[00:00:00] Speaker 01:
May it please the court, Brian Cannon for Baby Bus.

[00:00:03] Speaker 01:
I intend to reserve four minutes for rebuttal.

[00:00:06] Speaker 01:
This case, Your Honors, illustrates the critical importance of filtering in copyright actions.

[00:00:12] Speaker 01:
The district court is obligated to identify the non-protectable elements in the copyrighted works.

[00:00:19] Speaker 01:
Otherwise, there is a danger that the jury will use a layperson's understanding of substantial similarity and compare the unprotected elements to each other.

[00:00:30] Speaker 01:
And that is not allowed.

[00:00:31] Speaker 01:
But that's what happened here, Your Honor.

[00:00:33] Speaker 01:
And we are respectfully requesting a remand for a new trial with a properly instructed jury.

[00:00:39] Speaker 03:
Was there any dispute about what the underprotected elements were in this case?

[00:00:44] Speaker 03:
I believe there was, Your Honor.

[00:00:46] Speaker 03:
So then how did the district court instruct on what they are?

[00:00:48] Speaker 03:
Then the district court would have to engage in fact-finding.

[00:00:51] Speaker 01:
No, Your Honor, that's actually a legal matter for the district court.

[00:00:54] Speaker 01:
The district court, the obligation is on the district court to identify the non-protectable elements

[00:01:00] Speaker 01:
and to say these are the non-protectable elements.

[00:01:03] Speaker 03:
Well, as a general matter, but then you're saying the district court had to find the specific parts of each video that are not unprotected and set them out?

[00:01:11] Speaker 01:
Well, it has to at least put out examples.

[00:01:15] Speaker 01:
And we're not here saying it has to be exhaustive, like 1,000 different elements.

[00:01:18] Speaker 03:
Yeah, that seems very odd, because it would be just a long list of this is unprotected, this is not protected.

[00:01:22] Speaker 01:
Well, if you look at the instructions in Mattel, you will see there are non-protectable elements.

[00:01:26] Speaker 01:
The instructions in the Skidmore case, which came to this court as an unbanked decision,

[00:01:30] Speaker 01:
There were three sets of non-protectable elements.

[00:01:33] Speaker 01:
The issue, the fatal flaw below, is the court put no unprotectable elements in the jury instructions.

[00:01:38] Speaker 01:
So this isn't like Mattel.

[00:01:40] Speaker 01:
But didn't the district court explain what the under-protected elements would be?

[00:01:44] Speaker 01:
Not in a sufficient way, Your Honor.

[00:01:46] Speaker 01:
The district court, and this is instruction number 14, and that's at ER 85, what it said was, here are a list of generic protected elements, and here are a list of unprotected elements.

[00:01:57] Speaker 01:
And if you indulge me, Your Honor,

[00:02:00] Speaker 01:
I'll actually read them because they overlap.

[00:02:02] Speaker 01:
The district court's instruction 14 said, protected elements can include plot, themes, dialogue, mood, setting, pace, characters, sequence of events.

[00:02:12] Speaker 01:
The district court also said, in the same instruction, unprotected elements can include characters, plot, themes, dialogue, mood, setting, pace, sequence of events.

[00:02:22] Speaker 03:
So I just don't see it.

[00:02:25] Speaker 03:
Isn't it the jury's role to then figure out what fits in there and what isn't?

[00:02:29] Speaker 01:
No, Your Honor.

[00:02:30] Speaker 01:
That's the role of the district court.

[00:02:32] Speaker 01:
That's the floor below.

[00:02:33] Speaker 01:
It's the district court's job to identify specifically, and that's from the Mattel case.

[00:02:38] Speaker 01:
In the Mattel case, this court... But the district court is not the fact finder, right?

[00:02:41] Speaker 03:
So if there's a dispute about if there's an element that's unprotected or protected, wouldn't the fact finder have to determine that?

[00:02:48] Speaker 01:
The fact finder makes the comparison, but it's the district court's job under the extrinsic prong.

[00:02:54] Speaker 01:
Now, the intrinsic prong, that is the fact finder's job.

[00:02:58] Speaker 01:
The fact finder

[00:02:59] Speaker 01:
does handle the intrinsic test, but before we get to the intrinsic test, the extrinsic test involves a legal step and that obligation.

[00:03:07] Speaker 01:
The Apple court said it, even though it's difficult to differentiate ideas from expression, the court must do it.

[00:03:14] Speaker 01:
That's in the Apple case comparison of graphical user interfaces.

[00:03:18] Speaker 01:
So it's an obligation on the district court and I think

[00:03:21] Speaker 01:
Judge Kaczynski's decision in the Mattel case is very instructive here.

[00:03:24] Speaker 04:
There.

[00:03:25] Speaker 04:
But the Apple case was on summary judgment, right?

[00:03:28] Speaker 04:
Correct.

[00:03:29] Speaker 04:
So I mean, I don't think there's any dispute that the district court can step in if the facts aren't there.

[00:03:36] Speaker 04:
But that's why I didn't find Apple to be very helpful, because here the district court said, well, the facts go beyond summary judgment.

[00:03:44] Speaker 04:
So then the question is, I mean, you agree this is a mixed question of fact and law, right?

[00:03:50] Speaker 01:
It can be, Your Honor, but it is still the obligation of the district court to identify the non-protectable elements.

[00:03:56] Speaker 01:
I understand.

[00:03:56] Speaker 01:
So in Apple, the district court handled the extrinsic test, and it resolved the summary judgment.

[00:04:02] Speaker 01:
It didn't have to get to the comparison in the intrinsic step, which is looking at the works as a whole.

[00:04:08] Speaker 01:
Mattel, I believe, is very instructive.

[00:04:10] Speaker 01:
In Mattel, the district court identified several non-protectable elements, but this court ruled it was not enough.

[00:04:17] Speaker 01:
the district court had to identify even more non-protective elements.

[00:04:22] Speaker 04:
Well, but the way I read Mattel, I think, and I'd be interested in your pushback on this, is if you're going to start listing some under-inclusive elements, then, or excuse me, if you're going to start listing some non-protected elements, you can't be under-inclusive in that.

[00:04:43] Speaker 04:
But not that, I mean, I didn't see that much of a difference

[00:04:47] Speaker 04:
at the end of the day between the jury instruction here and the jury instruction Mattel.

[00:04:51] Speaker 01:
Well, Your Honor, in Mattel, they listed the specific non-protectable elements that had to do with the doll sketches.

[00:04:57] Speaker 01:
Here, the district court just said plot could be protected.

[00:05:01] Speaker 01:
Generally.

[00:05:02] Speaker 01:
Yeah.

[00:05:02] Speaker 01:
Just gave general categories.

[00:05:03] Speaker 01:
Just general, like a listing from a case without even the examples from the casebook.

[00:05:06] Speaker 03:
Wouldn't that require a mini trial then to figure out what to list on that jury instruction?

[00:05:11] Speaker 03:
That's what I'm having trouble with.

[00:05:12] Speaker 01:
I think it might require a hearing, or the court could do it on the papers.

[00:05:16] Speaker 01:
I mean, Apple said, look, it's not always easy to differentiate ideas from expression.

[00:05:20] Speaker 01:
It's not.

[00:05:21] Speaker 02:
Sounds like what you want is a copyright equivalent of a Markman hearing.

[00:05:25] Speaker 01:
That's right, Your Honor.

[00:05:25] Speaker 01:
In a patent case, the judge has a Markman hearing to determine, as a legal matter, what do the terms of the patent mean?

[00:05:32] Speaker 01:
And I think the analogy is quite similar here, where I think this court's precedents are pretty uniform.

[00:05:40] Speaker 01:
You know, the district court, as hard as it may be, even though it might incorporate some facts, the district court has an obligation under the extrinsic prong of the copyright law to say these are the non-protectable elements, not just plot could be.

[00:05:53] Speaker 03:
Okay, but if it's disputed as a factual matter, then the district court then has to just make a factual determination that something is unprotected.

[00:06:01] Speaker 01:
That's probably correctional.

[00:06:02] Speaker 01:
We didn't brief that specific issue, but if there is a factual dispute, the way it got teed up below is we Baby Bus submitted what we called up, this is the list of non-protectable elements, and we would like these in the jury instructions.

[00:06:16] Speaker 01:
The court gave none of them.

[00:06:18] Speaker 01:
So this is not a situation of did it give enough, was it under-inclusive?

[00:06:22] Speaker 01:
The court gave no specific examples.

[00:06:24] Speaker 01:
And the sort of example that we would ask for would be something like,

[00:06:28] Speaker 01:
you know, a cartoon baby with an oversized head and large eyes.

[00:06:31] Speaker 01:
Just that concept is not protectable.

[00:06:33] Speaker 01:
That is protectable or is not protectable?

[00:06:35] Speaker 01:
Is not protectable.

[00:06:36] Speaker 01:
That's an idea.

[00:06:37] Speaker 01:
It's a crowded genre.

[00:06:39] Speaker 03:
So if Baby Bust then opposed that,

[00:06:43] Speaker 03:
I mean, sorry, Moonbug opposed that, then what would the district court have said?

[00:06:47] Speaker 03:
Like, oh, that large eyes on a baby is protected.

[00:06:51] Speaker 01:
Well, let's say Moonbug opposed that and said, no, that is protected, large head, large eyes.

[00:06:57] Speaker 01:
Then the district court's going to have to make a decision.

[00:07:00] Speaker 01:
And the decision's going to be, is it going to include that in the jury instructions or not?

[00:07:05] Speaker 01:
inclusion in the jury instructions could be reviewed for abuse of discretion.

[00:07:09] Speaker 01:
But if there was fact-finding involved, like in, to get to Judge Hamilton's Markman hearing, it's a little bit different in a patent case because there's technical facts.

[00:07:18] Speaker 01:
There, if there's a fact-finding, there's clear error.

[00:07:20] Speaker 01:
But if a judge has to decide is this particular element protected or non-protected,

[00:07:25] Speaker 01:
I think that, and whether that goes in the jury instruction or not, I think that would be an abuse of discretion.

[00:07:31] Speaker 04:
Let's say that he had, maybe this isn't a good hypothetical because you gave him specific examples to put in, but I kind of felt like if the district court had gone further and given a bunch of unprotectable examples and then the jury still came back this way, you'd be up here arguing, well, the district court

[00:07:51] Speaker 04:
went into the purview of the jury and told them what was, you know, told them too much.

[00:07:56] Speaker 01:
Well, that would be a very different case, Your Honor, because there you would have examples.

[00:08:00] Speaker 01:
Here what the district court did... Didn't give any.

[00:08:03] Speaker 01:
None.

[00:08:03] Speaker 01:
And I'm not aware of a case from this court where a district court gave none.

[00:08:09] Speaker 01:
If we look at the Skidmore instructions, which was an on-bank decision, there were examples in footnote 10 of the Skidmore decision.

[00:08:16] Speaker 01:
and then obviously Mattel case and the Harper House case.

[00:08:19] Speaker 01:
The Harper House case is an older case where copyright jury instructions were reversed because the district court in the Harper House case cautioned the jury, don't compare non-protected elements, but didn't give any specifics about what the non-protected elements were.

[00:08:34] Speaker 04:
Can you address the model jury instruction?

[00:08:37] Speaker 01:
Yes.

[00:08:37] Speaker 04:
Because this did not seem to be inconsistent with the model jury instruction.

[00:08:41] Speaker 04:
Does that mean that the model jury instruction doesn't go far enough?

[00:08:45] Speaker 01:
if you'd indulge me to grab the model jury instruction, because I believe the language supports our position.

[00:08:57] Speaker 01:
Thank you.

[00:08:58] Speaker 01:
So the model jury instructions of the Ninth Circuit state, and this is 1719, section 17.19, that, quote, the court must instruct the jury as to, one, the non-protectable elements of the plaintiff's work.

[00:09:15] Speaker 01:
And as I interpret that in the model jury instructions, it has to be specific.

[00:09:20] Speaker 01:
It has to be at least, I want to say at least exemplary, but there has to be some specific meat on the bone for the jury to say, okay, this is non-protectable, this is protectable.

[00:09:31] Speaker 01:
Like even as we review the cases and we've all reviewed the case law,

[00:09:34] Speaker 01:
There's examples in the case law that help us understand what is protectable, what is non-protectable.

[00:09:38] Speaker 01:
The jury didn't even have that.

[00:09:40] Speaker 04:
So if you're right on this, we still have to find harmlessness, right?

[00:09:48] Speaker 04:
Even if you were right that the jury instruction was flawed in some way, we would still have to say that that was harmful.

[00:09:55] Speaker 01:
That's correct, that's correct.

[00:09:56] Speaker 04:
I want to, you know, the jury found at the end of the day with a specific verdict form that Jojo was virtually identical to, I forget the main character in Cocoa Melon.

[00:10:15] Speaker 04:
Correct, JJ.

[00:10:17] Speaker 01:
I will say, and I may have had the same reaction when I was reading this record,

[00:10:29] Speaker 01:
But the prior art is Lulu.

[00:10:31] Speaker 01:
And I mean, this is the genre.

[00:10:33] Speaker 02:
This is something that's... And what about, was it doo-doo, dow-dow?

[00:10:37] Speaker 02:
Dow-dow, I believe, Your Honor.

[00:10:38] Speaker 02:
That was the false... That was the falsely created... Attribution?

[00:10:42] Speaker 02:
Correct.

[00:10:42] Speaker 01:
Correct, Your Honor.

[00:10:43] Speaker 02:
That drew the sanctions?

[00:10:44] Speaker 01:
Correct, Your Honor.

[00:10:45] Speaker 02:
I've got to say, I've never seen copying evidence quite as compelling as this record.

[00:10:50] Speaker 01:
Well, Your Honor, I'm not here to defend at all the dow-dow issue and, you know, my client was sanctioned below.

[00:10:59] Speaker 01:
that, you know, Judge Chen handled that, and I'm not here to defend it, but that still does not mean that the jury should not be properly instructed for the actual contested works.

[00:11:10] Speaker 02:
But the point here is about prejudice.

[00:11:12] Speaker 01:
Well, Your Honor, prejudice as to what?

[00:11:15] Speaker 01:
I'm sorry.

[00:11:15] Speaker 01:
Well, harmless.

[00:11:16] Speaker 02:
The instruction, given the finding of, given the evidence of very close copying and virtually identical characters.

[00:11:26] Speaker 01:
I really want to get back to the virtual identity question.

[00:11:28] Speaker 01:
If Judge Hamilton, if I can just respond to that question on the copying.

[00:11:32] Speaker 01:
Copying was conceded for six out of the 368 videos.

[00:11:36] Speaker 01:
So for six videos, copying was conceded.

[00:11:39] Speaker 01:
Copying of the character was not conceded.

[00:11:42] Speaker 01:
What was copied, and you can see this in the briefs, was sort of the blocking within the frame.

[00:11:46] Speaker 01:
It's sort of like, where are the objects in the frame?

[00:11:49] Speaker 01:
Not the specific characters.

[00:11:51] Speaker 01:
That was the concession.

[00:11:53] Speaker 01:
I'm not focused on the concession.

[00:11:56] Speaker 02:
I'm focused on the evidence.

[00:11:58] Speaker 01:
Understood, Your Honor.

[00:11:59] Speaker 01:
The evidence was that the character was not copied.

[00:12:02] Speaker 01:
Obviously, that was a contested issue at trial.

[00:12:05] Speaker 01:
And here is where the jury instruction is so dangerous and what gets to Judge Nelson's question.

[00:12:09] Speaker 01:
Judge Nelson's question was, I think essentially, Your Honor, hey, isn't this harmless because the jury found that it was virtually identical?

[00:12:17] Speaker 01:
And the issue there is,

[00:12:18] Speaker 01:
We don't know what the jury compared to be virtually identical.

[00:12:22] Speaker 01:
If it was the unprotected aspects, it's okay to be virtually identical to the unprotected aspects.

[00:12:28] Speaker 01:
The jury has to be properly instructed as to the non-protected versus the protected elements in order to

[00:12:34] Speaker 01:
make the conclusion something is virtually identical or not.

[00:12:38] Speaker 01:
So even if something is virtually identical, having oversized eyes and a big head, if that's virtually identical, that doesn't resolve the issue of copyright infringement in any respect.

[00:12:49] Speaker 04:
But it's still, I mean, it did say unprotected elements.

[00:12:53] Speaker 04:
I mean, it talks about the protected elements, plot, themes, dialogue, mood, setting, pace, characters, sequence of events, and other expressive elements.

[00:13:04] Speaker 04:
Clearly we can read to say it fit within one of those categories I'm sorry and what fits the virtually identical.

[00:13:12] Speaker 04:
I mean you're saying the jury didn't know Exactly what it was but it but we can read the jury instructions and say reading these jury instructions The jury found that one of these protected elements was virtually identical I'm not sure we can make that conclusion your honor because there's overlap between the and I'll call it the high level or sort of the

[00:13:33] Speaker 01:
the generic listing of what could be... Law, themes, dialogue, mood.

[00:13:37] Speaker 01:
That's right.

[00:13:37] Speaker 01:
It's our position that, and I believe the precedent supports it, that the court has to give specific examples.

[00:13:45] Speaker 01:
In closing, did you give examples of what you thought was unprotected?

[00:13:49] Speaker 01:
I think we did argue to the jury what was protected versus non-protected.

[00:13:54] Speaker 03:
Why does it matter then?

[00:13:58] Speaker 01:
Because I believe it's the job of the district court to set forth in the instructions under the extrinsic prong.

[00:14:04] Speaker 01:
Could I turn to the character issue, because that's an independent reason for reversal, and it also speaks to the question on the jury form that Judge Nelson pointed out.

[00:14:15] Speaker 01:
The final question on the jury form asked,

[00:14:19] Speaker 01:
Let me just get it exactly correct, Your Honor.

[00:14:26] Speaker 01:
If you find the JJ character was infringed and it refers back to question one on the jury form, it's very, very confusing the way this jury form was set up because question one, and in fact all the questions on the verdict form, are directed to the registered copyrights.

[00:14:41] Speaker 01:
Those are the copyrights that Moonbug, the plaintiff, filed with the copyright office.

[00:14:46] Speaker 01:
The character issue is a separate issue, sort of the persona of JJ.

[00:14:51] Speaker 01:
The character of JJ, separate from his visual rendering, separate from the registered copyright.

[00:14:57] Speaker 01:
In some rare cases in this circuit, you can get character protection.

[00:15:00] Speaker 01:
And examples include, as you know from the briefing, James Bond, and the Batmobile, and Godzilla, very sort of iconic characters.

[00:15:07] Speaker 01:
The district court in this case ruled as a matter of law, and there's de novo review on this, Your Honors, is that the character of

[00:15:16] Speaker 01:
of JJ is entitled to character protection.

[00:15:19] Speaker 01:
And the district court told the jury that in the instructions.

[00:15:23] Speaker 01:
I believe that was instruction number 10.

[00:15:25] Speaker 04:
And your argument is that that was error.

[00:15:27] Speaker 01:
That was error.

[00:15:28] Speaker 01:
And it's error on two fronts.

[00:15:29] Speaker 01:
One, it was error as a matter of law because a generic cartoon baby in this genre is not entitled to the special protections of character protection like James Bond or Godzilla.

[00:15:39] Speaker 01:
That's error number one.

[00:15:40] Speaker 01:
Error number two,

[00:15:42] Speaker 01:
is that it was highly confusing and very prejudicial, honestly, for the district court to tell the jury in a jury instruction the main character JJ is protectable and then not have a question on the jury form.

[00:15:54] Speaker 01:
There was no question on this verdict form that asked, is the character, the persona of JJ infringed by the accused character Jojo?

[00:16:05] Speaker 01:
All of the questions on the verdict form went to the registered copyrights, which is a different type of copyright.

[00:16:10] Speaker 01:
I'm into my rebuttal time, but happy to answer any questions you might have.

[00:16:15] Speaker 04:
OK.

[00:16:15] Speaker 04:
We'll give you time in rebuttal.

[00:16:17] Speaker 04:
Thank you.

[00:16:17] Speaker 04:
Thank you.

[00:16:29] Speaker 00:
Good morning, Your Honors.

[00:16:30] Speaker 00:
May it please the Court, Ryan Ties on behalf of Appellees, Moonbug, and Treasure Studios.

[00:16:36] Speaker 00:
They are the owner and creator of the hit cartoon

[00:16:40] Speaker 00:
series cocoa melon As you noted the evidence of copyright infringement was overwhelming in this case Unlike any other cases that this court has ruled on now, but that goes to harmless.

[00:16:56] Speaker 04:
Yeah But I do worry a little bit is our case law clear enough on what a district court needs to do in the jury instructions here because

[00:17:08] Speaker 04:
I mean, I was trying to parse this out.

[00:17:11] Speaker 04:
The problem is they come up in all these different contexts.

[00:17:15] Speaker 04:
Some are on 12b6, some are on summary judgment.

[00:17:18] Speaker 04:
A couple of them have come up with jury instructions.

[00:17:21] Speaker 04:
What would be wrong with saying a district court needs to give more concrete examples?

[00:17:29] Speaker 00:
I think two parts to that.

[00:17:32] Speaker 00:
First, I would like to show that the district court in this case did give concrete examples in line

[00:17:38] Speaker 00:
This court's precedent.

[00:17:40] Speaker 00:
That's part one.

[00:17:41] Speaker 00:
Part two, I think.

[00:17:42] Speaker 04:
But not in 14.

[00:17:43] Speaker 04:
Does that come in somewhere else?

[00:17:44] Speaker 00:
No, it's in 10 and 14.

[00:17:46] Speaker 00:
But in 14, my opposing counsel skipped a couple of the words.

[00:17:50] Speaker 00:
OK.

[00:17:50] Speaker 00:
And we can walk through that.

[00:17:53] Speaker 00:
And I think it would be helpful to understand the category.

[00:17:55] Speaker 00:
This is the ER 45, the extrinsic test?

[00:17:58] Speaker 00:
Correct.

[00:17:59] Speaker 00:
Number 14, under unprotected elements.

[00:18:02] Speaker 00:
It can include stock and standard concepts, right?

[00:18:06] Speaker 00:
Characters, plot.

[00:18:08] Speaker 00:
themes, dialogue, mood, setting, pace, colors, animation style, sequence of events, music, and any other features that are commonly used or firmly rooted in the tradition, unoriginal music, that is consistent with Skidmore, the instruction in Skidmore, in William Gay, et cetera.

[00:18:33] Speaker 00:
It's consistent with Harper House.

[00:18:34] Speaker 00:
If you go back to Harper House, that reversed an instruction that said,

[00:18:38] Speaker 00:
No, you don't have to consider protectability.

[00:18:41] Speaker 00:
And the problem with Harper House was there was blank sheets.

[00:18:45] Speaker 00:
And the court said blank sheets are unprotectable.

[00:18:47] Speaker 00:
So you can't tell the jury they don't need to consider protectability and consider the whole thing, and they're considering unprotectability.

[00:18:54] Speaker 00:
That was not an issue in this case.

[00:18:55] Speaker 00:
The judge gave clear guidance.

[00:18:58] Speaker 00:
And let up each council or could could the district court.

[00:19:02] Speaker 04:
I mean what I'm trying to figure out is is this it is this illegal is this is an ultimately mixed question of law and fact and I'm just trying to figure out which side of the line this all falls on because at the end of the day could the district court would it have been error for the district court to say

[00:19:18] Speaker 04:
Look, the curly hair, that's protectable.

[00:19:23] Speaker 04:
The big eyes, that's protectable.

[00:19:26] Speaker 04:
Would that have been error for the district court to do that?

[00:19:29] Speaker 04:
Did he have discretion to do that?

[00:19:31] Speaker 00:
It depends if there is a dispute about what is protectable and what is not, or whether it's being argued as forming the basis for infringement.

[00:19:41] Speaker 00:
It wasn't about just having a big head was not our basis for the claim of infringement.

[00:19:45] Speaker 00:
It was the combination of elements.

[00:19:47] Speaker 00:
And I think you run down a slippery slope.

[00:19:49] Speaker 00:
If you're requiring district courts to list every element and they get it wrong, you're going to see more appeals than ever.

[00:19:54] Speaker 02:
I agree with you.

[00:19:55] Speaker 02:
We're familiar with the reversal rate from the Federal Circuit on Markman claim constructions.

[00:20:01] Speaker 00:
And that's a pure question of law, unlike what we're dealing with here is a mixed question.

[00:20:07] Speaker 00:
And so I think putting the burden to try to get a court to delineate it.

[00:20:12] Speaker 00:
And the funny thing in this case is you go back to summary judgment

[00:20:15] Speaker 00:
We argued that the intrinsic test was satisfied as a matter of law and summary judgment.

[00:20:19] Speaker 00:
They opposed and said, no, no, there's dispute of fact.

[00:20:21] Speaker 00:
It's got to go to the jury.

[00:20:23] Speaker 00:
Judge Chen sent it to the jury.

[00:20:24] Speaker 00:
Now we're back here and said, no, you should have decided it.

[00:20:27] Speaker 00:
Examples of protectable material.

[00:20:30] Speaker 00:
The judge found JJ protectable.

[00:20:32] Speaker 00:
They gave him that example.

[00:20:33] Speaker 00:
It's not stuck.

[00:20:34] Speaker 00:
That wasn't really even disputed at summary judgment.

[00:20:36] Speaker 00:
That's an example of a stock character.

[00:20:39] Speaker 00:
And your point, Judge Bumutang, is

[00:20:42] Speaker 00:
Did counsel, was they able to argue their positions to the jury?

[00:20:46] Speaker 00:
And that's all they did.

[00:20:47] Speaker 00:
At closing, they argued repeatedly, and I can go through them, I give you quotes, but repeatedly argued, as the judge instructed you in 10 and 14, standard concepts, stock ideas, things you find in the genre, crowded field, all of that's unprotectable.

[00:21:04] Speaker 00:
And even their own expert said, oh, all this stuff's unprotectable.

[00:21:08] Speaker 00:
And we really didn't dispute those were unprotectable.

[00:21:12] Speaker 00:
It was our specific expression that was wholesale copy.

[00:21:15] Speaker 00:
The specific expression, the creative elements, how these animators created.

[00:21:20] Speaker 03:
So you didn't oppose the list that was presented to be in the jury instructions?

[00:21:26] Speaker 00:
Well, we opposed their jury instructions in total because there was wrong formulations of law.

[00:21:29] Speaker 00:
If you look at that, that would have created more mess than it is.

[00:21:33] Speaker 00:
On balance, those were not issues in dispute.

[00:21:36] Speaker 00:
So where do you draw the line when it's unprotectable?

[00:21:39] Speaker 00:
A blue sky, for example.

[00:21:41] Speaker 00:
If the parties aren't arguing that a blue sky is protectable or not protectable, does the judge need to make that finding and tell the jury?

[00:21:48] Speaker 00:
Or do you give the jury guardrails?

[00:21:51] Speaker 00:
I think that's what this court requires is guardrails so the jury doesn't get confused.

[00:21:59] Speaker 00:
And we went through jury instructions like four or five times through the trial.

[00:22:04] Speaker 00:
I was lead trial counsel below.

[00:22:05] Speaker 00:
And we went through it repeatedly.

[00:22:08] Speaker 00:
And interesting thing throughout, opposing side said the jury can decide protectability and unprotectable things.

[00:22:17] Speaker 00:
They made that clear.

[00:22:18] Speaker 00:
And then they want examples.

[00:22:19] Speaker 00:
But is examples really what they're arguing for?

[00:22:22] Speaker 00:
They're saying you have to give a definitive list.

[00:22:24] Speaker 00:
And if you don't give it, it's wrong.

[00:22:26] Speaker 00:
So at the one hand, they're saying just examples.

[00:22:28] Speaker 00:
And then the other, no exhaustive list.

[00:22:31] Speaker 02:
Could a judge do that as a matter of law without

[00:22:35] Speaker 02:
in essence, a background at least from expert testimony or the judge's own background to say, in essence, I know this genre of cartoon babies or superheroes or whatever the case may be.

[00:22:54] Speaker 02:
That seems very tough to do as a matter of law to me.

[00:22:59] Speaker 00:
One hundred percent, especially in

[00:23:02] Speaker 00:
creative audio visual works.

[00:23:04] Speaker 00:
If you look at the other cases like the Apple computer case, it's a software program, very limited protectability, and it's clear to delineate this is certainly not protectable under a matter of precedent.

[00:23:17] Speaker 00:
It's functional, for example.

[00:23:19] Speaker 00:
Or in other cases, this is licensed, free to use, and it can never support an infringement

[00:23:25] Speaker 00:
So in those type of cases, yes, the judge can make those matter of laws.

[00:23:29] Speaker 00:
But when you're in a highly creative aspect or in audio-visual work, like a cartoon, it becomes very difficult.

[00:23:37] Speaker 00:
But again, I go back to what our presentation was throughout the case and in closing.

[00:23:41] Speaker 00:
versus what theirs was.

[00:23:43] Speaker 00:
It was the specific expression, the combinations that made up this work.

[00:23:47] Speaker 00:
And they wholesale copied it from start to finish.

[00:23:51] Speaker 00:
And that's where you get into the virtual identity.

[00:23:53] Speaker 04:
Yeah, I understand that part of it.

[00:23:56] Speaker 04:
But I'm more worried about a broader issue about, do the district courts have enough guidance?

[00:24:03] Speaker 04:
This isn't going to be the last copyright claim that's out there.

[00:24:06] Speaker 04:
And what is the rule?

[00:24:07] Speaker 04:
Do they know?

[00:24:09] Speaker 04:
Because if we say this is OK,

[00:24:12] Speaker 04:
Then, I mean, aren't district courts going to just retreat to, you know, this generic statement?

[00:24:20] Speaker 04:
Now, in Harper, or to make sure I have my casers right, I think it was Harper, where we basically said, no, you've got to fix it.

[00:24:26] Speaker 04:
That seemed to be a problem where they started down this road, and we basically said, look, once you start down that road, you can't just list two.

[00:24:35] Speaker 04:
unprotectable, you know, examples, you've got to list them all.

[00:24:41] Speaker 04:
And so, I mean, is the rule that as long as you don't start down the road and you just stick with this general stuff, you're fine?

[00:24:48] Speaker 00:
I think it depends on the facts of the particular case.

[00:24:51] Speaker 00:
And you're defining sufficient guardrails so the jury gets it right.

[00:24:55] Speaker 04:
What were the guardrails here?

[00:24:57] Speaker 04:
Because, I mean, you could look at these jury instructions and say this could have applied to any case.

[00:25:02] Speaker 04:
How is this carefully crafted?

[00:25:04] Speaker 04:
I mean, model jury instruction does suggest that the court and counsel specifically craft instructions on substantial similarity based on the particular works at issue, the copywriting question, and the evidence developed at trial.

[00:25:16] Speaker 04:
What about this number 14 suggests that that was done here?

[00:25:21] Speaker 00:
It was followed to a T. So let's start with the work at issue, right?

[00:25:25] Speaker 00:
Highly creative, auto-visual cartoon, right?

[00:25:29] Speaker 00:
it gets the broadest protection.

[00:25:30] Speaker 00:
Let's start with that.

[00:25:32] Speaker 00:
Then let's start with the theories proposed by each side or advanced by each side.

[00:25:36] Speaker 00:
We advanced kind of a very, like, combination, selection, arrangement of detailed elements of expression.

[00:25:43] Speaker 00:
And following this case's authority in those type of works, you look at, under the extrinsic test, plots, themes, dialogue, and when you have substantial similarity over that, it rises and meets that test.

[00:25:57] Speaker 00:
Their side was, no, this is all stock and dictated by the genre.

[00:26:02] Speaker 00:
And I think this is where Judge Bumate's question comes in.

[00:26:05] Speaker 00:
What did they argue in closing?

[00:26:07] Speaker 00:
This maps directly to it.

[00:26:08] Speaker 00:
That's why Judge Chen said, this is what the sides are presenting.

[00:26:12] Speaker 00:
Let me formulate an instruction that meets those arguments so that lawyers can argue their case to the jury.

[00:26:19] Speaker 00:
And so I don't think it is generic.

[00:26:23] Speaker 00:
Their thing was stock, generic characters.

[00:26:25] Speaker 00:
There's other babies.

[00:26:27] Speaker 03:
It's all traditional to the genre and was there any summary judgment motion on what was protected or unprotected.

[00:26:34] Speaker 00:
There was it was largely on infringement.

[00:26:38] Speaker 00:
We move for summary judgment of infringement across the board.

[00:26:41] Speaker 00:
They move for non infringement across the board.

[00:26:44] Speaker 00:
The judge did find JJ protectable at.

[00:26:47] Speaker 00:
summary judgment.

[00:26:48] Speaker 00:
That was it.

[00:26:49] Speaker 03:
Because maybe that's the way to solve this is that you move for summary judgment on what's unprotected, then the judge decides on the basis of that, and then you can put that in the jury instruction if you wanted.

[00:26:58] Speaker 00:
I think the judge ultimately did that in denying our motion for summary judgment.

[00:27:03] Speaker 00:
He said there was a dispute of fact regarding whether there's a combination of elements.

[00:27:09] Speaker 00:
We never contended, oh, a baby with a big head

[00:27:12] Speaker 00:
is why we win.

[00:27:14] Speaker 00:
It's the specific shape of that head that they ultimately traced over.

[00:27:18] Speaker 00:
You combine it with all of these other elements, his family makeup and that.

[00:27:22] Speaker 00:
And the judge said, they put on expert testimony that all of these elements can be found in the genre and you combine it all together.

[00:27:30] Speaker 00:
And we said, no, it's novel.

[00:27:32] Speaker 00:
And the judge said, the jury could find either way.

[00:27:35] Speaker 00:
And so we go to trial.

[00:27:37] Speaker 00:
We put on our case.

[00:27:38] Speaker 00:
They didn't bring the experts they opposed our summary judgment with.

[00:27:41] Speaker 00:
The jury was left with our expert, our theory of the case, and their attorney argument about what is standard and stock and flows from the genre.

[00:27:52] Speaker 00:
And if you look at their proposed instruction, they didn't identify a lot of things that they ultimately argued were not protected.

[00:28:00] Speaker 00:
One of their themes was

[00:28:01] Speaker 00:
some of these videos are set to standard nursery rhymes, right?

[00:28:06] Speaker 00:
Wheels on the bus.

[00:28:07] Speaker 00:
Now, Coco Mella has its own implementation of creative implementation of wheels on a bus, but they said use of standard public domain nursery rhymes can't form the base of the copyright.

[00:28:16] Speaker 00:
And so the court included that in their instruction, and that's in tenets, you know, what's in the public domain is not included.

[00:28:22] Speaker 00:
But it doesn't need to go through every public domain thing, especially in a case like this when you're dealing with dozens and dozens of copyrights.

[00:28:29] Speaker 00:
If you think about one video,

[00:28:30] Speaker 00:
a judge having to go through every element and saying, not protectable, protectable.

[00:28:35] Speaker 00:
And it messes up one, and then we're here again and saying, that was prejudicial.

[00:28:39] Speaker 04:
But I guess that's what I'm trying to figure out is just if I'm a district court judge, how do I read our law?

[00:28:45] Speaker 04:
And do I just consistently retreat to a safer position here and let the jury figure it out?

[00:28:51] Speaker 04:
Because the minute you step off the deck, you're putting yourself at a huge risk of exactly what you're saying.

[00:28:59] Speaker 00:
I think Judge Ten at the district court got exactly right.

[00:29:01] Speaker 00:
He tried really hard to follow the guidance set forth in the precedent, understand the party's position, and craft the jury instruction that captured that and gave the jury the tools to decide that.

[00:29:13] Speaker 00:
I think that is all that this court's law requires and should require going forward, and that's what the model instruction says.

[00:29:21] Speaker 00:
Look at the case, and it's up to our district courts

[00:29:24] Speaker 00:
judges to figure out and craft those jury instruction.

[00:29:27] Speaker 00:
And that's why it's an abuse and a discretion standard when it's a formulation of jury instructions is because you give district courts that discretion to formulate the difficult question based on what they're seeing and what they saw in this case was two competing arguments, the combination of elements on one side versus the stock and generic genre on the other.

[00:29:49] Speaker 00:
And that's what the jury instructions captured.

[00:29:51] Speaker 00:
And I think that's the guidance, if any,

[00:29:54] Speaker 00:
is affirming this district court's jury instruction would give the best guidance possible.

[00:30:00] Speaker 00:
If it was, oh, you have to delineate everything, you're just gonna create a mess.

[00:30:05] Speaker 04:
What about the copyrightability of the JJ character?

[00:30:09] Speaker 00:
Yeah, I think that is pretty straightforward.

[00:30:11] Speaker 00:
He's the modern-day Mickey Mouse.

[00:30:15] Speaker 00:
Billions of views, he's on Netflix.

[00:30:17] Speaker 00:
If you have a four-year-old, your four-year-old knows who Coco Mellon is.

[00:30:22] Speaker 00:
They walk down the aisles.

[00:30:23] Speaker 00:
That's JJ.

[00:30:24] Speaker 00:
And it's a pretty low bar for characters in audio visual works.

[00:30:29] Speaker 00:
They just have to have the three tile tests.

[00:30:32] Speaker 00:
They conceded the first two were not in dispute.

[00:30:36] Speaker 00:
So is he especially distinctive?

[00:30:38] Speaker 00:
And does he have some original features?

[00:30:41] Speaker 00:
And it was undisputed that he met that threshold.

[00:30:45] Speaker 00:
And their expert in deposition admitted he wasn't a stock character.

[00:30:49] Speaker 00:
I took her deposition.

[00:30:50] Speaker 00:
You contend that JJ is a stock character.

[00:30:53] Speaker 00:
She's like, I'm not going to say that.

[00:30:54] Speaker 00:
He's the main star of the character of the show.

[00:30:58] Speaker 00:
So if you think about like James Bond, a few features.

[00:31:02] Speaker 00:
He's he's protectable because he appears in pennies not but James Bond is villains may not be.

[00:31:09] Speaker 02:
I didn't hear that.

[00:31:10] Speaker 02:
Sorry.

[00:31:10] Speaker 02:
The villains may not be.

[00:31:11] Speaker 00:
Yeah.

[00:31:12] Speaker 00:
Because they are more generic.

[00:31:13] Speaker 00:
Right.

[00:31:14] Speaker 00:
He's the star.

[00:31:15] Speaker 04:
That's basically what they said here that none of the other characters were protectable.

[00:31:19] Speaker 04:
The district court said that.

[00:31:21] Speaker 00:
Right.

[00:31:22] Speaker 00:
So there was a dispute of fact about that.

[00:31:23] Speaker 00:
And let that go to the jury which I think was the right call.

[00:31:26] Speaker 00:
But when it came to JJ and the character which

[00:31:30] Speaker 00:
is an element of the works, right?

[00:31:33] Speaker 00:
So JJ, he's consistently delineated throughout every video.

[00:31:36] Speaker 00:
He's the main character of every video.

[00:31:39] Speaker 00:
And our expert said he's the JJ show, essentially.

[00:31:43] Speaker 00:
And everything is built around him.

[00:31:45] Speaker 00:
And that makes him rise to a protectable character.

[00:31:50] Speaker 00:
And even they say the judge should have decided protectability.

[00:31:54] Speaker 00:
They did.

[00:31:54] Speaker 00:
But they don't like that decision.

[00:31:57] Speaker 00:
And it's a little conflicting.

[00:31:59] Speaker 00:
The TAL test was met under the undisputed facts.

[00:32:03] Speaker 00:
The facts weren't in dispute on those issues.

[00:32:10] Speaker 04:
And the verdict form, anything you want to respond on that?

[00:32:16] Speaker 00:
The verdict form was clear.

[00:32:18] Speaker 00:
There was multiple rounds of that as well.

[00:32:20] Speaker 00:
There was no need to list a separate verdict question for the protectable character because that is an element

[00:32:29] Speaker 00:
of the works.

[00:32:30] Speaker 00:
And if you go to the James Bond cases, if you find that the character comes from that particular work, you find infringement of that work.

[00:32:38] Speaker 00:
It's not like it has its own independent copyright registration, for example.

[00:32:43] Speaker 00:
It is an element.

[00:32:44] Speaker 00:
So when the jury found this infringed, they're finding infringement of the character.

[00:32:48] Speaker 00:
And going to the 2D character, right?

[00:32:50] Speaker 00:
So they found that the 2D character without even all the conceptual qualities was infringed and virtually identical.

[00:32:58] Speaker 00:
So no issue with the verdict form.

[00:33:00] Speaker 00:
I don't think they seriously challenged the verdict form.

[00:33:02] Speaker 00:
That's just, if you're a man, tell them to give us a better verdict form.

[00:33:05] Speaker 00:
Look at the verdict form they proposed.

[00:33:07] Speaker 00:
It was 300 pages long with one of the jury to write a treatise in response to every question about protectable, not protectable, the things that were substantially similar.

[00:33:20] Speaker 00:
That would have never worked.

[00:33:21] Speaker 00:
And the rules allow for a general verdict, so long as you go by copyright by copyright registration, the rest is for damages.

[00:33:32] Speaker 00:
I don't have any further, if you have questions.

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

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

[00:33:42] Speaker 01:
Thank you, Your Honor.

[00:33:42] Speaker 01:
There's four points I'd like to make, but I want to hone in on the question Judge Nelson had, which is,

[00:33:49] Speaker 01:
and the entire panel, whose job is it to make the differentiation at the extrinsic test?

[00:33:56] Speaker 01:
And I think if this court adopts instruction 14 as the test, I think then that should be, then that will become the standard jury instruction, at least for motion pictures, which is here is a list of elements.

[00:34:09] Speaker 01:
They could be protected.

[00:34:10] Speaker 01:
Maybe they're not protected.

[00:34:12] Speaker 01:
We're going to figure it out at trial with experts.

[00:34:14] Speaker 01:
There'll be arguments to the jury and the jury will figure out what's protected, what's not protected.

[00:34:18] Speaker 01:
To me that's inconsistent with this court's precedent because that will then blur the extrinsic and the intrinsic test, which is, I don't say it's unique to this circuit but other circuits don't follow the extrinsic versus intrinsic test.

[00:34:30] Speaker 01:
The intrinsic test, which is the comparison of the works as a whole, that has to happen after the extrinsic test.

[00:34:37] Speaker 01:
and the extrinsic test is for the district court.

[00:34:40] Speaker 01:
Look, I'm not saying it's easy always to differentiate.

[00:34:42] Speaker 03:
Why wouldn't you just then have summary judgment on the extrinsic test and then it's decided beforehand?

[00:34:49] Speaker 01:
Well, you could have summary judgment.

[00:34:50] Speaker 01:
Did you move for summary judgment?

[00:34:51] Speaker 01:
I don't believe we moved on those grounds.

[00:34:53] Speaker 01:
The protectability of the character as a character was definitely part of summary judgment.

[00:34:58] Speaker 01:
The issue is you could have the extrinsic test and the judge could identify and then that goes into

[00:35:05] Speaker 01:
the jury instructions.

[00:35:06] Speaker 01:
And that's the procedure of Mattel and Harper House, where the district court did the work.

[00:35:12] Speaker 01:
And that happened in Apple as well.

[00:35:14] Speaker 01:
It just so happened in Apple, it was resolved at summary judgment.

[00:35:17] Speaker 01:
And it wasn't a software case.

[00:35:19] Speaker 01:
That was actually the graphical interface.

[00:35:22] Speaker 01:
It was the imagery of using a desktop metaphor for windows, like seeing the windows and the files on the screen.

[00:35:28] Speaker 03:
My problem with this argument is that this is all kind of judge-made law, right?

[00:35:31] Speaker 03:
None of this is compelled by the statute, by copyright law.

[00:35:34] Speaker 03:
who has to filter versus not, right?

[00:35:37] Speaker 03:
That's correct.

[00:35:38] Speaker 03:
Judge made law.

[00:35:39] Speaker 03:
And I don't read our prior precedent as definitively saying that the judge has to do this.

[00:35:45] Speaker 03:
So why would we create another burden?

[00:35:49] Speaker 01:
Well, Your Honor, respectfully, that is how I read the precedent.

[00:35:53] Speaker 01:
If you look at Mattel and Harper House, there the criticism of the jury instructions in those cases was the judge did not

[00:36:00] Speaker 03:
Identify the specific elements and well, I didn't read it as saying like you have to list them out I think they were saying you need to give some guidance which makes some sense You know, it was pretty general saying, you know, the utilitarian aspect blank spaces It didn't like go line by line of what is protected and not protected But the decision in this court was that it didn't go enough and that it needed to be reversed to give more I think Mattel is even more instructive and those those were sketches sketches of dolls where the judge gave some some elements and

[00:36:31] Speaker 01:
But not all.

[00:36:32] Speaker 01:
And this court said, Judge Kaczynski said, no, you've got to give more than that.

[00:36:35] Speaker 01:
Because otherwise... But that was summary judgment, though, right?

[00:36:38] Speaker 01:
Well, there were jury instructions being reviewed in the Mattel case.

[00:36:42] Speaker 03:
Oh, OK.

[00:36:43] Speaker 01:
Yeah.

[00:36:45] Speaker 01:
And then in Skidmore, which is the en banc decision from this court, the actual instruction, instruction number 16, which is footnote 10, that actually has three examples of non-protectable elements.

[00:36:57] Speaker 01:
And I think that's a good example of how a court

[00:37:00] Speaker 01:
can craft an appropriate jury instruction.

[00:37:04] Speaker 01:
Because the court in Skidmore said, here are three examples of musical elements that are not protectable.

[00:37:08] Speaker 01:
And I think it was arpeggios, chromatic melodies, and three-note sequences, which was the heart of the issue in that case involving the Stairway to Heaven song.

[00:37:18] Speaker 01:
So there the judge was saying, this isn't exhaustive.

[00:37:21] Speaker 01:
But it is examples of things that are specific to this case, this genre, and the actual issues for this jury to decide.

[00:37:28] Speaker 01:
And there, the court approved those jury instructions.

[00:37:36] Speaker 01:
So there was exemplary aspects of non-protectable elements.

[00:37:40] Speaker 04:
No, look, thank you to both council.

[00:37:43] Speaker 04:
You've helped clarify the issues in a pretty complicated case.

[00:37:46] Speaker 04:
That case is now submitted and that adjourns, that finishes us for the day.