copyright-protectable one.

[00:15:26] Speaker 02:
So for various reasons, we can make... You're saying, because we did say in Tao that the Batmobile is so distinctive that every time it pops up, everybody knows that's the Batmobile.

[00:15:35] Speaker 02:
I mean, there may be different iterations of the Batmobile, but everybody knows that's the Batmobile.

[00:15:40] Speaker 02:
And the same isn't true of Eleanor.

[00:15:42] Speaker 00:
No, Your Honor.

[00:15:43] Speaker 00:
I do recognize that they argue that recognizability, as if that is the test under Prong 2, it is not, Your Honor.

[00:15:51] Speaker 00:
When you look at Tao, when you look at Daniels, they do not talk about recognizability in a vacuum.

[00:15:57] Speaker 00:
Recognizability is a result of having a character.

[00:16:01] Speaker 00:
First of all, you have to have a character, and then the character is developed.

[00:16:06] Speaker 00:
through multiple productions, multiple iterations, and what you're focusing on is persistence, consistency in these character traits over time.

[00:16:17] Speaker 00:
So the things that you have to focus on is what are the core consistent, identifiable character traits?

[00:16:24] Speaker 00:
have they been developed is sufficiently fixed, sufficiently defined, sufficiently delineated, and as a result of it, you have a character that you recognize as the character, not as a yellow car that you see when you see one of the nine cars in the first three films.

[00:16:42] Speaker 00:
But as Doug character, whenever it appears.

[00:16:46] Speaker 00:
That phrase, whenever it appears, Daniel's panel meant it.

[00:16:50] Speaker 00:
It appears four times in one page.

[00:16:53] Speaker 00:
So here, we disagree that Batmobile is somehow equivalent or synonymous with this Eleanor.

[00:17:00] Speaker 00:
We do not have a character in this case, Your Honor.

[00:17:05] Speaker 02:
That being the case, then, what does the character prop distinction or test give us that Tao doesn't?

[00:17:13] Speaker 00:
So tile test is a three-pronged test already assuming that you're dealing with a character.

[00:17:20] Speaker 00:
It is helpful to have a threshold test, and we don't need a separate test, by the way.

[00:17:25] Speaker 00:
We can clarify the conceptual qualities coming out of prong one, and if your honors can clarify that that means

[00:17:35] Speaker 00:
having some form of volition, volitional agency, some form of power and ability to process data.

[00:17:43] Speaker 00:
Batmobile, for example, is processing data and making a volitional decision to engage in autonomous driving.

[00:17:52] Speaker 00:
And it stops when they see two kids crossing the street.

[00:17:55] Speaker 00:
That is not something that Batmobile told it to do.

[00:17:58] Speaker 00:
It has ability to process data and be able to act and think

[00:18:03] Speaker 00:
and be able to get to a place that Batmobile meant to go.

[00:18:07] Speaker 00:
So the episode that is referenced in the amicus brief is 1967, February 1st.

[00:18:16] Speaker 00:
This is the penguin capturing Batman and Robin.

[00:18:19] Speaker 00:
They're tied up there, and they're about to be catapulted across the Gotham City.

[00:18:24] Speaker 00:
Batman quickly checks the data of the trajectory.

[00:18:27] Speaker 00:
They're going to land 30 yards south of 7th Street and Mulberry.

[00:18:32] Speaker 00:
sends the data to Batmobile, it gets activated, now it engages in the self-driving mode, gets there but it doesn't just go there, it knows exactly how to go without specific information because it has the volition to do so and has a personality that we talked about.

[00:18:49] Speaker 05:
So the test, so we have to find a test that this, the difference between a character and a prop would be a thinking,

[00:18:59] Speaker 05:
something that has a soul, something that has, I mean, what's the essence?

[00:19:05] Speaker 05:
We're getting very philosophical here, but that's what you're asking us to do.

[00:19:09] Speaker 00:
Yes, and only in a situation like this, when you are presented with a purported character, that is an object, that is a thing.

[00:19:17] Speaker 00:
that is not voiced by or played by human.

[00:19:20] Speaker 00:
In those cases, it will be very helpful to have this test to determine that we're not dealing with the prop, we're in fact dealing with the case.

[00:19:27] Speaker 04:
Are there any other circuits that have already addressed this question?

[00:19:31] Speaker 04:
What cases would we cite other than the DC Comics toll case?

[00:19:37] Speaker 00:
Other than those cases, unfortunately, I don't think any party has taken liberty of

[00:19:46] Speaker 00:
abusing the subjectivity in the third, three-pronged test, as the appellants have.

[00:19:52] Speaker 00:
Right now, when you have a prop, when you're talking about briefcase from Pulp Fiction, when you have a lightsaber from Star Wars, we know that that's a prop.

[00:20:01] Speaker 00:
It's not voiced by, played by a human.

[00:20:03] Speaker 00:
We know that it's just a plot device.

[00:20:06] Speaker 00:
When you see a briefcase that's carried around by Vincent and Jules, the main two characters played by John Travolta and Samuel L. Jackson,

[00:20:14] Speaker 00:
We recognize that briefcase to be the briefcase.

[00:20:17] Speaker 00:
In fact, there's only one briefcase in the entire movie.

[00:20:20] Speaker 00:
But we would never call that a character because it doesn't have the volition.

[00:20:24] Speaker 00:
It doesn't have a person.

[00:20:25] Speaker 04:
So there's no case because nobody's ever tried to argue it before.

[00:20:28] Speaker 04:
I think that is our case.

[00:20:30] Speaker 04:
And in this case, did you all argue below that this is just a prop, not a character?

[00:20:37] Speaker 00:
We tried.

[00:20:39] Speaker 04:
OK.

[00:20:40] Speaker 00:
I recognize that I'm over my time.

[00:20:43] Speaker 00:
Thank you, Your Honor.

[00:20:55] Speaker 03:
Good morning, Your Honor.

[00:20:56] Speaker 03:
My name is Marina Bogorad.

[00:20:58] Speaker 03:
I represent Respondents Classic Recreations, Antonia and Jason Engel.

[00:21:02] Speaker 03:
Just very quickly responding on the prop versus character test, I would like to submit that the DC Comics case

[00:21:09] Speaker 03:
says a car can be a character, but not every car is a character.

[00:21:14] Speaker 03:
So the dicta in that case does not preclude a finding that this particular car is not a character.

[00:21:21] Speaker 03:
It does not preclude a finding that this particular car is a prob.

[00:21:24] Speaker 03:
And as Ms.

[00:21:26] Speaker 03:
Lee said, it's a prob because it doesn't act outside of human interaction.

[00:21:32] Speaker 03:
Eleanor is not Batmobile and is not close to being a Batmobile because Batmobile thinks and acts on its own.

[00:21:38] Speaker 03:
It's a self-driving car.

[00:21:39] Speaker 03:
Also, Betmobile, every time it appears on the screen, has bet-like appearance.

[00:21:44] Speaker 03:
Every time Eleanor appears on the screen, you have to tell the viewer that this is Eleanor because otherwise it doesn't get recognized.

[00:21:50] Speaker 03:
That's all I had on the copyright.

[00:21:52] Speaker 03:
I want to move on to contract and declaratory relief claims unless the court has questions for me on copyright.

[00:21:59] Speaker 03:
So on copyright, I'd like to tell the court why the judgment on appellant's contract claims and declaratory judgment claims should be affirmed.

[00:22:07] Speaker 03:
As a preliminary matter, the court need not reach these claims if it affirms the copyright judgment.

[00:22:13] Speaker 03:
The only contract claims on this appeal against my clients are copyright based and appellants conceded that the declaratory judgment claim should also go if copyright judgment is affirmed.

[00:22:24] Speaker 03:
Now, regardless of copyright findings, the contract judgment should be affirmed for at least four reasons.

[00:22:30] Speaker 03:
One, they showed no contract damages below.

[00:22:33] Speaker 03:
Two, they showed no injury.

[00:22:35] Speaker 03:
Three, it's time barred.

[00:22:37] Speaker 03:
Just like, by the way, copyright claims, that was the alternative ground for affirmance that we argued.

[00:22:44] Speaker 03:
And fourth, there was a finding of no liability on the contract against Tony and Jason Engel.

[00:22:50] Speaker 03:
So on respondents Tony and Jason Engel, just really quickly, there was a finding that they're not a party to this contract, that they are not liable on this contract.

[00:23:00] Speaker 03:
And this was not challenged on appeal, so the court can

[00:23:06] Speaker 03:
Safely affirm the contract claims against these two respondents because they they are not liable on this contract on the no contractual damages point Appellants claim they get restitution, but restitution is an equitable remedy it requires a showing of inadequate Compensate compensatory damages which wasn't shown in this case Appellants argue they get

[00:23:30] Speaker 03:
Disgorgement, which is also an equitable remedy.

[00:23:33] Speaker 03:
They try to say, well, our disgorgement is restitution, which is a legal remedy.

[00:23:38] Speaker 03:
Troublers, they never show why theirs is legal and not equitable.

[00:23:42] Speaker 03:
Any disgorgement, as we showed in the cases we cited, is an equitable remedy.

[00:23:47] Speaker 03:
It is an equitable remedy when it comes to contract two.

[00:23:50] Speaker 03:
They cite trade secret cases, which also discuss inadequacy of compensatory damages in order to grant restitution.

[00:23:58] Speaker 03:
And restitution, by the way, is something that has to be taken from plaintiffs.

[00:24:04] Speaker 03:
Here, nothing was taken from plaintiffs.

[00:24:06] Speaker 03:
The contract said you had to stop making this car.

[00:24:09] Speaker 03:
They alleged that there was a breach, and my clients continued making this car.

[00:24:13] Speaker 03:
They made profits.

[00:24:15] Speaker 03:
These profits never belong to appellants, so they cannot be given back, so to speak.

[00:24:20] Speaker 02:
So let me ask you this.

[00:24:21] Speaker 02:
the court should have perhaps considered giving some sort of declaratory relief.

[00:24:27] Speaker 02:
Should we just remand and then allow the district court to make a determination as to the scope of that debt relief in the first instance?

[00:24:34] Speaker 02:
Are you asking for more than that?

[00:24:36] Speaker 03:
So on deck relief, the only issue was the injunction that was allegedly violated from the prior litigation.

[00:24:43] Speaker 03:
That was their declaratory relief claim.

[00:24:46] Speaker 03:
And the court dismissed this claim on the pleadings because the injunction on its face was limited to one car only.

[00:24:53] Speaker 03:
They now try to enlarge the scope of injunction and say that it was broader than that and addressed some kind of other rights.

[00:25:02] Speaker 03:
But on its face, as the prior appellate decision in California

[00:25:06] Speaker 03:
appellate court showed it was always limited to one car.

[00:25:10] Speaker 02:
Well, that's what I'm asking.

[00:25:11] Speaker 02:
The scope of it is determined by the district court in the first instance.

[00:25:15] Speaker 02:
That's right.

[00:25:16] Speaker 02:
It should be a pretty narrow remand then, right?

[00:25:20] Speaker 03:
I'm sorry, could you repeat the question?

[00:25:21] Speaker 02:
It'll be a remand and the district court sorts out those issues in the first instance.

[00:25:26] Speaker 02:
We don't need to sort that out.

[00:25:28] Speaker 03:
We submit that it should be affirmed.

[00:25:30] Speaker 03:
It was dismissed on the pleadings, and it should be affirmed because there's no error of law that appellants showed.

[00:25:36] Speaker 03:
On its face, the injunction limited to one card.

[00:25:38] Speaker 03:
There's no other rights of addresses.

[00:25:40] Speaker 03:
The prior appellate decision said so, and there's no reason, there's no reason shown to reverse on declaratory relief.

[00:25:47] Speaker 03:
And just very quickly on statute of limitations, Your Honors, the statute of limitations runs from the breach.

[00:25:55] Speaker 03:
They introduced no evidence, it was a secret breach.

[00:25:58] Speaker 03:
So this is an alternative ground to affirm copyright claims, contract claims, and declaratory judgment relief claims.

[00:26:07] Speaker 03:
Thank you, Your Honor.

[00:26:08] Speaker 02:
You're over time, but let me see if my colleagues have any additional questions.

[00:26:12] Speaker 02:
Thank you, Counsel.

[00:26:12] Speaker 03:
Thank you.

[00:26:17] Speaker 01:
Yes.

[00:26:23] Speaker 01:
Starring Eleanor, that's the only credit that the viewer sees at the beginning of the first Gone in 67.

[00:26:30] Speaker 05:
Council, if the yellow bus stand pulls up here, you're telling me that all of these people here, well maybe not council, would think, ah, Eleanor out there.

[00:26:41] Speaker 01:
That's not the test, Your Honor.

[00:26:42] Speaker 01:
The test is whether a viewer... It's part of the test, right?

[00:26:45] Speaker 01:
No, Your Honor, it's not.

[00:26:45] Speaker 01:
You're talking about recognizability, and that's recognizability for a viewer of the film.

[00:26:50] Speaker 01:
Do they recognize the character as a character within the film?

[00:26:54] Speaker 01:
It's not real-world recognizability.

[00:26:56] Speaker 01:
That's clear from the case law.

[00:26:58] Speaker 01:
That would be a factual determination.

[00:27:00] Speaker 01:
Recognizability depends on can the viewer see this as a character through the work.

[00:27:06] Speaker 01:
Uh, starring Eleanor, that's the only credit.

[00:27:09] Speaker 01:
Uh, go to the Peterson Automotive Museum.

[00:27:11] Speaker 01:
We've got the Batmobile.

[00:27:13] Speaker 01:
This is the movie car floor.

[00:27:14] Speaker 01:
Right over here, you got remake Eleanor right over here.

[00:27:17] Speaker 01:
This is a star car.

[00:27:19] Speaker 04:
This is not a stock car.

[00:27:19] Speaker 04:
The Batmobile has countless really distinct characteristics that, uh, like Judge Mendoza

[00:27:26] Speaker 04:
was alluding to, anybody on the street would recognize, what are those similar distinct characteristics that Elinor has?

[00:27:34] Speaker 01:
They are the very distinctive physical customizations of each version of Elinor.

[00:27:40] Speaker 04:
And again, the test, you're maybe getting... But they change throughout the films, correct?

[00:27:44] Speaker 04:
They're not the same?

[00:27:45] Speaker 01:
There are two versions of Eleanor, the original and the remake, and they have different customizations.

[00:27:50] Speaker 01:
But within each film, the character remains recognizable.

[00:27:55] Speaker 01:
That's the test.

[00:27:56] Speaker 01:
Again, we shouldn't conflate this with a kind of real-world recognizability.

[00:28:00] Speaker 01:
That would get at the infringement inquiry, perhaps, which is simply not before the court here.

[00:28:08] Speaker 01:
The other side tried to suggest some distinctions between the Batmobile and Eleanor, and they invented them.

[00:28:14] Speaker 01:
They invented things that aren't in DC Comics.

[00:28:17] Speaker 01:
They talked about it's an autonomous vehicle.

[00:28:19] Speaker 01:
It can process data.

[00:28:22] Speaker 01:
It's portrayed by a human.

[00:28:24] Speaker 01:
Literally none of these things comes up in DC Comics.

[00:28:27] Speaker 01:
They're inventions of the amicus, and in fact, they go against what DC Comics actually says.

[00:28:34] Speaker 01:
This also, prong one, conceptual characteristics.

[00:28:39] Speaker 01:
The amicus misunderstood this element, which is introduced in the heir pirate's decision, and unfortunately, counsel on the other side repeated that misunderstanding.

[00:28:48] Speaker 01:
Conceptual characteristics are viewed as less powerful than physical.

[00:28:52] Speaker 01:
in defining a character.

[00:28:55] Speaker 01:
I'm going to quote from Air Pirates and then I will close, a comic book character which has physical as well as conceptual qualities is more likely to contain some unique elements.

[00:29:05] Speaker 01:
So it's the physical embodiment of the character in a comic book or a film that makes it more likely to merit protection, unlike say a literary character which might be more likely to be an idea.

[00:29:18] Speaker 01:
And with that I would request reversal on all claims and thank the court very much.

[00:29:22] Speaker 02:
Thank you.

[00:29:28] Speaker 00:
Finally, on our cross appeal, Your Honors, this court should undo the lower court's error by reversing its refusal to issue a declaration that the GT500CR, that's the accused product, does not infringe appellants in ultra-property rights or contract rights, shall be approved

[00:29:47] Speaker 00:
at summary judgment that GT500CR does not violate any of their copyright or trademark.

[00:29:54] Speaker 00:
We also prove at trial that we do not violate any of their contract rights or trade dress rights.

[00:30:00] Speaker 00:
So it was illogical for the lower court to say Shelby did not carry its burden of non-infringement.

[00:30:07] Speaker 00:
So for that reason, we ask that this reversible error be rectified.

[00:30:12] Speaker 00:
And just to address your question, Your Honor, what we are asking is reverse and remand

[00:30:17] Speaker 00:
with the direction consistent with the findings so that lower court can add a declaration saying that GT500CR does not violate any of their inactual property rights or contract rights.

[00:30:28] Speaker 00:
Thank you, Your Honours.

[00:30:29] Speaker 02:
Thank you, Council.

[00:30:30] Speaker 02:
Thank you to both sides for your very helpful arguments this morning.

[00:30:33] Speaker 02:
The matter is submitted.