[00:00:02] Speaker 02:
Mr. Kaczynski, you may proceed.

[00:00:05] Speaker 04:
May it please the court?

[00:00:09] Speaker 04:
I want to start off by referencing two documents that I think are particularly significant in this case.

[00:00:19] Speaker 04:
And the first one is a transcript of a video that appeared on A&E Network in 1992.

[00:00:30] Speaker 04:
featuring the two producers of Top Gun Original and also the producer of Top Gun Maverick, and that's the legendary Jerry Bruckheimer and Don Simpson.

[00:00:47] Speaker 04:
And they talk about it.

[00:00:49] Speaker 04:
This is 1992, a few years after Top Gun has been released and was a great hit.

[00:00:57] Speaker 04:
And they explain how they came to make this movie.

[00:01:03] Speaker 04:
And you can see the transcript at 2ER 281 if you want to follow along or you can take my word for it.

[00:01:11] Speaker 04:
And so the story is that Jerry Bruckheimer goes in to see Ed Simpson and Simpson is on the phone and so to while away the time Jerry Bruckheimer picks up a magazine, California magazine.

[00:01:27] Speaker 04:
Now why California magazine?

[00:01:29] Speaker 04:
California Magazine at the time was a bastion of what we call the new journalism.

[00:01:35] Speaker 04:
And that was the idea that you tell a story, a true story, but you tell it in artistic terms.

[00:01:42] Speaker 04:
You don't tell all the facts.

[00:01:43] Speaker 04:
You tell the facts that matter.

[00:01:45] Speaker 04:
You tell them in colorful terms.

[00:01:47] Speaker 04:
You essentially make a story that is fun to read and interesting to read.

[00:01:52] Speaker 04:
And he picks up this story and he is tense-fixed.

[00:02:00] Speaker 04:
He's sitting there reading, and Don Simpson, who's on the phone supposedly talking to somebody, says, his eyes get like ginormous.

[00:02:12] Speaker 04:
And he looks at this thing, his eyes get like ginormous.

[00:02:16] Speaker 04:
So Simpson hangs up the phone, and he says, reads this, and he says, we got to get this.

[00:02:25] Speaker 04:
We got to buy this.

[00:02:27] Speaker 04:
He said, get on the phone with California Magazine.

[00:02:30] Speaker 04:
We want this right away.

[00:02:32] Speaker 02:
The district court decided this under the extrinsic test based on the lack of objective similarities between the works.

[00:02:40] Speaker 02:
So why is Mr. Bruckheimer and Mr. Simpson's subjective view of how the article inspired them relevant to assessing the objective similarities?

[00:02:50] Speaker 04:
Well, this goes to

[00:02:52] Speaker 04:
Two points.

[00:02:54] Speaker 04:
One of them is their reaction in reading this article, and these are experts, of course, in the field, and they read the article and they don't say, oh, these are a bunch of facts, let's go out to Miramar and get the facts and get a story.

[00:03:10] Speaker 04:
What they want is a story.

[00:03:13] Speaker 04:
They explain, they explain why.

[00:03:16] Speaker 04:
What grabbed me was the colorful incidents, the colorful anecdotes, the characters, these guys' names like Hollywood, Yogi, Parson.

[00:03:27] Speaker 04:
And our expert, Henry Bean, explains why this matters.

[00:03:36] Speaker 04:
Why he's not, Yone is not talking facts, but he is describing

[00:03:44] Speaker 04:
is facts on the ground, but through a lens of the new journalism.

[00:03:49] Speaker 03:
Let me ask you a question about that, and put aside Judge Miller's question about whether their subjective views make a difference.

[00:03:58] Speaker 03:
Is the original film, which I'll call Top Gun, at all relevant to this case?

[00:04:04] Speaker 03:
Of course.

[00:04:05] Speaker 04:
Why?

[00:04:06] Speaker 04:
Well, the film built the characters

[00:04:11] Speaker 03:
that based on the... But your claim is that the copyright in the article was infringed, correct?

[00:04:20] Speaker 03:
I'm answering your question.

[00:04:21] Speaker 04:
Yeah, I understand, but I'm trying to focus your... The film is based on the story and it lifts certain things.

[00:04:30] Speaker 04:
So let's assume for a moment that... And those things... I'm sorry, I didn't mean to finish.

[00:04:35] Speaker 04:
I really was getting to your answer.

[00:04:36] Speaker 04:
I know, I understand.

[00:04:38] Speaker 04:
So they lift certain things.

[00:04:41] Speaker 04:
They lift the flyers, the team, the use of the names, the use of the nicknames, the location, the way the sky and the sun and the sea are portrayed,

[00:04:56] Speaker 04:
small town, 1950s small town, siters for the base.

[00:05:02] Speaker 04:
All of those things get put into the 1976 film and they get carried forward to Top Gun Maverick.

[00:05:12] Speaker 04:
Many of them get carried forward.

[00:05:15] Speaker 04:
Most of them get carried forward.

[00:05:17] Speaker 04:
Some of them

[00:05:18] Speaker 04:
that are mentioned in the article are not even mentioned in the movie and they get carried forward.

[00:05:23] Speaker 04:
Like the F-15, the F-14, that it swings back its wings so that it can do a short takeoff.

[00:05:32] Speaker 02:
Not mentioned in the... But that's a fact about the F-14.

[00:05:39] Speaker 02:
Like it really does do that.

[00:05:40] Speaker 02:
Like it's a real plane.

[00:05:41] Speaker 02:
that has a swept wing design.

[00:05:43] Speaker 04:
Everything, and that was a district court's view, that everything is fact.

[00:05:50] Speaker 02:
Well, so not everything is fact.

[00:05:52] Speaker 02:
As I recall, the article said something about the wings sweep out like an eagle or something like that.

[00:05:58] Speaker 02:
That's a very evocative phrase.

[00:06:01] Speaker 02:
That's creative and original and totally protected.

[00:06:04] Speaker 02:
But that's not in the movie.

[00:06:06] Speaker 02:
The movie doesn't use that phrase.

[00:06:07] Speaker 02:
The movie just uses the basic fact that

[00:06:09] Speaker 02:
The wings can go in different configurations.

[00:06:12] Speaker 04:
It does say for short take-offs.

[00:06:14] Speaker 04:
The article does say for short take-offs.

[00:06:16] Speaker 04:
But that's also a fact about why... And you've got the bell that is mentioned in the article.

[00:06:24] Speaker 04:
They buy a bell to put in the bar to ring in case somebody violates the rules.

[00:06:30] Speaker 04:
Not mentioned in the movie.

[00:06:32] Speaker 04:
It becomes a big point in the sequel.

[00:06:36] Speaker 04:
All of these themes get picked up.

[00:06:38] Speaker 04:
The world that Yonay created in his article, the world that he created in California Magazine using the new journalism,

[00:06:47] Speaker 04:
gets transformed into the movie and then gets then moved forward into the matter.

[00:07:03] Speaker 03:
Can I ask you a question?

[00:07:05] Speaker 03:
I still want to get back to Tabqon, and I'm still having some difficulty fitting its relevance into this case.

[00:07:14] Speaker 03:
Had Top Gun never been made, would you have the same claim?

[00:07:21] Speaker 03:
Seems to me you would.

[00:07:22] Speaker 03:
You're saying there's an article and the movie is sensational.

[00:07:27] Speaker 03:
And they bought it?

[00:07:28] Speaker 03:
They paid for it?

[00:07:29] Speaker 03:
No, no.

[00:07:30] Speaker 03:
Put aside whether Top Gun was made or not or whether they paid for it or not.

[00:07:36] Speaker 03:
You have a copyrighted article and then you have a movie, Maverick.

[00:07:39] Speaker 03:
And your claim in this case is that Maverick infringes the copyright of the article, correct?

[00:07:45] Speaker 03:
Yes.

[00:07:46] Speaker 03:
Not the Top Gun infringes the copyright because they had permission to do it.

[00:07:51] Speaker 03:
I'm sorry, I may have misunderstood.

[00:07:53] Speaker 03:
Top Gun does not infringe the copyright because they had permission to... They had a license.

[00:07:58] Speaker 03:
Okay.

[00:07:58] Speaker 03:
They had a license.

[00:08:00] Speaker 03:
Again, tell me why Top Gun is at all relevant to this case.

[00:08:04] Speaker 03:
It sounds evocative to say that Maverick is a sequel, and the sequel must have followed from the first, and since they got a license for the first, they must have needed one for the second.

[00:08:19] Speaker 03:
But there's no case law that actually says that.

[00:08:22] Speaker 03:
And so isn't our job to compare the similarity of Maverick to the article and forget all about Top Gun?

[00:08:30] Speaker 03:
Well, we can't forget about Top Gun.

[00:08:32] Speaker 03:
Well, I can.

[00:08:33] Speaker 03:
I mean, you can't, but I can, shouldn't I?

[00:08:36] Speaker 04:
Well, I mean, you can, because everything that I've said about Top Gun, or most of it, can be said about Top Gun Maverick.

[00:08:46] Speaker 03:
OK, and that's what I'd like you to get to.

[00:08:50] Speaker 03:
Tell me why Maverick.

[00:08:51] Speaker 04:
I was just explaining, and I think the significance of the interview is that it happened right then.

[00:09:03] Speaker 04:
It happened as a top gun.

[00:09:05] Speaker 04:
But everything they say there can be said about top gun Maverick.

[00:09:11] Speaker 04:
use the article.

[00:09:12] Speaker 04:
And again, remember this is an important policy that Congress adopted in 1976, years before this contract was written, that when copyright owners sell a copyright for a small price and it winds up being fabulously successful,

[00:09:35] Speaker 04:
They have a right, and Congress thought about this for 20 years, passed a statute that says they are entitled to get back the copyright, and the licensee gets a two-year exclusive period to negotiate for a license.

[00:09:50] Speaker 04:
In this case, they're refused.

[00:09:53] Speaker 04:
We gave them notice and they refused to even talk about it.

[00:09:56] Speaker 04:
They just plowed ahead.

[00:09:58] Speaker 03:
I agree with your recitation of the law.

[00:10:01] Speaker 03:
What I'm having, what I want to focus on in this case and what I'm having some difficulty with is why Maverick is substantially similar to the article.

[00:10:12] Speaker 03:
And focusing simply on Maverick, can you tell me why you think there's enough substantial similarity to create a jury question?

[00:10:23] Speaker 03:
Not on what people said in 1999.

[00:10:26] Speaker 03:
I'm just comparing the two works.

[00:10:28] Speaker 04:
I understand fully.

[00:10:29] Speaker 04:
It's fully explained in our expert report, and we need to talk a little bit about the totally insubstantial way the district court dismissed our expert support.

[00:10:41] Speaker 04:
He explains things that came from the article

[00:10:46] Speaker 04:
directly to Top Gun Maverick, some that came through Top Gun, and it's all laid out, but give you examples.

[00:10:59] Speaker 04:
I mean, the very fact of the school, the discipline that they engage, the pace of having high intensity flying and then

[00:11:12] Speaker 04:
times when they party hard.

[00:11:15] Speaker 04:
The tension between trying to be the best and trying to compete against your colleagues and having them be sort of competitors, but also being a team.

[00:11:29] Speaker 04:
That is a theme.

[00:11:32] Speaker 04:
The idea that you're flying, you're flying through, and this is mentioned in the article and not in Top Gun, flying low to the ground between mountains and valleys, that appears in only Top Gun maverick as it does not appear in the dangers of it and how

[00:11:53] Speaker 04:
exciting it is, pulling G's discussed very substantially in the article.

[00:12:00] Speaker 04:
In fact, the author actually goes in and pulls some G's himself.

[00:12:05] Speaker 04:
Not very much talked about in the movie, but in Top Gun Maverick, one of the aviators, one of the pilots actually passes out from the G's, which is mentioned in the article, and is almost crashed, almost crashes to the ground,

[00:12:23] Speaker 04:
because he loses consciousness.

[00:12:25] Speaker 02:
Can I ask you a question about the level of generality at which we're supposed to evaluate the similarities?

[00:12:31] Speaker 02:
So just to take one example from your brief, the article describes the community of pilots who are training at Top Gun as like King Arthur's round table, the gathering of the greatest of the greats in fighter aviation.

[00:12:46] Speaker 02:
So that's clearly a creative, original, very evocative phrase.

[00:12:51] Speaker 02:
That's protected.

[00:12:52] Speaker 02:
That's not in the movie at all.

[00:12:54] Speaker 02:
And so in your brief, you say, and I think this sort of parallels what the brief does on a lot of other points.

[00:13:00] Speaker 02:
So you say, well, OK, but what that phrase evokes is the idea that these are sort of an elite of aviation.

[00:13:09] Speaker 02:
And the movie depicts them as an elite in aviation.

[00:13:11] Speaker 02:
And so that's a similarity.

[00:13:13] Speaker 02:
And that is a similarity, but it's a similarity, like, at a level of abstraction where, like,

[00:13:20] Speaker 02:
It's just a fact that the Navy Fighter Weapons School represents the elite of aviation.

[00:13:24] Speaker 02:
So it seems like what is original and protected is not similar.

[00:13:32] Speaker 02:
And a lot of the similarities are of things that are so abstracted as not to be protected.

[00:13:36] Speaker 02:
So what's your response to that?

[00:13:42] Speaker 04:
First of all, you can't exclude all facts in a situation like this where the story is based on facts and then becomes a drama.

[00:13:54] Speaker 04:
The facts are sort of inherited.

[00:13:57] Speaker 04:
It's the way you describe the facts.

[00:13:59] Speaker 04:
You don't describe them as, you can say they're a bunch of aviators, but portrays them as knights of the King Arthur's table.

[00:14:10] Speaker 04:
That is a view, that's a description of the way, the fact that that is not reality.

[00:14:14] Speaker 04:
That is a description.

[00:14:19] Speaker 04:
You know, we are now living in, this movie was released in 2022, and our notions of what is a trope or what is a standard affair is shaped by the intervening 36 years.

[00:14:33] Speaker 04:
If you go back to 1986,

[00:14:37] Speaker 04:
the kind of thing that you're talking about, Judge Maher, was not widely known.

[00:14:42] Speaker 04:
And our expert talks about that, says this opened up and changed the article and the movie, changed our perception

[00:14:53] Speaker 04:
of how things operate.

[00:14:55] Speaker 04:
Nobody knew about these schools, nobody knew about these aviators, nobody, I mean, the military knew, but the public didn't know.

[00:15:03] Speaker 04:
And the very success, the blockbuster success of the film was a

[00:15:12] Speaker 04:
changed the trope.

[00:15:16] Speaker 04:
And we have a case law that says the case involving the Pirates of the Caribbean said you can't look.

[00:15:25] Speaker 04:
The Pirates of the Caribbean was made 20 years earlier.

[00:15:28] Speaker 04:
You have to look 20 years earlier because our perception of how pirates operate and

[00:15:34] Speaker 04:
that whole Caribbean situation is shaped by the movie itself.

[00:15:39] Speaker 04:
I do want to, I know I'm short on time, but I do want to mention the other document.

[00:15:45] Speaker 02:
You're actually over your time, but we will give you a couple of minutes for rebuttal.

[00:15:51] Speaker 03:
Well, I want to just identify the other one in the records.

[00:15:55] Speaker 04:
Well, I want to talk about the Scripter Award because

[00:16:00] Speaker 04:
Just during this litigation, USC, with the help of Paramount, there was some input from Paramount, nominated the film for a script award, which is an award given only for works from another medium, specifically a magazine article or a book.

[00:16:26] Speaker 04:
They sent this to Paramount.

[00:16:32] Speaker 04:
They sent it to a fellow by the name of Russell Nelson who sent it to everybody under the sun.

[00:16:39] Speaker 04:
Dozens, scores of people at Paramount and nobody objected and they... Are you making an estoppel argument based on

[00:16:53] Speaker 02:
Are you making an estoppel argument based on?

[00:16:56] Speaker 04:
Estoppel are you saying that there are stopped from denying similarity?

[00:17:07] Speaker 04:
This was the nomination was for Top Gun Maverick based on characters for the 1983 California magazine article Top Guns he sends it out and then he gets back and

[00:17:21] Speaker 04:
He gets back emails saying, this is really good.

[00:17:26] Speaker 04:
And then this is from Jerry Brockheimer, Joseph Kosinski got it.

[00:17:32] Speaker 04:
And then somebody else says, yes, spoke to Jerry, he's good.

[00:17:37] Speaker 04:
We will argue, we believe a trial, and this is admissible, is an adoptive admission that admitted that in fact the characters in the movie are based on Younay's article.

[00:17:53] Speaker 04:
And that's all we need because substantial similarity, if you take the characters, if you take all the characters in Harry Potter and put them in France and put them in different school, you've taken everything.

[00:18:07] Speaker 04:
So just taking the characters alone is enough substantial similarity to support a jury verdict and therefore gets us way past the... Could you give me the ER site for that?

[00:18:19] Speaker 04:
I'm sorry?

[00:18:20] Speaker 03:
Give me the ER site for that document.

[00:18:22] Speaker 03:
Is the document the ER site for?

[00:18:25] Speaker 04:
Oh yes, the email that I mentioned is 2ER270.

[00:18:35] Speaker 04:
Thank you.

[00:18:36] Speaker 04:
So the outgoing email that shows the list of recipients is 2ER67.

[00:18:45] Speaker 04:
And then the document with the replies from Mark Weinstock.

[00:18:52] Speaker 04:
This is really a good sign.

[00:18:54] Speaker 04:
And then David Wallman spoke to Jerry.

[00:18:57] Speaker 04:
He's good.

[00:18:58] Speaker 04:
Bafta tomorrow.

[00:19:00] Speaker 04:
Nobody objected.

[00:19:01] Speaker 04:
Tons of people were said.

[00:19:03] Speaker 04:
Nobody objected.

[00:19:04] Speaker 04:
Now, eventually, they caught on that this would interfere with their case, and they withdrew the nomination.

[00:19:12] Speaker 04:
But the damage was done.

[00:19:14] Speaker 02:
Thank you.

[00:19:14] Speaker 02:
You're well past your time, but we will give you two minutes for rebuttal.

[00:19:19] Speaker 04:
Thank you.

[00:19:36] Speaker 02:
Ms.

[00:19:36] Speaker 02:
Lenz.

[00:19:37] Speaker 00:
Good morning.

[00:19:38] Speaker 00:
May it please the court, Molly Lenz, on behalf of Paramount Pictures

[00:19:42] Speaker 00:
I'd like to start by quickly addressing the USC Scripter's Award, which is where counsel ended.

[00:19:50] Speaker 00:
With respect, if the court were to look at the actual record, it portrays a very different story than that just represented.

[00:19:57] Speaker 00:
USC reaches out to Paramount, asks Paramount if they wish to submit the film for consideration.

[00:20:05] Speaker 00:
Paramount says, yes, of course we'd like to submit it, provides the actual credits to the movie with the characters attributed

[00:20:13] Speaker 00:
to the screenwriters from the first film.

[00:20:16] Speaker 00:
Article not mentioned.

[00:20:18] Speaker 00:
USC, for reasons unknown that are not in the record, decides to attribute the characters to the article.

[00:20:24] Speaker 00:
That is a mistake by USC.

[00:20:28] Speaker 00:
That cannot be attributable to Paramount and certainly cannot change whether the works satisfy the extrinsic test.

[00:20:38] Speaker 00:
So there is a copy and paste error by Mr. Nelson, which the plaintiffs are trying to capitalize on.

[00:20:44] Speaker 00:
Mr. Nelson did submit a declaration in the record before the district court.

[00:20:51] Speaker 00:
Good point, Your Honors, to that declaration.

[00:20:54] Speaker 00:
But the record is clear that it is just that, a mistake by USC, and nothing more.

[00:20:59] Speaker 00:
And again, the focus of the extrinsic test is the actual works, not what USC erroneously may have attributed.

[00:21:05] Speaker 03:
If the plaintiff's expert had not been excluded, would summary judgment have been appropriate?

[00:21:12] Speaker 03:
Yes.

[00:21:14] Speaker 03:
I understand the judge didn't say that.

[00:21:17] Speaker 03:
The judge just excluded the expert and therefore said you don't have any expert evidence on the extrinsic test.

[00:21:23] Speaker 03:
But let's assume that the report was admitted.

[00:21:27] Speaker 03:
Why wouldn't that create a package?

[00:21:29] Speaker 00:
Because dueling experts, by definition, don't create an issue of fact.

[00:21:35] Speaker 03:
We've got lots of case law that says one way to figure out whether there's an issue of fact on the extrinsic test is to get expert testimony about substantial similarity.

[00:21:46] Speaker 03:
And they proffered expert testimony.

[00:21:50] Speaker 03:
Had it been admitted, why wouldn't that have been enough to get them to a jury?

[00:21:54] Speaker 00:
Well, so a couple points, your honor.

[00:21:57] Speaker 00:
I don't think that this court has ever said that expert testimony is required to get passed.

[00:22:01] Speaker 03:
No, I understand.

[00:22:02] Speaker 03:
We haven't said that, but we've said it's a useful tool.

[00:22:07] Speaker 03:
It's a fact to be considered.

[00:22:09] Speaker 03:
They have an expert, his qualifications are not being attacked, who says these two things, the article and the maverick movie, not Top Gun.

[00:22:21] Speaker 03:
are substantially similar.

[00:22:23] Speaker 03:
The judge excludes the expert because he doesn't think he's got reliable methodology.

[00:22:30] Speaker 03:
I'm asking you to assume that the judge erred in excluding him.

[00:22:34] Speaker 03:
In that case, why wouldn't this case go to the jury?

[00:22:38] Speaker 00:
Because the expert's testimony doesn't change the ultimate nature of the works, Your Honor.

[00:22:43] Speaker 00:
So the court has said that expert testimony may be useful in particular cases.

[00:22:49] Speaker 00:
Again, just to reiterate,

[00:22:50] Speaker 00:
The court has never said that experts are required.

[00:22:53] Speaker 00:
This court has also repeatedly held that the summary judgment standard on substantial similarity is exactly as Rule 56 says.

[00:23:02] Speaker 00:
It's not a different standard.

[00:23:03] Speaker 00:
The plaintiff here bears a burden to show a material issue of fact with respect to substantial similarity.

[00:23:10] Speaker 00:
The plaintiffs also bear the burden to the extent that they contend that they required expert testimony.

[00:23:16] Speaker 00:
It was their burden to put forward an admissible expert.

[00:23:20] Speaker 00:
This court reviews the district court's decision to exclude the proffered expert under an abuse of discretion standard.

[00:23:28] Speaker 00:
Rule 702, as well as the Daubert case, repeatedly affirm that it is the plaintiff's burden to satisfy that the expert that they put forward.

[00:23:37] Speaker 03:
And I think you're missing my question, and this is why it's probably not phrased well enough.

[00:23:43] Speaker 03:
I understand that the decision about whether or not to admit an expert

[00:23:47] Speaker 03:
declaration or expert testimony is a discretionary decision under Rule 702.

[00:23:52] Speaker 03:
I'm asking you to assume that the judge erred in excluding this expert.

[00:23:58] Speaker 03:
Now, if we look at his declaration, don't we review de novo, whether it creates an issue of fact, not under a more deferential standard?

[00:24:09] Speaker 00:
You do.

[00:24:10] Speaker 00:
However, so I will address the actual substance of Mr. Bean's report in a second.

[00:24:15] Speaker 00:
I will say that there is ample precedent by this circuit with respect to disregarding even experts that were not excluded at the summary judgment stage with respect to substantial similarity.

[00:24:28] Speaker 00:
The Fox v. Rice decision, this court affirmed summary judgment

[00:24:33] Speaker 00:
Upholding the decision by the district court to disregard the expert reports when the court engaged in its own I want you to spend a lot of time telling us things we already understand I'm still trying to figure out why this declaration if Accepted doesn't create an issue of fact because mr. Bean opining that things like the bell create issues of substantial similarity does not make that make that the case and

[00:24:59] Speaker 00:
this court is required, just like the district court was, to consider the works actually before it.

[00:25:06] Speaker 00:
The fact that Mr. Bean opines that the fact that historically it might have been the case that the Wolfpack Squadron acquired a bell while on an overseas tour and decided to hang it in a bar when they got back, first of all, that's a fact that needs to be filtered out, regardless of whether Mr. Bean did it.

[00:25:24] Speaker 00:
But two, the fact that Mr. Bean says, quote unquote, it's the same bell,

[00:25:28] Speaker 00:
in both the article as well as Top Gun Maverick doesn't make it the same bell.

[00:25:32] Speaker 00:
We know it's a fact that needs to be filtered out.

[00:25:35] Speaker 00:
Even ignoring that, the bells are used in entirely different ways in the two works.

[00:25:41] Speaker 00:
In Top Gun Maverick, we have a bell that's already been hung in an established bar.

[00:25:46] Speaker 00:
It is used repeatedly to invoke the rules of the bar with respect to Pete Mitchell

[00:25:54] Speaker 00:
Captain Pete Mitchell Maverick putting his cell phone on the bar just because Mr. Beano pines that they're the same doesn't mean that that's a fact that this court has to accept.

[00:26:05] Speaker 00:
Otherwise the rule would be different for cases involving substantial similarity on summary judgment and it can't be that

[00:26:14] Speaker 00:
Motions to dismiss can't get decided because the court decides that experts may be helpful.

[00:26:20] Speaker 00:
The plaintiffs are then given an opportunity to proffer a helpful and reliable expert.

[00:26:25] Speaker 00:
And then simply, if they come up with any expert who's been willing to parrot their views, that the court has to accept that as true, and then it creates a fact.

[00:26:34] Speaker 03:
So your position is that the substance of his declaration was insufficient to create a fact issue.

[00:26:41] Speaker 00:
Absolutely, Your Honor.

[00:26:44] Speaker 03:
Okay.

[00:26:45] Speaker 03:
But it's, it's my difficulty with that.

[00:26:49] Speaker 03:
I'm not sure it's a, it's a terrible one is that the district court never addressed the substance of his, of his declaration.

[00:26:56] Speaker 03:
The district court just simply said, this is not a qualified report.

[00:27:00] Speaker 03:
So you think we, is that something we should address in the first instance?

[00:27:04] Speaker 00:
I think that's a, with all due respect, I think that's a little bit unfair to the district court.

[00:27:08] Speaker 00:
The district court says,

[00:27:10] Speaker 00:
Three things with respect to Mr. Bean's report.

[00:27:13] Speaker 00:
One, he says that he failed to filter facts, and therefore the report is essentially infected with that infirmity.

[00:27:20] Speaker 00:
And the court can take just a cursory view with respect to Mr. Bean's report and know that that's the case.

[00:27:25] Speaker 00:
Mr. Bean actually says that's the case on the very first page of his report, where he says that he was, quote unquote, trying to find any similarities with respect to the works.

[00:27:35] Speaker 00:
That infirmity infects the entire report, makes it not only unreliable but also unhelpful to the court, whose task, as we know under this court's precedent, is to first filter the unprotectable elements in it.

[00:27:48] Speaker 00:
Second, the district court finds

[00:27:50] Speaker 00:
that Mr. Bean also approached his analysis through the entirely wrong lens.

[00:27:56] Speaker 00:
He reviews the report for how it makes him feel, what the work evokes in him.

[00:28:03] Speaker 00:
So for example, he concedes under, when he's examining purported similarities of dialogue, Mr. Bean says, well, it might be true that the dialogue, to the extent that the article actually has any dialogue, which are of course quotes from real people, leaving that aside, Mr. Bean says, admits.

[00:28:20] Speaker 00:
No similarity, no actual overlapping dialogue between the two works.

[00:28:26] Speaker 00:
Nevertheless, he says, well, it evokes the same feeling and creates the same world as that in the article, as in Top Gun Maverick.

[00:28:35] Speaker 00:
That's not the extrinsic test.

[00:28:37] Speaker 00:
That's not the analysis before the court.

[00:28:39] Speaker 00:
So the district court looks at those two problems, which infect the entire report, and concludes under Rule 702,

[00:28:46] Speaker 00:
that those two things led to lots of errors and make it inadmissible under 702.

[00:28:52] Speaker 00:
I think the reason that Mr. Bean's trying to find, quote unquote, any similarities between the works, and two, he's approaching it from how does it make him feel, which is of course the intrinsic test, which is exclusively the province for the jury, means that Mr. Bean identifies entirely fabricated similarities between the two works.

[00:29:11] Speaker 00:
In addition, it's not helpful because Mr. Bean doesn't even bother to provide the court

[00:29:16] Speaker 00:
with a single page citation to the article, much less any timestamps as another infirmity to go back to your question originally about why are we talking about Top Gun Maverick.

[00:29:29] Speaker 00:
The majority of Mr. Bean's report is talking, excuse me, why are we talking about the 1986 film?

[00:29:35] Speaker 00:
Mr. Bean spends most of his report talking about the similarities between the 1986 film

[00:29:41] Speaker 00:
and the article, but we know that there's no claim of infringement between the 1986 film and the article.

[00:29:48] Speaker 00:
The only analysis before the court is properly whether Top Gun Maverick infringes the copyright of the article.

[00:29:55] Speaker 00:
And to answer your question, the fact that there is an interim derivative work doesn't change this court's analysis.

[00:30:03] Speaker 00:
The Copyright Act itself answers that question.

[00:30:06] Speaker 00:
Section 103B of the Copyright Act provides that the copyright in a derivative work, here being the 1986 film, quote, does not affect or enlarge the scope of the copyright protection in the pre-existing material.

[00:30:20] Speaker 00:
We are examining whether the article infringes, excuse me, whether Top Gun Maverick infringes the copyright in the article without regard to the 1986 film.

[00:30:33] Speaker 00:
And of course, the 1986 film

[00:30:36] Speaker 00:
And Top Gun Maverick, yes, Maverick is a sequel.

[00:30:40] Speaker 00:
It picks up 30 years later, continues the career of the character Maverick as the title suggests.

[00:30:49] Speaker 00:
The fact that Maverick is a derivative work of Top Gun 1986 doesn't mean that it's a derivative work of the article.

[00:30:58] Speaker 01:
Council I have a question so my understanding is that the facts and ideas are not protected but then when looking for similarities we can look at similarities in themes mood setting pace I'm trying to understand what the difference is between the ideas and the themes where would we draw a line between ideas you know

[00:31:28] Speaker 01:
making a movie about top gun pilots versus the themes of the movie, which may be something that we could consider?

[00:31:37] Speaker 00:
So we know that ideas are not protected.

[00:31:40] Speaker 00:
And so themes, there's certainly also where the level of abstraction, I think, is an interesting, potentially an interesting question with respect to certain works, but not one that the court needs to wade into here.

[00:31:54] Speaker 00:
I mean, fundamentally, these are

[00:31:57] Speaker 00:
the themes and the ideas of these.

[00:32:01] Speaker 00:
So even take the ideas, right?

[00:32:03] Speaker 00:
The article itself is a nonfiction article which focuses on the training program that Top Gun pilots go through and uses that as a launching point to discuss things like the reasons why Top Gun was created, certain features about the planes, and I would like to go back to the discussion of the F-14 if I have time.

[00:32:25] Speaker 00:
Top Gun Maverick itself doesn't even share the idea, much less the themes, beyond the school itself.

[00:32:33] Speaker 00:
And the school, quote unquote, in Top Gun Maverick has Top Gun graduates.

[00:32:39] Speaker 01:
If I understand you correctly, you're saying that there's no similarity in themes between Maverick and the article.

[00:32:47] Speaker 01:
Correct.

[00:32:47] Speaker 01:
But I guess I'm still fuzzy on what we're calling, what's the definition of a theme versus an idea?

[00:32:54] Speaker 00:
Well, I think a theme is sort of the lesson, if you will, the takeaway from the work.

[00:33:01] Speaker 01:
And so the themes that... Can you give me an example of a theme of the article and a theme of the movie?

[00:33:06] Speaker 00:
Yes.

[00:33:07] Speaker 00:
So the plaintiff argues that the themes of the article are the aviation caste system, the anachronism of fighter aviation, and post-war nostalgia that yearns for a simpler America.

[00:33:22] Speaker 00:
I don't think those are actually themes of the article, but even if we were to accept that as true, Maverick's themes, which is not disputed, are themes of guilt, reconciliation, and redemption.

[00:33:35] Speaker 00:
So we see the character of Maverick.

[00:33:37] Speaker 00:
Wright who's got a stalled 30-year career due to insubordination and a strange relationship with the Rooster character.

[00:33:46] Speaker 00:
He repairs his relationship with Penny and by the end of the movie he has redeemed himself not only in the eyes of the military which distrusted him, he's repaired his relationship with Rooster and he's also repaired his relationship with Penny.

[00:34:03] Speaker 00:
None of those themes are present

[00:34:05] Speaker 00:
So I would say ideas are more like let's do a movie, let's create a work about Top Gun as opposed to thematic or sort of message.

[00:34:14] Speaker 03:
I have the same difficulty Judge Sung was expressing at least, which is that I'm not sure how we define a theme.

[00:34:23] Speaker 03:
The case law doesn't tell us how to define a theme.

[00:34:25] Speaker 03:
We can define arrangement because we can look at where they are in the work.

[00:34:29] Speaker 03:
But it seems to be a lot of here what we're doing is saying is theme is what we call the theme.

[00:34:36] Speaker 03:
In retrospect, I'll back and look at the first one and say the first one's theme is X and the second one's theme is Y. And I'm trying to figure out how as judges we're supposed to figure out what a theme is.

[00:34:50] Speaker 00:
Well, I don't know that this is the case you need to decide it in, because again, even if you accepted Mr. Bean's report, the themes that he identifies, one, are not actually themes.

[00:35:00] Speaker 00:
I don't think a theme can be found in a solitary sentence in an article, for example, which is what he tries to do.

[00:35:05] Speaker 00:
He tries to find, like, he says this is a paragraph in this.

[00:35:09] Speaker 00:
That's a theme.

[00:35:10] Speaker 00:
That's by definition.

[00:35:11] Speaker 00:
We all know what a theme is.

[00:35:12] Speaker 00:
like a stray sentence here or there is not a theme.

[00:35:15] Speaker 00:
And again, in any event, what he points out as purported themes in the article are just manifestly not themes.

[00:35:22] Speaker 02:
One theme he identified that I think you haven't mentioned is they both follow the recurring theme of the redemption of a hero who is thwarted by his limitations but finally overcomes them and triumphs.

[00:35:33] Speaker 02:
Do you think that's protectable as a theme?

[00:35:38] Speaker 00:
No, I don't think that.

[00:35:39] Speaker 00:
I think that's too abstract and too general.

[00:35:41] Speaker 00:
Nobody can own that.

[00:35:42] Speaker 00:
I should be able to create stories about a hero who overcomes a challenge, not to mention you have to look, and the case law tells us this, like the Binet decision, you have to look at how the works convey and explore those themes.

[00:35:57] Speaker 00:
You don't just hunt and peck to try to find things that you think are similar.

[00:36:00] Speaker 00:
Again, we're really stretching things to try to argue that the article has a theme of overcoming an obstacle.

[00:36:07] Speaker 00:
All we're told is that the yogi and possum fail one of their simulated exercises, quote unquote shrug and go out for a beer, and then later, you know, graduate successfully from the program.

[00:36:20] Speaker 00:
That is not overcoming an obstacle, but certainly Yone, and I don't think we even hear the plaintiffs in this case to argue otherwise can't own that general abstract idea.

[00:36:31] Speaker 02:
Can I ask you one very brief question about the contract claim?

[00:36:37] Speaker 02:
I'm having a little trouble understanding how you read the relationship between produced by it here under

[00:36:45] Speaker 02:
and substantially based upon or adapted from in a way that doesn't make the first part of that redundant.

[00:36:52] Speaker 02:
So can you explain that?

[00:36:54] Speaker 00:
They may be redundant in terms of the application here in the sense that certainly we do agree, we do argue that the fact that we didn't need any of the rights to the article to make Top Gun Maverick means that they can't satisfy either of the two conditions.

[00:37:09] Speaker 00:
However, that doesn't mean that they're redundant in all circumstances.

[00:37:13] Speaker 00:
And let me give you an example.

[00:37:15] Speaker 00:
So it may be that the second criteria is substantially based upon the substantially same ideas, et cetera, as the article.

[00:37:26] Speaker 00:
It may be that we created Top Gun Maverick, which I think we can respectfully submit is not substantially based upon the article.

[00:37:35] Speaker 00:
However, we may have used some of the protected expression from the article.

[00:37:40] Speaker 00:
So if we, for example, used as narration some of the actual prose from Yone in Top Gun Maverick, that could be based upon the article in the sense that we, quote-unquote, bodily appropriated some of the creative expression per the Norell decision.

[00:37:58] Speaker 00:
However, it still wouldn't be substantially based upon because we created an entirely new work that's not based on it.

[00:38:07] Speaker 00:
Paragraph 8, which I would respectfully submit, renders actually the discussion about what does paragraph 7 mean, moot and unnecessary in its entirety.

[00:38:17] Speaker 00:
With paragraph 8, as I'm sure the court is aware, the parties confirm that nothing, and that is the language, it's an express override.

[00:38:26] Speaker 00:
Paragraph 8 overrides everything else in the agreement, that nothing in the, quote, nothing contained in the agreement

[00:38:33] Speaker 00:
and shall be construed to be or operate in derogation of any rights that Paramount may be entitled to as a member of the public.

[00:38:40] Speaker 00:
So we thus ask the question, as a member of the public, could Paramount have made Top Gun Maverick without any rights to the article?

[00:38:48] Speaker 00:
And the answer to that is, indisputably, yes.

[00:38:51] Speaker 03:
I'd read this phrase differently, and so now I'm interested in your answer.

[00:38:57] Speaker 03:
The phrase appears in the license.

[00:39:00] Speaker 03:
Which phrase?

[00:39:01] Speaker 03:
The phrase paragraph seven appears in the license produced.

[00:39:06] Speaker 03:
Yes.

[00:39:06] Speaker 03:
Right.

[00:39:06] Speaker 03:
So let's assume that you didn't produce it under the license, but it was substantially based upon or adapted from the work.

[00:39:16] Speaker 03:
This phrase would apply, would it not?

[00:39:20] Speaker 03:
You would have to give credit.

[00:39:21] Speaker 00:
In that instance, yes.

[00:39:23] Speaker 03:
If there was an infringement of the copyright, even though you didn't produce it under the license.

[00:39:29] Speaker 03:
So I'd read the second phrase as paralleling the copyright test.

[00:39:38] Speaker 03:
If the second work is substantially based upon or adapted from the protected work, which is the article here,

[00:39:46] Speaker 03:
then you have obligations.

[00:39:48] Speaker 03:
You also have obligations if you produce it under the license, but those seem to me to be two separate parts, two separate obligations.

[00:39:56] Speaker 00:
And I agree with you, Your Honor.

[00:39:57] Speaker 03:
Okay, I thought you were saying something different.

[00:39:58] Speaker 00:
Yes, and so I think that in, and I apologize if I was not clear, but what I was trying to say is that the fact that we didn't infringe the copyright could mean

[00:40:08] Speaker 00:
And does mean that both the first and the second prongs fail.

[00:40:11] Speaker 00:
But it's not necessarily the case, because there are other examples, like the one I gave, where you could satisfy one but not the other, and therefore still not have to give credit.

[00:40:19] Speaker 03:
So that gets back to the first question Judge Miller asked, I think, which is, do you need both?

[00:40:24] Speaker 03:
You've got the word and in there.

[00:40:26] Speaker 03:
And it seems to me you're really interpreting it as a word.

[00:40:30] Speaker 00:
I'm interpreting it as and.

[00:40:31] Speaker 03:
So you must, see the difficulty with that is of course that when they say we're not producing it under this license that you gave us, we're producing it, you know, we're not, we're doing it independently and you can sue us for copyright infringement if you want.

[00:40:46] Speaker 03:
You're never going to satisfy the first part in a copyright infringement case, are you?

[00:40:50] Speaker 00:
I don't think it looks at the, the first prong doesn't look at our subjective view as to whether we're producing it under the license, but whether we're using the rights that, whether the court would find that we're using any of the rights.

[00:41:00] Speaker 03:
But you plainly weren't producing it under the license because you had no license to produce maverick.

[00:41:07] Speaker 00:
And thus the cop, unless the credit claim fails, Your Honor, absolutely.

[00:41:11] Speaker 03:
So you really, you really are making the first part redundant.

[00:41:15] Speaker 00:
I don't know.

[00:41:16] Speaker 00:
I don't agree.

[00:41:17] Speaker 00:
I think in this instance, the fact that we didn't use any of the rights renders means that they can't satisfy either.

[00:41:24] Speaker 00:
But and means and, to be clear.

[00:41:26] Speaker 00:
And again, the fact that we can come up with certain scenarios where the same set of facts means that both prongs fail doesn't mean that they're not two.

[00:41:36] Speaker 00:
Doesn't mean that it's not two.

[00:41:37] Speaker 00:
And again, we still have paragraph eight, which instructs, ultimately,

[00:41:42] Speaker 00:
Again, the override, nothing contained in the agreement.

[00:41:45] Speaker 00:
The analysis is whether a member of the public could create top gun maverick without the rights to the article.

[00:41:55] Speaker 00:
And the answer to that question is yes.

[00:41:57] Speaker 00:
So for all, I will, I'm over my time.

[00:42:01] Speaker 00:
So I respectfully request that the district court's decision be affirmed.

[00:42:06] Speaker 02:
Thank you.

[00:42:14] Speaker 04:
On the contract, it's just totally absurd.

[00:42:21] Speaker 04:
The contract runs for 10 pages, and then it says, by the way, we're not giving up any rights that the public otherwise has.

[00:42:32] Speaker 04:
Obviously that means

[00:42:35] Speaker 04:
rights that are not otherwise specified in the contract.

[00:42:38] Speaker 04:
Otherwise, they don't have to pay him the $20,000.

[00:42:42] Speaker 04:
He doesn't have to live up to his guarantees.

[00:42:45] Speaker 04:
None of the other stuff that happens in the contract matters because you've got this clause at the end saying it doesn't matter.

[00:42:52] Speaker 03:
I'm inclined to think that the clause at the end isn't particularly important in interpreting paragraph 7.

[00:42:58] Speaker 03:
I'm still having trouble interpreting paragraph 7, and I'm still having difficulty understanding your argument about 7.

[00:43:04] Speaker 04:
Paragraph 7 is easy.

[00:43:08] Speaker 04:
They still have the copyright worldwide.

[00:43:12] Speaker 03:
Assume there's no copyright infringement in this case.

[00:43:15] Speaker 03:
Are you entitled to any rights under paragraph 7?

[00:43:18] Speaker 04:
Of course.

[00:43:18] Speaker 03:
Why?

[00:43:19] Speaker 04:
Because we have contact rights.

[00:43:21] Speaker 04:
We have contract rights, we gave them warranties, we provided exclusivity, so Mr. Yonay couldn't go sell the film to... I'm sorry, any rights that are triggered by the publication, if you will, of Maverick?

[00:43:40] Speaker 03:
Let's assume no copyright infringement by Maverick on the article.

[00:43:44] Speaker 03:
Are you claiming that you still have some right under paragraph 7 because of the publication of Maverick to credits or something?

[00:43:52] Speaker 04:
I think the right in question has to be applicable to publication of Maverick because it's something that gets tacked onto the movie.

[00:44:02] Speaker 04:
If the movie does not get produced, there's nothing to give film credits for.

[00:44:07] Speaker 04:
But the contract is a contract.

[00:44:10] Speaker 04:
And they say, if they create a movie, they have to give him credit.

[00:44:14] Speaker 04:
And, you know, the district court said, oh, well, it becomes nullity because the license, they've revoked the license.

[00:44:25] Speaker 04:
But the license revocation only goes to, only goes to U.S.

[00:44:31] Speaker 04:
copyright.

[00:44:32] Speaker 04:
It does not go to the worldwide copyright.

[00:44:34] Speaker 04:
They've distributed it moving all over the world.

[00:44:36] Speaker 04:
So the contract remains in full force except for this revocation.

[00:44:43] Speaker 02:
Do you have a sense of the value of the contract claim?

[00:44:47] Speaker 02:
I assume it's fairly small relative to the copyright claim.

[00:44:51] Speaker 04:
They spent $175 million on this movie and they made a billion dollars on it.

[00:44:59] Speaker 04:
It's just incredibly chintzy of paramount to instead of

[00:45:08] Speaker 04:
do what Congress said, which is to have a fair license negotiated during the exclusivity period.

[00:45:17] Speaker 04:
They spend money on armies of expensive lawyers.

[00:45:20] Speaker 04:
They spend millions of dollars for enough.

[00:45:22] Speaker 02:
Only two, aren't there?

[00:45:24] Speaker 04:
Well, you don't know what's behind them.

[00:45:26] Speaker 04:
We've seen the paperwork, and yes, we're talking about a lot of money.

[00:45:33] Speaker 02:
So I guess the question was the relative value of the two claims in the

[00:45:38] Speaker 02:
the relative value of the two claims, the copyright claim and the, I mean, I was just curious.

[00:45:45] Speaker 04:
the copyright claim vis-a-vis the contract claim, but... Yeah, obviously the copyright claim is more expensive, but clearly also it's a drop in the bucket.

[00:45:57] Speaker 04:
And the honorable thing for Paramount to do would have been to negotiate just as Congress intended, just as Congress meant for copyright owners to retrieve some value for a work that has risen in value supernominally.

[00:46:14] Speaker 04:
On the expert report, you have to reverse because there is no filtering for selection and arrangement.

[00:46:27] Speaker 04:
We have a selection and arrangement theory.

[00:46:31] Speaker 04:
expert articulated it.

[00:46:37] Speaker 04:
We've provided evidence for it.

[00:46:39] Speaker 04:
The district court says nothing at all.

[00:46:41] Speaker 04:
He says filtration.

[00:46:42] Speaker 04:
He didn't filter anything.

[00:46:44] Speaker 04:
We think he did filter.

[00:46:45] Speaker 04:
I think if you look at it, he did filter as best he could given that he's talking about

[00:46:51] Speaker 04:
articulations about things of facts, and you said in Haragami and other cases that sometimes you can't do the filtration just the same way, but he did filter.

[00:47:04] Speaker 04:
And I should point out that Alice is somebody who actually works in industry, our expert

[00:47:10] Speaker 04:
has written films, have written stories for television, has a career in being a Hollywood insider.

[00:47:20] Speaker 04:
As far as I know, he's never done an export report.

[00:47:23] Speaker 04:
He didn't charge for this.

[00:47:25] Speaker 04:
He volunteered because he thinks the injustice, well, I don't want to put thoughts in his mind, but because he was offended by what Paramount did here.

[00:47:36] Speaker 04:
And this is going to destroy an industry.

[00:47:38] Speaker 04:
This is going to destroy an industry if this is the law in the Ninth Circuit.

[00:47:44] Speaker 04:
Movies and shows.

[00:47:46] Speaker 02:
If you could wrap up, you are over your time, so if you could.

[00:47:49] Speaker 04:
Movies and shows that are

[00:47:54] Speaker 04:
based on facts are something for which the public has an appetite.

[00:48:00] Speaker 04:
And if you say everything does no copyright because it's all based on facts, that industry will, I recommend, this might be my last word, thank you.

[00:48:16] Speaker 04:
I highly commend the amicus brief by the National Association

[00:48:24] Speaker 04:
We did not solicit the brief.

[00:48:34] Speaker 04:
I had no idea it was coming.

[00:48:35] Speaker 04:
We had no involvement in it.

[00:48:37] Speaker 04:
But if you want to understand the effect this case, if this character firms, this case will have on the industry, please, please read that brief.

[00:48:49] Speaker 02:
Thank you very much.

[00:48:50] Speaker 02:
Thank both counsel.

[00:48:51] Speaker 02:
The case is submitted and we are adjourned.

[00:49:00] Speaker 01:
This court for this session stands adjourned.