[00:00:06] Speaker 04:
Good morning and may it please the court.

[00:00:08] Speaker 04:
I'm Bill Patry, pro bono counsel for plaintiff Jeff Sedlick of nearby Altadena.

[00:00:13] Speaker 04:
I'd like to reserve five minutes for a rebuttal if I may.

[00:00:17] Speaker 04:
Jeff is an individual photographer.

[00:00:20] Speaker 04:
He relies on the licensing of his creative works to support his family.

[00:00:24] Speaker 04:
Defenda Fondi is a wealthy celebrity who blew off Jeff's requests for a license and then bragged about it to her almost 10 million Instagram followers.

[00:00:35] Speaker 04:
This case does not pit photographers against tattoo artists.

[00:00:39] Speaker 04:
The only amicus brief submitted to you by tattoo artists was in support of Jeff.

[00:00:46] Speaker 04:
On page nine of their brief, they write, quote, if this tattoo is not copyright infringement, then no tattoo is.

[00:00:55] Speaker 04:
But it is infringement, plainly and unmistakably, as I shall now explain.

[00:01:01] Speaker 04:
The old cliche that a picture is worth 10,000 words applies in this case.

[00:01:06] Speaker 04:
In our blue brief on page 11, there's an Instagram post that shows defendant Bundy copying Jeff's photograph, which is taped right behind her on the wall.

[00:01:19] Speaker 02:
Mr. Patrick, that of course goes to the copying aspect, but we're looking at the illegal appropriation element where we, at least nowadays, are

[00:01:30] Speaker 02:
doing two analyses, the extrinsic and intrinsic analyses.

[00:01:34] Speaker 02:
I guess I'd like to focus you on the intrinsic analysis to try to understand what you believe would be the correct order of operations before the district court.

[00:01:48] Speaker 02:
Say, for example, we go through the filtering and do everything on the extrinsic, and let's say perhaps even the district court might have erred on that ground.

[00:01:58] Speaker 02:
With the intrinsic,

[00:02:00] Speaker 02:
Right picture worth a thousand world words holistic.

[00:02:02] Speaker 02:
We're looking to the concept and feel How are we able to review at all a jury determination on the intrinsic test?

[00:02:11] Speaker 02:
Isn't it essentially beyond our review?

[00:02:13] Speaker ?:
I

[00:02:14] Speaker 04:
Yes, so if you go to, I guess there's two parts, one of which is if the copying is literal as it was here, right, so on that exhibit you see on the right hand side a statement that it was,

[00:02:31] Speaker 04:
100% exactly the same as a reference.

[00:02:35] Speaker 04:
Portraits are traced directly from the actual photo.

[00:02:39] Speaker 02:
It goes to the jury and they say, let's assume that even if the extrinsic, which can be a question of law that we can reach, goes to the jury and we have to assume that they decided that it was intrinsically not substantially similar.

[00:02:52] Speaker 02:
What are we supposed to do with that?

[00:02:54] Speaker 02:
Do you have a case that would allow us to revisit the jury's verdict on that element?

[00:02:58] Speaker 04:
Yes, so we moved for summary judgment and the question is there was summary judgment which is denied, it goes to a jury and then your question I believe is well it went to a jury and the jury could have done what it did.

[00:03:08] Speaker 04:
Maybe, you know, 99.9% of the people would have done something different but they did that.

[00:03:14] Speaker 04:
So how do you get to review that given that statute?

[00:03:17] Speaker 04:
I believe that's your question.

[00:03:18] Speaker 04:
That is.

[00:03:19] Speaker 04:
All right, so the answer is this.

[00:03:21] Speaker 04:
If you go to one excerpt of record 122

[00:03:26] Speaker 04:
You'll see this is the summary judgment decision and the trial court there says that she focuses on the differences between the two.

[00:03:38] Speaker 04:
Yes?

[00:03:41] Speaker 04:
She emphasized, and the test, of course, is substantial similarity, not substantial differences.

[00:03:47] Speaker 02:
Right, and that may well be error, but we're dealing with a different record after trial, which doesn't allow us to just go back and redo the summary judgment decision, right?

[00:03:58] Speaker 02:
You can see that there are additional different facts before the jury for purposes of our review.

[00:04:05] Speaker 04:
I'm not sure there are different facts because they're the same two works.

[00:04:09] Speaker 04:
The works didn't change from summary judgment to the trial.

[00:04:13] Speaker 04:
They're right there.

[00:04:14] Speaker 02:
Let's assume that I'd rather not revisit the summary judgment question because we have a pretty high standard there given that the jury has other facts.

[00:04:24] Speaker 02:
How do we get at the jury's verdict if we're looking at the jury, even if the district court erred with regard to the denial of summary judgment?

[00:04:32] Speaker 04:
Yes, so it's a question of law, I believe, for this reason.

[00:04:35] Speaker 04:
What the district court said was that she let it go to a jury because there could be more than de minimis differences.

[00:04:45] Speaker 04:
That's why it went to the jury.

[00:04:47] Speaker 04:
And so presumably, you know, the jury focused on more than de minimis differences.

[00:04:52] Speaker 04:
And in Bell versus Wilmot, of course, there's a great deal said about de minimis in that case.

[00:04:58] Speaker 04:
And the error was that the jury was looking at more than de minimis differences as the way they reached the verdict that they did.

[00:05:08] Speaker 04:
That's never been the test.

[00:05:10] Speaker 04:
That was a made-up test.

[00:05:11] Speaker 04:
There's never been, as far as I know,

[00:05:13] Speaker 04:
Any any test in any circle or district court where the jury in regions the determination that you're asking about Said well, we're going to say there's more than de minimis differences, but wasn't that the plaintiffs?

[00:05:28] Speaker 00:
Indication in fact didn't they indicate that that it was a jury question Well, we move for summary judgment and the other side move for summary judgment as well and

[00:05:39] Speaker 04:
So, you know, both sides took the position that it was a question of law.

[00:05:43] Speaker 04:
And, you know, you mean you do have those two side-by-sides and, you know, it's very common for courts of appeals when you have two visual works side-by-side to look at that and say, plus you had the defendant's own admission that was 100% exactly the same.

[00:05:59] Speaker 02:
But where have we said that the intrinsic test could be satisfied as a question of law?

[00:06:07] Speaker 04:
Well, if the intrinsic test is you look at...

[00:06:12] Speaker 04:
Question of whether there are more than de minimis differences.

[00:06:16] Speaker 04:
That's not the intrinsic test.

[00:06:18] Speaker 04:
The intrinsic test is the total concept in the field.

[00:06:21] Speaker 03:
Was there a jury instruction that you claim was there?

[00:06:24] Speaker 04:
No, not on substantial similarity.

[00:06:26] Speaker 04:
On fair use, absolutely.

[00:06:27] Speaker 04:
There were fatal and egregious jury instructions on fair use, but not for fair use, not for substantial similarity for the jury instructions, no.

[00:06:37] Speaker 03:
So my question is, so doesn't the Rule 50B motion

[00:06:41] Speaker 03:
fail because you didn't file a rule 50A motion?

[00:06:47] Speaker 04:
That's with respect to fair use but not with respect to substantial similarity.

[00:06:52] Speaker 03:
You filed a 50A motion?

[00:06:54] Speaker 04:
50A, 50B, 59.

[00:06:57] Speaker 04:
And the question of course that we're presenting here and that Judge Johnson was asking is how do you get to

[00:07:03] Speaker 04:
Decide this after shall make judgment and there's a jury and the answer is of course that In the and properly instructed jury now property much less yes absolutely that's true you had the bard case which talked about Ortiz and said if there was an error of law

[00:07:20] Speaker 04:
Nevertheless, that is reviewable and reviewable de novo, and the error of law was allowing the jury to reach the intrinsic test based upon the wrong standard which was more than de minimis.

[00:07:33] Speaker 02:
Don't they have to reach the... I mean, this is a question I'm going to have as I look at these cases for your friend as well.

[00:07:39] Speaker 02:
Strikes me that originally going back to Croft's the intrinsic test was conceived as a plaintiff protective test to ensure that a judge and expert witnesses couldn't slice and dice expression to To avoid a Clear infringement and so they said well even if you know you've got the the mayor Mccheese over here And you've got each our puffin stuff over here

[00:08:02] Speaker 02:
And a jury gets to decide whether they're close enough, and the jury did.

[00:08:08] Speaker 02:
But we've turned that to it's a two-edged sword.

[00:08:13] Speaker 02:
And we've said that the intrinsic test also has to be met.

[00:08:18] Speaker 02:
And so the jury, defined for your client, would have had to have found the same look and concept under the intrinsic test as well.

[00:08:26] Speaker 02:
Do you agree with that?

[00:08:27] Speaker 04:
Yes, I mean, in the end, it's really rather simple.

[00:08:31] Speaker 04:
You have access, you have copying, which is here, and then you get to the end question, which is, are those two works substantially similar?

[00:08:39] Speaker 04:
Whether you call it extrinsic, intrinsic?

[00:08:41] Speaker 02:
But we have.

[00:08:42] Speaker 02:
The fact is we have, and you said we have to meet both.

[00:08:45] Speaker 04:
Yes, but still has to be a reasonable jury.

[00:08:49] Speaker 04:
It can't be any jury, right?

[00:08:50] Speaker 04:
So there is that qualification that a jury, even using the intrinsic test, has to be a reasonable jury, and this one could not have been a reasonable jury.

[00:09:01] Speaker 02:
But I guess going then to the, assuming we, assuming I agree with you on that piece, what do we do with the fact that the jury then went on to find fair use as to the other uses,

[00:09:14] Speaker 02:
and that that wasn't properly challenged below.

[00:09:20] Speaker 04:
No, I think on fair use there are two fatal errors in that.

[00:09:24] Speaker 04:
The one is the refusal to inform the jury that the court had already found as a matter of law two and a half of the factors, yes?

[00:09:33] Speaker 04:
And under this, you know, court's rulings, United States versus Phillips,

[00:09:41] Speaker 04:
That became law of the case.

[00:09:43] Speaker 04:
So she could never, I've been doing fair use cases for 40 years, maybe even more than 40 years.

[00:09:50] Speaker 04:
I have never seen a trial court in a fair use case do what this one did, which was to decide partial summary judgment on some of the factors and then not tell the jury that she had decided those factors and let them go ahead and balance it and come out with a result.

[00:10:06] Speaker 02:
So you're saying we wouldn't have to remand, even if we agreed with you on the substantial similarity piece for the jury to revisit its verdict, even as to uses that were not substantially similar, but that it found fair use.

[00:10:20] Speaker 04:
You would still need a different jury.

[00:10:22] Speaker 04:
You couldn't obviously go back to that jury.

[00:10:24] Speaker 04:
But you could remand for another jury.

[00:10:26] Speaker 04:
The second part of it is that after Google the Oracle, the Supreme Court said that the ultimate question of unfair use is a legal question.

[00:10:35] Speaker 04:
And it's one for the judge to decide.

[00:10:39] Speaker 04:
This was the general verdict of yes or no for fair use.

[00:10:42] Speaker 04:
I don't know where the fact is that you would ever defer to with yes or no.

[00:10:46] Speaker 04:
Is yes or no a factor?

[00:10:48] Speaker 04:
Is it a question of law?

[00:10:49] Speaker 04:
The Supreme Court in Oracle v. Google, which was a general verdict case, said that the ultimate question of fair use is a legal question reviewed de novo.

[00:11:00] Speaker 04:
And you have the absolute ability to review that de novo, plus you have the jury instructions which were fatally flawed by refusing to instruct the jury about those issues.

[00:11:12] Speaker 04:
We objected to those vehemently and we said, look, if you do that, we're going to end right back up here after we come to the court of appeals and they reverse you.

[00:11:22] Speaker 04:
And she shrugged her shoulders and said, well, sometimes that happens.

[00:11:25] Speaker 04:
So that's why we're here.

[00:11:27] Speaker 03:
So, but Google did say you could get an advisory decision from the jury on fair use.

[00:11:37] Speaker 03:
And I'm wondering how that could have been accomplished in this case given the yes or no instead of factor by factor.

[00:11:46] Speaker 04:
So my time is almost up.

[00:11:47] Speaker 04:
I'd be happy to answer it, so I still have rebuttal.

[00:11:50] Speaker 03:
You can answer and I'll bring you some.

[00:11:52] Speaker 04:
Okay.

[00:11:52] Speaker 04:
The solution is really simple, and Judge Alsop has done this before, and in the two AI cases that he and Judge Cabria had, that's what they're going to do.

[00:12:01] Speaker 04:
It's this.

[00:12:02] Speaker 04:
So the only way she ever could have saved this jury from being fatally flawed was to do this, was to have a special verdict.

[00:12:11] Speaker 04:
And she would say, I've already decided that two and a half of these factors, I believe that commerciality, I believe that the fourth factor are disputed issues of fact, you go decide those and then you give me the answer and then she would then

[00:12:27] Speaker 04:
decide those and balance them as Google instructed, you know, courts to do.

[00:12:32] Speaker 04:
They said it's the ultimate question for the court to balance these.

[00:12:35] Speaker 04:
So she could have saved that jury had it been a special verdict.

[00:12:39] Speaker 04:
That's what Judge Alsop did in the Cripple case and that's what they're doing in those two AI cases.

[00:12:44] Speaker 04:
That's the only way it could possibly have been saved.

[00:12:47] Speaker 04:
So at a minimum, you have to vacate the jury instructions because they were fatally flawed and because Google said it's an ultimate question for the court.

[00:12:57] Speaker 04:
So I'd like to reserve whatever time I have left.

[00:13:00] Speaker 04:
Thank you so much.

[00:13:10] Speaker 05:
Good morning.

[00:13:11] Speaker 05:
My name is Alan Grodzki and I represent the appellee Kat Von D and High Voltage Tattoo.

[00:13:17] Speaker 05:
This is not a case about the tattoo industry.

[00:13:20] Speaker 05:
It's not a case about the photography industry.

[00:13:22] Speaker 05:
It's not a case about tattoos in general.

[00:13:25] Speaker 05:
It's a case about a single tattoo, the Kat Von D inked for free for a friend.

[00:13:30] Speaker 05:
A few social media posts that show her process from beginning to end of making that tattoo.

[00:13:36] Speaker 05:
in a sketch that was used, the only purpose of which was used to size and place that tattoo.

[00:13:42] Speaker 05:
The jury was able to examine the photograph.

[00:13:44] Speaker 05:
They actually saw the arm on which the tattoo was inked.

[00:13:47] Speaker 05:
They saw the social media posts.

[00:13:50] Speaker 05:
They were properly instructed on substantial similarity.

[00:13:53] Speaker 05:
And based on the evidence and testimony, they made the factual determinations to reach a verdict in my client's favor.

[00:14:00] Speaker 05:
What the appellant is asking you to do is to throw out dozens of years of controlling Ninth Circuit law on the standard for reviewing jury verdicts on substantial similarity, on the test for substantial similarity in cases involving photographs, and on the consequences of failing to bring a Rule 50A motion.

[00:14:18] Speaker 05:
The jury here was properly instructed, and the judgment should be affirmed.

[00:14:22] Speaker 05:
Everybody agrees what the appropriate test here is.

[00:14:26] Speaker 05:
It's unlawful appropriation for substantial similarity.

[00:14:29] Speaker 05:
One thing that isn't discussed is that in looking at substantial similarity, you have to look at each challenged work separately.

[00:14:36] Speaker 05:
There were six challenged works on substantial similarity and everyone had to be examined separately and has to be examined separately on appeal.

[00:14:44] Speaker 01:
in terms of the standard of... Could you address the question that Judge Johnstone asked your friend on the other side on this issue of the jury, right?

[00:14:55] Speaker 01:
So the question went to the jury.

[00:14:57] Speaker 01:
So how are we then to review that decision?

[00:15:02] Speaker 01:
They've made a conclusion

[00:15:04] Speaker 05:
Right.

[00:15:04] Speaker 05:
The jury made a decision on the intrinsic test and on the extrinsic test.

[00:15:08] Speaker 05:
And the intrinsic test is what we're talking about.

[00:15:11] Speaker 05:
And the Ninth Circuit for some time has said that that is an ordinary person's subjective impression of the similarities without any expert existence and its substantial similarity in total concept and feel.

[00:15:25] Speaker 05:
The Williams Court said it is a subjective test, and the Corbello case said it is a question of fact.

[00:15:32] Speaker 05:
The Ninth Circuit has said over and over again that you should not second-guess the jury's application of the intrinsic test.

[00:15:39] Speaker 05:
And in fact, it's hard to imagine how you could.

[00:15:42] Speaker 05:
The question is, what's your subjective belief about total concept and feel based on looking at these works?

[00:15:49] Speaker 05:
That's what you got.

[00:15:50] Speaker 01:
I guess I take their argument to be that it was an error for the judge to have even done that, right?

[00:15:57] Speaker 01:
That that was the error and that's the legal issue.

[00:16:01] Speaker 05:
Right.

[00:16:01] Speaker 05:
Well, so in other words, it was an error not to grant summary judgment.

[00:16:06] Speaker 05:
Well, that's not appealable.

[00:16:08] Speaker 05:
The problem is this is not an appealable decision based on Dupre and the other NRTs.

[00:16:14] Speaker 05:
First of all, the record is not the same in the summary judgment motion as it is at trial.

[00:16:19] Speaker 05:
Among other things, the summary judgment motion, the judge didn't see the actual tattoo.

[00:16:23] Speaker 05:
They did at trial because Mr. Farmer was there and showed his arm.

[00:16:27] Speaker 05:
Second of all, critical element in determining

[00:16:32] Speaker 05:
substantial similarity is that the obligation of the person claiming infringement to identify what are the similarities.

[00:16:40] Speaker 05:
There was a declaration or an interrogatory response on summary judgment where Mr. Sedlik identified what those things were and there was a list of 50 or 60, whatever there were.

[00:16:50] Speaker 05:
That was not introduced at trial.

[00:16:51] Speaker 05:
Mr. Sedlick had different testimony at trial about what the similarities were.

[00:16:55] Speaker 05:
So the record is not the same.

[00:16:57] Speaker 05:
And in any event, Dupre and Ortiz, what they say is, you can review a summary judgment that was decided on an issue of law.

[00:17:05] Speaker 05:
In other words, if a court denies summary judgment saying, as a matter of law, I disagree with you.

[00:17:10] Speaker 05:
But when a court finds, as the court did here,

[00:17:13] Speaker 05:
that there were material disputes of fact, it's not reviewable when there is a trial and a new record.

[00:17:18] Speaker 02:
And I should... Mr. Kraski, why isn't this the exceptional case where these are virtually identical?

[00:17:23] Speaker 02:
We have one of the uses that's at issue is the artist directly copying or indirectly copying the photo.

[00:17:35] Speaker 02:
The photo is right there.

[00:17:36] Speaker 02:
I mean, we have lots of these other cases where we get to the intrinsic test

[00:17:40] Speaker 02:
Because once we've filtered everything through the extrinsic test, there could be some gaps there.

[00:17:46] Speaker 02:
And again, I take Croft's as being plaintiff protective in terms of saying, you could have, we just don't want you to slice and dice the expression in so many places so that suddenly you have something that can't still capture the look and feel of the original piece.

[00:18:01] Speaker 02:
But in this case, this is a photo that was asked to and was successively tattooed

[00:18:08] Speaker 02:
on someone's arm.

[00:18:11] Speaker 02:
It is the same photo, and it seems like what we're doing now is using the extrinsic test to kind of slice and dice that to get away from the fact that this is the same photo.

[00:18:21] Speaker 02:
Why doesn't, for example, unicolors control here?

[00:18:23] Speaker 05:
All right, well, so let's talk about unicolors and the specific facts.

[00:18:28] Speaker 05:
Again, I want to point out we have to look at this as to every single challenged work.

[00:18:33] Speaker 02:
Let's keep it on the tattoo itself to keep it simple.

[00:18:35] Speaker 05:
All right, fair enough.

[00:18:36] Speaker 05:
So let's keep it on the tattoo.

[00:18:37] Speaker 05:
All right.

[00:18:38] Speaker 05:
Unicolors case.

[00:18:38] Speaker 05:
So first of all, to be clear, before I mention unicolors,

[00:18:42] Speaker 05:
There is no case so far where the Ninth Circuit has ever reversed a jury's determination on the intrinsic test based on disagreeing with the jury's subjective opinion.

[00:18:55] Speaker 05:
There are cases where the court has said, we're reversing because there isn't sufficient evidence, you didn't put the right evidence in, that's the Antonic case where they didn't actually put the challenged work.

[00:19:04] Speaker 05:
There's the Olson case that they cite where the court says, the jury was reasonable in making their decision,

[00:19:10] Speaker 02:
But we're reversing on the extrinsic test and if we reverse... No, I take your point that you don't have anything quite in this posture, really either way.

[00:19:18] Speaker 05:
Right, so we have unicolors.

[00:19:19] Speaker 05:
And unicolors, of course, is a summary judgment case.

[00:19:22] Speaker 05:
And it says, and the way unicolors has been applied, and I'd ask you, I understand this is only a trial court case, it's the Dr. Seuss versus Comet Mit case, but that court went through sort of an analysis of all the cases that relied on unicolors.

[00:19:36] Speaker 05:
and which they described as being exceedingly limited, and all pretty much dealing with fabric and apparel that were identical.

[00:19:45] Speaker 05:
And that's really what I think Unicolors is about.

[00:19:49] Speaker 05:
It certainly makes sense.

[00:19:51] Speaker 05:
It would make no sense.

[00:19:55] Speaker 05:
If Mr. Sedlick's photograph was uploaded onto somebody's website for an advertising, the exact photograph,

[00:20:02] Speaker 05:
It would be absurd to say, we have to have the jury decide if this exact photograph and this exact photograph are the same.

[00:20:08] Speaker 02:
But I think we've also said that just transferring it onto a different medium can't alone be a difference, right?

[00:20:15] Speaker 02:
We're looking at similarities rather than differences.

[00:20:17] Speaker 02:
So if you have everything else is the same and we're just going to change it from being on photo paper to someone's skin, how's that?

[00:20:25] Speaker 05:
I agree, I have never said that just transferring onto another, transferring something onto a skin in and of itself means it's different.

[00:20:34] Speaker 05:
This is substantial similarity.

[00:20:36] Speaker 05:
You look at the tests.

[00:20:37] Speaker 05:
This is not something where somebody took the photo and transferred it onto her skin.

[00:20:42] Speaker 03:
I think what we're all struggling with here is that, you know, we look at it, we say this is the same photograph.

[00:20:51] Speaker 03:
Yet, through all these machinations, it ended up being the jury saying, oh, but it's not substantially similar.

[00:20:58] Speaker 03:
And I think it kind of defies rationality to suggest that it's not the same photograph.

[00:21:09] Speaker 03:
It is the same photograph.

[00:21:11] Speaker 03:
It's on a different medium.

[00:21:13] Speaker 03:
So how did the jury get where it got?

[00:21:17] Speaker 05:
I don't want to disagree with you, but it's not the same.

[00:21:21] Speaker 05:
It would be one thing if somebody had taken that photograph and put it on the skin, but she didn't do that.

[00:21:29] Speaker 05:
She drew it.

[00:21:29] Speaker 05:
She used it as a reference.

[00:21:30] Speaker 05:
There's no question.

[00:21:31] Speaker 05:
We admitted that she did.

[00:21:32] Speaker 03:
Trace did.

[00:21:33] Speaker 05:
No, no, no, no, no.

[00:21:35] Speaker 05:
That's not correct.

[00:21:36] Speaker 05:
So this is what happened.

[00:21:37] Speaker 05:
Let me talk about what happened with this photograph.

[00:21:40] Speaker 05:
She needs to place and locate the photograph on the arm and have the customer say this is in the right place and this is the right size.

[00:21:49] Speaker 05:
So she traces it.

[00:21:50] Speaker 05:
She traced it and she created that sketch.

[00:21:52] Speaker 05:
And she uses a Thermafax machine to make a temporary purple line of the sketch which she puts on the arm to say,

[00:22:02] Speaker 05:
Do you like the placement of this?

[00:22:04] Speaker 05:
That stuff all disappears.

[00:22:06] Speaker 05:
That stuff all washes off once the person determines this is where I want it.

[00:22:12] Speaker 05:
And then she looks at the sketch and she draws it.

[00:22:14] Speaker 05:
And she makes her own decisions.

[00:22:17] Speaker 05:
She made decisions about the hair.

[00:22:20] Speaker 05:
She made decisions about the shading.

[00:22:21] Speaker 05:
She made decisions about the clothing, which wasn't the same.

[00:22:24] Speaker 05:
She made a number of different decisions.

[00:22:26] Speaker 03:
Isn't this like the Warhol case?

[00:22:30] Speaker 05:
I don't know if it's like the Warhol case, because I don't know what... Warhol case was the exact photograph that was painted over, first of all.

[00:22:38] Speaker 05:
But second of all, the Warhol case, I don't know that it ever went to a jury, and I don't know how you compare a different photograph... Warhol was not a case where somebody said, I'm going to draw this photo.

[00:22:50] Speaker 05:
That did not happen in Warhol.

[00:22:52] Speaker 05:
It's a different case.

[00:22:53] Speaker 05:
So I don't see how you can look at

[00:22:57] Speaker 05:
things that happened in other cases where different people looked, I mean, every substantial similarity case has got to be- Counsel, that's our job.

[00:23:05] Speaker 01:
Well, no, I understand that.

[00:23:06] Speaker 05:
You certainly, well, no, it's certainly your job to look at the law in the other cases, and I understand that.

[00:23:12] Speaker 05:
But the fact that one jury or one judge found two things substantially similar in one case, I don't know how that applies in this case, especially when the Second Circuit doesn't have a standard that says,

[00:23:23] Speaker 05:
The intrinsic test is left to the jury and it's their subjective holistic opinion.

[00:23:30] Speaker 02:
I guess this is I wanted to walk you through I guess a hypothetical because I'm just trying to figure out whether the intrinsic test which was an adaptation in some ways of the Second Circuit test and as you've said has taken a different direction.

[00:23:44] Speaker 02:
I guess my concern is that

[00:23:49] Speaker 02:
we're leaving it in a place where the question of copyright infringement becomes entirely unreviewable and uneven.

[00:23:56] Speaker 02:
And so for an example, so to take Miles Davis recorded, Someday My Prince Will Come from Snowlight.

[00:24:04] Speaker 02:
It is the same melody.

[00:24:08] Speaker 02:
If you look at a lot of our intrinsic cases, they're dealing with really tricky questions of a riff here and there in a particular song.

[00:24:16] Speaker 02:
A lot of them deal with music, and music is a harder medium to grasp sometimes than photographs, at least maybe for judges.

[00:24:26] Speaker 02:
He records it.

[00:24:27] Speaker 02:
He credits it that it was from.

[00:24:30] Speaker 02:
But I could imagine that you have the identical melody.

[00:24:33] Speaker 02:
It meets the extrinsic test.

[00:24:36] Speaker 02:
You filter everything away.

[00:24:37] Speaker 02:
You've got the same notes in roughly the same order.

[00:24:39] Speaker 02:
But then they go and make the arguments that, as I understand, your client made to the jury here is that,

[00:24:47] Speaker 02:
They had a different intention.

[00:24:49] Speaker 02:
There was a different feel of melancholy around it, et cetera.

[00:24:53] Speaker 02:
And so it goes to the jury.

[00:24:54] Speaker 02:
And they say, well, we just feel differently about the Miles Davis tune than we did about the Walt Disney tune, even though it's the exact same tune for legal purposes.

[00:25:02] Speaker 02:
And everyone would understand that that was copyright, and it was licensed, because otherwise it would be infringed.

[00:25:09] Speaker 02:
I guess my concern is we're kind of washing out the value of and the principle of copyright by allowing a jury to reach unreviewable subjective determinations on an intrinsic test that no one has been able to articulate here other than kind of the emotions that are evoked by looking at the photo.

[00:25:30] Speaker 05:
I hear your concern, that's the test.

[00:25:35] Speaker 02:
In your hypothetical... Well, and the test has been criticized, at least as it currently... Again, Croft's was all about protecting the plaintiff, not allowing expert witnesses, and most of our, many of our cases for several decades were about ensuring that an expert witness and a judge couldn't come down at a motion to dismiss or summary judgment to deny the plaintiff

[00:25:53] Speaker 02:
their chance to show a jury that, no, this is the same thing.

[00:25:56] Speaker 02:
But this is really the reverse.

[00:25:59] Speaker 02:
And I worry that it's not quite what we originally got into the intrinsic test to do.

[00:26:05] Speaker 02:
And it creates unreviewable decisions of non-infringement.

[00:26:10] Speaker 05:
It's true, it does, you know, this test is very much akin to credibility tests, which is kind of the Ninth Circuit kind of says the same thing about credibility determinations, that when a jury makes a credibility determination, you kind of can't review it.

[00:26:22] Speaker 02:
Well, but the copyright is kind of a complicated legal concept, right, in terms of the idea, expression, dichotomy.

[00:26:30] Speaker 02:
And I get that on the copying side, and there have been commentators who have noticed, on the copying side, we might want

[00:26:36] Speaker 02:
to test the credibility of whether the tattoo artist really copied the photo.

[00:26:40] Speaker 02:
But that's undisputed in this case.

[00:26:42] Speaker 02:
So what we're really looking at is, was the protectable elements of the photo, are they present in the tattoo?

[00:26:49] Speaker 02:
We look at the similarities.

[00:26:51] Speaker 02:
And if that's the case, how can that be, does the intrinsic test kind of defeat

[00:26:58] Speaker 02:
I don't think so.

[00:27:00] Speaker 05:
I think the intrinsic test is part of it.

[00:27:03] Speaker 05:
To determine what is protectable, you've got to look at it from two angles.

[00:27:07] Speaker 05:
You look at it from an objective angle, you look at it from a subjective angle.

[00:27:10] Speaker 02:
Even if objectively it's an illicit copy.

[00:27:13] Speaker 05:
To be clear, I think we win on the extrinsic test as well.

[00:27:18] Speaker 05:
That is the test and the test makes sense that we're looking at this.

[00:27:22] Speaker 05:
We've decided we're gonna look at it from two angles.

[00:27:24] Speaker 05:
We're gonna look at it from an extrinsic angle and we're gonna look at it from an intrinsic angle.

[00:27:27] Speaker 05:
We're gonna look at it objectively, break it apart, look at it separately, but we need a jury to get together and say, yeah, I feel this thing is similar.

[00:27:36] Speaker 05:
And if they don't, because they saw the tattoo and they see the differences and they think it's different, then that's something that I think you have to respect.

[00:27:44] Speaker 05:
Before my time runs out, can I briefly discuss the fair use issue?

[00:27:48] Speaker 05:
So I just want to talk about there are two issues with respect to jury on fair use.

[00:27:53] Speaker 05:
One is whether there should have been a jury, and the other was certain instructions.

[00:27:58] Speaker 05:
And whether there should be a jury, I want to be clear, there is at no point in the record, no point where Mr. Sedlick's counsel told the court, you can't try this case with a jury.

[00:28:10] Speaker 05:
It never happened.

[00:28:11] Speaker 05:
They submitted jury instructions.

[00:28:13] Speaker 05:
They submitted verdict forms.

[00:28:15] Speaker 05:
They never took the position that it should be tried to a court.

[00:28:18] Speaker 05:
Google, in the Google case, the trial court presented the jury with a question, is this fair use?

[00:28:25] Speaker 05:
They answered yes or no, and the Supreme Court said that was the right decision, that was how you do it.

[00:28:30] Speaker 05:
In Divine Dharma, exactly the same, exactly like our case.

[00:28:35] Speaker 05:
Frankly, we took our jury instructions and our verdict form from Google.

[00:28:39] Speaker 05:
Divine Dharma, same thing.

[00:28:41] Speaker 05:
Same in the Griner case.

[00:28:42] Speaker 05:
There is no case where anybody has ever said the jury can't answer the ultimate question.

[00:28:48] Speaker 05:
It's just that the court on a Rule 50A motion gets to review the legal elements.

[00:28:53] Speaker 05:
In terms of the instructions, there was only one social media post that the jury made a fair use decision on.

[00:29:00] Speaker 05:
It was what we call the process post where Kat Von D was in the process of making a tattoo

[00:29:05] Speaker 05:
and it was the post that had the copy of Sedlick's photo hanging in the wall, which is why we did not say that it wasn't substantially similar.

[00:29:12] Speaker 05:
We stipulated that it was substantially similar.

[00:29:15] Speaker 05:
That post, so factor two weighed in favor of Mr. Sedlik.

[00:29:21] Speaker 05:
The jury instruction said factor two tends to weigh in favor of Mr. Sedlik.

[00:29:27] Speaker 05:
And when I argued closing argument, I said to the jury, factor two weighs in favor of Mr. Sedlik.

[00:29:33] Speaker 05:
Then there's factor three.

[00:29:34] Speaker 05:
That's the amount of the photo.

[00:29:36] Speaker 05:
Now to be clear, in the summary judgment motion, the court only looked at the tattoo and made no findings about the social media posts.

[00:29:43] Speaker 05:
Nevertheless, since that post at issue had the entire photo, I said to the jury, factor three weighs against a finding of fair use.

[00:29:53] Speaker 05:
Factor two and three weigh against.

[00:29:55] Speaker 05:
Factor one and four, I argued, weigh in favor.

[00:29:58] Speaker 05:
So there is no error.

[00:30:00] Speaker 05:
The error on the jury instructions is harmless because the only finding they made on fair use in our favor was on a post that I argued, I told the jury, factors two and three weigh against us.

[00:30:13] Speaker 02:
I'm sorry what's on the fair use.

[00:30:16] Speaker 02:
What's your take then if for whatever reason we reverse with respect to substantial similarity what then given the jury's unchallenged findings on fair use.

[00:30:23] Speaker 05:
Well, the jury only made a finding, the jury made finding a fair use on two social media posts.

[00:30:31] Speaker 05:
They made a finding on the process post, they made a finding on one of the other posts which they weren't supposed to get to.

[00:30:38] Speaker 05:
The jury hasn't made a decision on fair use as to those other uses and they've waived the right to argue, they failed to file a rule 50A motion so you can't look at that.

[00:30:49] Speaker 05:
I think it has to be remanded for a new trial on fair use.

[00:30:53] Speaker 05:
Is this my, am I past my time?

[00:30:55] Speaker 03:
Yes.

[00:30:56] Speaker 03:
Okay.

[00:30:56] Speaker 03:
Thank you.

[00:31:03] Speaker 04:
Briefly, on Google View Oracle, I worked in that case for 10 years as in-house counsel for Google, and they reviewed it de novo.

[00:31:10] Speaker 04:
There were no facts.

[00:31:11] Speaker 04:
It was simply a yes or no.

[00:31:15] Speaker 04:
And they said it was a legal question, so you can review that too.

[00:31:18] Speaker 04:
Judge Johnson, I think, went to the exact heart of the matter, and that's the exception.

[00:31:23] Speaker 04:
Admittedly, this is an exceptional case on the summary judgment and substantial similarity.

[00:31:28] Speaker 04:
What my friend in the other side is basically asking for is jury nullification.

[00:31:34] Speaker 04:
Yes?

[00:31:35] Speaker 04:
For this reason.

[00:31:36] Speaker 04:
You have those two works.

[00:31:38] Speaker 04:
The defendant admitted 100% copying and tracing too, by the way.

[00:31:43] Speaker 04:
It's not true.

[00:31:44] Speaker 04:
It's not traced.

[00:31:44] Speaker 04:
The exhibit that's on our page 11 says that it was traced directly from the original.

[00:31:50] Speaker 04:
But Unicolor is on point here.

[00:31:53] Speaker 04:
It said that

[00:31:54] Speaker 04:
When works are overwhelmingly identical, the district court should have concluded that no reasonable jury could find that the works were not substantially similar.

[00:32:03] Speaker 04:
We will know what the jury did.

[00:32:04] Speaker 04:
We don't know what the mystery of Stonehenge is either, but we do know the jury should never have done this.

[00:32:10] Speaker 04:
And when you have two works that are virtually identical, where they admit they're virtually identical, and where she admitted that she copied all the protectable elements of it, you know,

[00:32:22] Speaker 04:
And there are any intrinsic tests that should never have gone to a jury.

[00:32:25] Speaker 04:
Otherwise, as Judge Johnstone was indicating, you have a situation where jurors can do whatever they want and it's not reviewable.

[00:32:32] Speaker 04:
But that is your job to review these.

[00:32:35] Speaker 04:
It is not any jury.

[00:32:36] Speaker 04:
It has to be a reasonable jury.

[00:32:38] Speaker 04:
And why this jury was so unreasonable is a mystery we'll never know, but it can't stand.

[00:32:44] Speaker 04:
They also didn't decide fair use, by the way, because they had no substantial similarity.

[00:32:49] Speaker 04:
So you would have to remand for fair use on that as well.

[00:32:53] Speaker 03:
Thank you so much.