Petition for Writ of Certiorari — Steve K. Wilson Briggs, Petitioner v. Sony Pictures Entertainment, Inc., et al.

Supreme Court briefJun 30, 2018

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APPENDIX TABLE

APPENDIX

Appendix A

Opinion (Memorandum) of the Court of Appeals (February 28, 2018).....................la

Appendix B

Order of the District Court (October 3, 2014)....................................................4a

Appendix C

Judgment of the District Court (October 3, 2014)............................................52a

Appendix D

Order Denying Petition for Rehearing En Bane (April 6, 2018)..............................53a

Appendix E

L.A. Printex Indus. Inc. v Aeropostale, Inc.,

102 U.S.P.Q.2nd (BNA)(9th Cir 2012) Order......................................54a

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NOT FOR PUBLICATION

STEVE K. WILSON BRIGGS, Plaintiff-Appellant,

LIPP

SONY PICTURES ENTERTAINMENT, INC.; TRISTAB PICTURES,

INC.; MEDIA RIGHTS CAPITAL; QED INTERNATIONAL;

NEILL BLOMKAMP, Defendants -Appellees.

No. 14-17175

D.C. No. 4:13-cv-04679-PJH

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, Chief Judge, Presiding

[FILED MAR 1 2018]

Submitted February 28, 2018

Before: Thomas, Chief Judge, Trott and Silverman, Circuit Judges.

This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes that this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

Steve K. Wilson Briggs appeals pro se from the district court's

summary judgment in his copyright action. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo, Cavalier v. Random

House, Inc., 297 F.3d 815, 822 (9th Cir. 2002), and we affirm.

The district court properly granted summary judgment on

Briggs's copyright infringement claim because Briggs failed to raise

a genuine dispute of material fact as to whether defendants

accessed his screenplay Butterfly Driver, or whether Briggs's

screenplay and defendants' film Elysium are either strikingly or

substantially similar. See L.A. Printex Indus., Inc. v. Aeropostale,

Inc., 676 F.3d 841, 846 (9th Cir. 2012) (setting forth ways a plaintiff

may prove access); Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.

1987) ("Absent evidence of access, a 'striking similarity' between the

works may give rise to a permissible inference of copying."); see also

Benay v. Warner Bros. Entm't, Inc., 607 F.3d 620, 624-25 (9th Cir.

2010) (setting forth the extrinsic test to assess substantial

similarity between specific expressive elements of copyrighted

works at issue, such as plot, sequence of events, theme, dialogue,

mood, setting, pace, and characters).

We reject Briggs's unsupported contention that the district court

applied the wrong standard for deciding whether the defendant has

accessed the plaintiffs work. L.A. Printex did not overrule Art

Attacks Ink, LLC v. MGA Entertainment, Inc., 581 F.3d 1138 (9th

Cir. 2009), or Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th

Cir. 2000), by not expressly reiterating that speculation or

conjecture fails to establish a reasonable probability of access. See

L.A. Printex, 676 F.3d at 846 ("To prove access, a plaintiff must

show a reasonable possibility, not merely a bare possibility, that an

alleged infringer had the chance to view the protected work.")

(quoting Art Attacks Ink, 581 F.3d at 1143); see also Nelson v. Pima

Cmty. Coil., 83 F.3d 1075, 1081-82 (9th Cir. 1996) ("[M]ere

allegation and speculation do not create a factual dispute for

purposes of summary judgment."). This court in Loomis v. Cornish

reaffirmed that access can be proved with circumstantial evidence

either by a chain of events linking the plaintiffs work and the

defendant's access, or by showing that the plaintiffs work has been

widely disseminated. See Loomis v. Cornish, 836 F.3d 991, 995 (9th

Cir. 2016). Summary judgment was proper because Briggs's

speculations about access did not raise a triable dispute.

The district court did not abuse its discretion by denying Briggs's

motion to amend his complaint after the deadline set forth in the

pretrial scheduling order because Briggs failed to show "good

cause." See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

607-09 (9th Cir. 1992) (setting forth standard of review and the

"good cause" requirement to modify a scheduling order).

The district court did not abuse its discretion by granting Briggs

a shorter discovery continuance than he had requested. See Martel

v. .Cnty. of Los Angeles, 56 F.3d 993, 995 (9th Cir. 1995) (en banc)

("[A] district court's decision to deny a continuance sought for the

purposes of obtaining discovery will be disturbed only upon the

clearest showing that denial of discovery results in actual and

substantial prejudice to the complaining litigant.") (citation and

internal quotation marks omitted).

AFFIRMED.

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

STEVE WILSON BRIGGS,

Plaintiff,

NEILL BLOMKAMP, et al.,

Defendants.

No. C 13-4679 PJH

ORDER RE MOTIONS FOR

SUMMARY JUDGMENT

The parties' motions for summary judgment came on for hearing

before this court on September 3, 2014. Plaintiff Steve Wilson Briggs

appeared in propria persona, and defendants Neill Blomkamp, Sony

Pictures Entertainment, Inc., Tristar Pictures, Inc., Media Rights

Capital II, L.P., and QED International LLC appeared by their

counsel Michael J.Kump and Gregory P. Korn. Having reviewed the

papers and other materials submitted by the parties, and having

carefully considered their arguments and the relevant legal

authority, the court hereby GRANTS defendants' motion and

DENIES plaintiffs motion.

BACKGROUND

A. Procedural and Factual Background

The following facts are as alleged in the first amended complaint

("FAC"). Plaintiff asserts that he completed a first draft of a

screenplay entitled "Uberopolis: City of Light" in May 2005, and that

he emailed copies of the screenplay to family and friends. On

December .16, 2005, he registered a revised version of "Uberopolis:

City of Light" with the Writers Guild of America (West).

In January 2006, plaintiff began attempting to market his

screenplay. During approximately the next two years, he sent

dozens of query letters and emails to literary agents and film

companies. He also posted short synopses on screenwriter websites,

and entered screenwriting and scriptwriting competitions.

In January 2007, plaintiff again revised his screenplay, and

renamed it "Butterfly Driver." He claims that in February 2007, he

posted the entire "Butterfly Driver" screenplay on triggerstreet.com,

a filmmaker-screenwriter website designed to link filmmakers and

screenwriters with industry professionals, by allowing members to

post screenplays, short films, and short stories to get feedback from

peers and professionals. Plaintiff asserts that at that time, the

triggerstreet.com website had approximately 50,000 active members.

Plaintiff alleges that between February 2007 and August 2007, he

posted "Butterfly Driver" on triggerstreet.com approximately four

times, making script revisions each time. In December 2007,

plaintiff stopped marketing the "Butterfly Driver" screenplay, as he

had decided to film it himself some day. From 2008 to 2012, he

worked on other film projects.

On May 27, 2013, plaintiff went to a movie theater, where he

watched a trailer for a film called "Elysium," featuring a plot,

characters, and settings that appeared to plaintiff to have been

misappropriated from "Butterfly Driver." Later that evening,

plaintiff read an entry on Wikipedia about the film "Elysium." He

claims that this reading confirmed his view that the story structure

of "Elysium" closely conformed to his "Butterfly Driver" screenplay.

Plaintiff alleges that on June 13, 2013, he located a version of the

screenplay for "Elysium" online, and downloaded it. He claims that

the text of the script conformed to the portion of the dialogue he had

observed when he watched the trailer on May 27, 2013. After an

attorney recommended that he register his copyright for "Butterfly

Driver," he obtained a copyright registration from the U.S.

Defendants released "Elysium" in August 2013, and plaintiff viewed

the film for the first time on August 10, 2013. Upon viewing the film,

he concluded that the "Elysium" film and screenplay infringed his

features such as plot, characters, settings, and themes. He

speculates that defendant Neill Blomkamp ("Blomkamp") accessed

the "Butterfly Driver" screenplay on triggerstreet.com, and used it

as the basis for his own screenplay for "Elysium."

Plaintiff filed the present action on October 8, 2013, asserting one

cause of action for copyright infringement. Each side now seeks

summary judgment.

B. Synopsis of "Butterfly Driver"

The protagonist of plaintiffs screenplay "Butterfly Driver" is Arlo

Grainer. The year is 2120. Arlo is a "legend" on Earth because of his

prior military service and subsequent defiance of the "Global State"

(or "State"). Arlo lives in a "Zone" outside the State's

jurisdiction, working as a "hover-jet" pilot flying supplies between

Zones. Living in the same building, but in a separate apartment, are

Arlo's estranged wife (Rianna) and his two children (John Carl and

Franny).

Arlo's antagonist, Drexler, is President of the State and the owner of

"Uberopolis," a "satellite city" that orbits Earth. Uberopolis is three

miles in diameter, and is enclosed in a transparent, spherical shield,

with a "flora-sphere" and an "aqua-sphere" beneath the city floor. It

is an ultra-modern city, with casinos, golf courses, high-rise

apartments, and offices. At the time of the story, half of Uberopolis

(also called "Sky Town") is developed; the other half (separated by a

wall) is still under development.

At work in the warehouse from which he flies supplies, Arlo receives

a distress signal from a fellow pilot, Roddy, and races on a

"sky-cycle" to Roddy's location to find that he has been shot and is

near death. Roddy tells Arlo that he was ambushed by bounty

hunters, who "set us up to find the butterfly

Tamara." He says

they will be seeking out Arlo and his family next. Arlo flies home to

collect his children and estranged wife, and send them to New York,

away from the Zone.

Knowing that to reenter the State, his family will need a hundred

thousand dollars to begin the "repatriation" process, Arlo accepts an

offer from the warehouse operator, Dylan, to make a dangerous

"butterfly run" to transport Tamara Gwynn to Los Angeles on a

skycycle. Tamara is heading to Los Angeles for a trial in a civil suit

against the State concerning her rights to the "A-cell" a small glass

cylinder that produces electricity from "anti-matter" water. She tells

Arlo that use of the A-cell can potentially save more than 100

million people every year, who would otherwise die from "fuel

pollution."

Arlo sends the real A-cell to a different Zone to hide it; Tamara

travels with a decoy. On the flight, they are ambushed by police in

"sky-cars" and crash into the streets of Los Angeles. They separate,

and Arlo is apprehended. Television news reports falsely claim that

Arlo kidnapped and killed Tamara. Jerry Mathiessen, a federal

agent who once attended flight school with Arlo, is sent to

investigate. The State Secretary persuades Jerry to take the case by

promising to pay for medical assistance for Jerry's son.

Arlo is criminally charged and transported to a "work program" on

Uberopolis until his trial date. Four months later, he is given a

"ticket" to return to Earth for his trial. While waiting for the shuttle

transport, he meets a fellow prisoner, David Levine, also set to

return for trial. They discuss the fact that the citizen-commute

shuttles take five hours to travel from Uberopolis to Earth and back,

while the inmate return shuttles take only two hours. As they are

being loaded onto the shuttle along with other prisoners, they notice

that there are no pilots, and conclude that Uberopolis has been

killing prisoners by dumping them into space during the shuttle

flights. They escape into an "airlock" to avoid suffering the same

fate. They pilot the shuttle back to Earth and part ways.

Arlo locates his family in Rianna's mother's Manhattan apartment,

and discovers that daughter Franny is on a respirator, near death,

and in need of the drug "Drexlerin." Arlo races to a warehouse that

normally stocks the drug, but supplies on Earth are temporarily

exhausted because production of Drexlerin has been discontinued in

anticipation of the release of its replacement, "Drexlerin 2." At the

warehouse, Arlo meets brother and sister Louis and Benni. They

provide Arlo with more respectable clothing, and help him obtain a

fake ID and passport that will enable him to covertly travel by

shuttle to Uberopolis to find Drexierin. As Arlo is arranging for his

transport on the shuttle, he also recovers the A-cell, which he had

arranged to be sent to a friend for safekeeping. Benni gives Arlo a

yellow butterfly "dreamcatcher" for luck.

Jerry manages to track Arlo down, but Arlo disarms Jerry and forces

him into the trunk of a sky-car. Arlo tells Jerry he must find

Drexierin for Franny, and proceeds to Uberopolis. Upon arrival, Arlo

obtains a police uniform and proceeds to the hospital warehouse to

search for the Drexierin. He discovers that the warehouse is empty,

and as he is leaving the hospital, the security guards recognize him

and give pursuit. He steals an unattended police "sky-ranger," and

then contacts Drexler. After he tells Drexler he has the genuine

A-cell, Drexler agrees to a meeting.

Based on the investigation he has been conducting, Jerry has

figured out that Arlo and Drexler are acquainted from their past

during wartime. After he is released from the trunk of the sky-car,

Jerry follows Arlo to Uberopolis and orders a technician in the

"Drexler Media" building to track Arlo's movements with

surveillance cameras located throughout the satellite. Jerry forces

the tech to broadcast the video from the surveillance cameras to

television stations.

With the surveillance cameras tracking and broadcasting his

movements, Arlo crashes the police sky-ranger through the glass

windows of Drexier's 57th floor conference roQm. He persuades

Drexler to dismiss the security guards by threatening to break the

glass A-cell and release the anti-matter, which will result in a

massive explosion.

Arlo and Drexler converse. Not knowing that the conversation is

being televised, Drexler confesses to a number of crimes, including

dumping prisoners into space and killing Zone residents and

prisoners for transplant organs, and also to being an imposter.

Drexler is actually "Midland," a soldier previously known to Arlo.

Midland murdered the real Drexler, adopted his identity, and

inherited Drexier's fortune.

Drexler tells Arlo that Drexierin is produced on Earth, but was

"warehoused" on Uberopolis "to keep it safe from pirates until our

bunkers were ready" and that the last shipments were returned to

Earth the previous day. However, he has a few doses of Drexierin in

1 0a

his possession, and offers to exchange them for the A-cell. He also

offers to have Ado "escorted" to give his daughter the Drexlerin,

after which he will be returned to prison.

Arlo initially hesitates, telling Drexler that Tamara didn't want him

to have the A-cell. Drexler responds that "Tamara would have

destroyed the energy industry and our economy for her cause."

Drexier's plan is to phase the A-cell technology in over a thirty-year

period, in order to protect the existing energy industry and the

"quality of life," notwithstanding that billions of people will die in

the interim.

They begin to exchange the A-cell for the Drexlerin. Drexler opens

his briefcase and removes the Drexlerin. Arlo slowly extends the

A-cell to Drexler, and takes the Drexlerin from him. He then sees in

a mirror reflection that Drexler is reaching for a gun with his other

hand. As Drexler's fingers come within an inch of the A-cell, Arlo

tosses it out the broken window. Drexler scrambles out the window

after the A-cell, gun in hand, followed by Arlo.

As Drexler is about to grab the A-cell, Ado seizes Drexier's ankle,

and flings Drexler toward the city floor. However, Arlo's throw is not

hard enough to hurt Drexler, because of the reduced gravity on

Uberopolis. Arlo then seizes the A-cell, just before his own "gravity

garments" pull him down.

A lengthy fight and chase scene follows, involving Ado, Drexler,

Jerry, and the police, culminating in Drexler bearing down on Arlo

on a sky-ranger and shooting him in the leg. Arlo dives into a harbor

to escape Drexler and encounters a dolphin named Spike (whom he

had previously met while waiting for transport with fellow prisoner

David Levine) and is guided to an escape hatch.

Drexler finds Arlo on a shuttle. Just as Arlo is gaining the upper

hand, he suffers a debilitating "ice pick" headache caused by a

longstanding chronic affliction. Drexler shoots Arlo and is on the

verge of killing him when Jerry arrives and discharges his stun-gun

into Drexier's back, knocking him unconscious. Arlo and Jerry pilot

the shuttle off Uberopolis. They are immediately targeted by a

missile launched from Uberopolis.

Arlo drifts out of consciousness (from his bullet wound) and has a

dreamlike vision of a pale child with a respirator holding a yellow

flower, and of Benni's dream catcher in the eyes of Spike the

dolphin. Arlo awakes and orders Jerry to turn back toward

Uberopolis.

The missile follows, and just before the shuttle collides with

Uberopolis, Arlo launches an evacuation pod. The shuttle and

missile continue forward and destroy Uberopolis.

Arlo and Franny survive. They attend the funeral of Jerry's son,

Matty, who died from a respiratory illness. Rianna asks Arlo to

"repatriate" into the State with his family, but he declines, and

returns to his job as a hover-jet pilot.

C. Synopsis of "Elysium"

Defendants' film "Elysium" opens with images of Earth in total

squalor. The year is 2154, and the extremely wealthy have

abandoned the planet to live on a luxurious space station called

"Elysium." Elysium is exclusive to its wealthy citizens, who have

access to futuristic devices called "med bays," which cure all diseases

and injuries, and can even halt aging. The less fortunate remaining

on Earth are poor. They live in rundown apartments and have

inadequate medical care, and are policed by a brutal robotic police

force.

The film's protagonist, Max, grows up as a child in a convent where

he befriends a young girl, Frey. As a child, Max steals under the

delusion that he can buy his way onto Elysium. He continues

stealing as an adult and has an extensive criminal history. On

parole, Max lives in Los Angeles and works at a company called

Armadyne building the robots that police Earth. Walking toward a

bus headed to work, Max is confronted and battered by robot police

officers. He proceeds to a hospital and is surprised when he is

treated by Frey, now a nurse.

The film cuts to a mass of people trying to board shuttles bound for

Elysium. An ID is burned onto the wrist of everyone who boards the

shuttle. The shuttles take off. As they approach Elysium, the space

station's Defense Secretary, Delacourt, gives an order to a covert

agent on Earth, Kruger, to destroy the shuttles. Kruger destroys two

of the shuttles with shoulder-fired rockets. The third shuttle lands

on Elysium, and the "illegal aliens" on board flee robot police forces.

One young girl enters a residence and is able to use a med bay

because the ID on her wrist fools the device into believing she is a

citizen of Elysium. Patel, the President of Elysium, reprimands

Delacourt and dismisses Kruger.

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Back on Earth, Max is accidentally shut in a chamber while working

at Armadyne, and is exposed to a heavy dose of radiation. In a

flashback scene, a nun hands the child Max a locket with a photo of

Earth to remind him that Earth looks as beautiful from there as

Elysium "looks beautiful from here." Max awakes and is told by an

Armadyne robot that he will die in five days from the radiation

exposure.

Max finds Spider, a smuggler who runs the illegal shuttles to

Elysium. In exchange for a promise of a shuttle ride to Elysium

where he might be able to access a med bay to cure his fatal

condition, Max accepts a dangerous mission: he must kidnap

Armadyne's chief officer, John Carlyle, and download valuable data

from Carlyle's brain into his own using a futuristic device. An

exoskeleton is installed onto Max's body and head to give him

super-human strength.

Meanwhile, Delacourt has persuaded Carlyle, who also designed

Elysium, to prepare a "reboot sequence" that will allow her to wrest

the presidency of Elysium from the current President, Patel, with

whom she has political differences. Carlyle uploads the software

program into his brain, and leaves Earth on a private shuttle.

However, Max and his fellow rebels intercept the shuttle, capture

Carlyle, and plug Carlyle's brain into Max's. Max's brain seizes

when the download starts because of a defense mechanism that

Carlyle encoded into the reboot sequence.

Delacourt learns of the kidnapping and orders Kruger to intercede

but to avoid harming Max (because Max holds the reboot sequence

in his brain). Max evades Kruger and his men, who arrive in an

airship and kill everyone else. Severely injured, Max finds Frey, who

takes him to her home. He tells Frey that he must travel to Elysium

to save his life. Frey begs Max to take her daughter Matilda, who is

dying of leukemia, with him. He refuses, in order to protect them,

and leaves.

Max returns to Spider's hideout to get a shuttle to Elysium, but the

air traffic system has been frozen by the authorities on Elysium.

Spider plugs a computer into Max's brain and is astonished to see

that Max now possesses a reboot sequence that would "override the

whole system" and "open the borders," thus making everyone a

citizen of Elysium. Max is interested only in saving his own life and

refuses to help Spider. He leaves and voluntarily surrenders to

Kruger. Max threatens that he will blow up Kruger's ship with a

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grenade unless he is taken to a med bay on Elysium, but as he

boards the ship, he discovers that Kruger has found and kidnapped

Frey and Matilda.

A fight erupts en route to Elysium. Max drops the grenade. It

detonates, destroying Kruger's face and crashing the ship on

Elysium. Frey and Matilda flee to a house in hopes of using a med

bay, but it does not work because Matilda is not a citizen. All three

are captured.

Delacourt confronts Kruger for crashing a ship onto Elysium.

Kruger, whose mangled face has been regenerated by a med bay,

decides that he will use the reboot sequence to make himself the

president of Elysium, and he stabs and kills Delacourt. Max, Frey,

and Matilda are being held separately in a control center on

Elysium.

Max escapes and sees on a video screen that Spider and his men

have landed on Elysium. He contacts Spider to set up a rendezvous,

and also rescues Frey and Matilda and tells them to head to a med

bay. Max and Spider race to download the reboot sequence as

Kruger chases them. Max suffers a seizure which allows Kruger to

catch up, but he is able to kill Kruger.

Max and Spider make it to a control room. Max understands that he

will die the moment the reboot sequence is extracted from his brain.

Max studies his locket with the picture of Earth while staring at the

actual planet out a large window. He pushes a button to start the

download and dies instantly. When the download completes,

Elysium's computer systems recognize everyone on Earth as citizens

of Elysium. Matilda's leukemia is cured by a med bay, and an

armada of shuttles equipped with med bays is dispatched toward

Earth.

DISCUSSION

A. Legal Standards

1. Motions for Summary Judgment

A party may move for summary judgment on a "claim or defense" or

"part of

a claim or defense." Fed. R. Civ. P. 56(a). Summary

judgment is appropriate when there is no genuine dispute as to any

material fact and the moving party is entitled to judgment as a

matter of law. Id.

14a

A party seeking summary judgment bears the initial burden of

informing the court of the basis for its motion, and of identifying

those portions of the pleadings and discovery responses that

demonstrate the absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those

that might affect the outcome of the case. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact

is "genuine" if there is sufficient evidence for a reasonable jury to

return a verdict for the nonmoving party. Id.

Where the moving party will have the burden of proof at trial, it

must affirmatively demonstrate that no reasonable trier of fact could

find other than for the moving party. 5oremekun v. Thrifty Payless,

Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the

nonmoving party will bear the burden of proof at trial, the moving

party can prevail merely by pointing out to the district court that

there is an absence of evidence to support the nonmoving party's

case. Celotex, 477 U.S. at 324-25. If the moving party meets its

initial burden, the opposing party must then set out specific facts

showing a genuine issue for trial in order to defeat the motion.

Anderson, 477 U.S. at 250; see also Fed. R. Civ. P.56(c).

When deciding a summary judgment motion, a court must view the

evidence in the light most favorable to the nonmoving party and

draw all justifiable inferences in its favor. Anderson, 477 U.S. at

255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011).

2. Copyright infringement

To prevail on a claim of copyright infringement, a plaintiff must

demonstrate ownership of a valid copyright, and infringement the

copying of protected elements of the work. Feist Publ'ns, Inc. v.

Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Absent evidence of

direct copying, the plaintiff must demonstrate both that the

defendant had "access" to the plaintiff's work and that the two works

are substantially similar. Funky Films, Inc. v. Time Warner Entm't

Co., L.P., 462 F.3d 1072, 1076 (9th Cir. 2006).

In evaluating whether two works are substantially similar, the

Ninth Circuit employs an "extrinsic test" and an "intrinsic test." See

Benay v. Warner Bros. Entm't, Inc., 607 F.3d 620, 624 (9th Cir.

2010); Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1174 (9th Cir.

2003). The extrinsic test is "an objective comparison of specific

expressive elements[,]" while the intrinsic test is a subjective

comparison that focuses on "whether the ordinary, reasonable

1 5a

audience' would find the works substantially similar in the 'total

concept and feel of the works." Benay, 607 F.3d at 624 (quoting

Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002)).

Only the extrinsic test is applied at the summary judgment

stage.Funky Films, 462 F.3d at 1077. The intrinsic test is left to the

trier of fact. Id.

The extrinsic test "focuses on articulable similarities between the

plot, themes, dialogue, mood, setting, pace, characters, and sequence

of events in two works." Benay, 607 F.3d at 624 (quoting Kouf v.

Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.

1994)). The court must take .care to inquire only whether the

protectable elements, standing alone, are substantially similar. Id.

(citing Cavalier, 297 F.3d at 822); see also Rice, 330 F.3d at 1174

(courts "must distinguish between the protectable and unprotectable

material because a party claiming infringement may place 'no

reliance upon any similarity in expression resulting from

unprotectable elements.") (citation omitted). In other words, courts

"filter out and disregard the non-protectable elements in making [a]

substantial similarity determination." Funky Films, 462 F.3d at

1077 (quoting Cavalier, 297 F.3d at 822).

B. The Parties' Motions for Summary Judgment

Plaintiff has attached a copy of the June 21, 2013 Certificate of

Registration from the Copyright Office to the FAC. A copyright

registration is "prima facie evidence of the validity of the copyright

and the facts stated in the certificate" if the work is registered before

or within five years of when it is first published. 17 U.S.C. § 410(c);

see also Entertainment Research Grp., Inc. v. Genesis Creative Grp.,

Inc., 122 F.3d 1211, 1217 (9th Cir. 1997). Defendants do not

challenge plaintiffs ownership of a valid copyright in a work entitled

"Butterfly Driver" (formerly "City of Light: Uberopolis").

Thus, plaintiffs burden on summary judgment is to show that there

are no triable issues with regard to the second element of the claim

of copyright infringement the copying of protected elements of his

original work such that summary judgment must be granted as a

matter of law. Celotex, 477 U.S. at 323; Soremekun, 509 F.3d at 984.

Specifically, plaintiff must provide direct evidence of copying, or

circumstantial evidence "through a combination of access to the

copyrighted work and substantial similarity between the

copyrighted work and the accused product." Three Boys Music Corp.

v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000).

16a

For their part, defendants' burden on summary judgment is to point

out an absence of evidence to support the "copying" element of

plaintiffs claim; and, if they are successful, the burden then shifts to

plaintiff to set out specific facts showing a genuine issue for trial in

order to defeat the motion. Anderson, 477 U.S. at 250; Fed. R. Civ. P.

56(c).

1. Access

Defendants contend that plaintiff has no evidence of access. Direct

access is shown if there is proof that the defendant actually viewed,

read, or heard the work at issue. Lucky Break Wishbone Corp. v.

Sears, Roebuck & Co., 528 F.Supp. 2d 1106, 1122 (W.D. Wash.

2007), affd, 373 Fed. Appx. 752 (9th Cir. 2010). Here, plaintiff has

provided no direct evidence that defendants ever saw the "Butterfly

Driver" screenplay.

Access may also be demonstrated by circumstantial evidence, which

requires a showing that the defendants had a "reasonable

opportunity" or a "reasonable possibility" of viewing plaintiffs work

prior to the creation of the infringing work. See Three Boys Music,

212 F.3d at 482 (access may be shown by a chain of events

connecting plaintiffs work and the defendant's opportunity to

view/hear/copy the work, such as dealings through a third party that

had access to the plaintiffs work and with whom both the plaintiff

and the defendant were dealing; or by the plaintiffs work being

widely disseminated). Reasonable access requires more than a "bare

possibility," and "may not be inferred through mere speculation or

conjecture." Id. (citations and quotations omitted); see also Art

Attacks Ink, LLC v. MGA Entm't Inc., 581 F.3d 1138, 1143-44 (9th

Cir. 2009).

Both in his own motion and in his opposition to defendants' motion,

plaintiff relies on the allegations in the FAC. There, he asserts that

he posted the "Butterfly Driver" script on a website operated by

triggerstreet.com in February 2007, and that triggerstreet.com was

"the only place" he ever posted a complete script of "Butterfly

Driver." FAC ¶J 18-22. At the time, triggerstreet.com allowed

members to post screenplays and short films to get feedback from

peers and professionals

and gave them "a small hope of being

noticed by a Hollywood insider." FAC T 231.

Based on this, plaintiff asserts that triggerstreet.com "is where the

[d]efendants had access to [p]laintiffs script." FAC ¶ 23. He claims

that he posted four versions of "Butterfly Driver" on

1 7a

triggerstreet.com between February and August 2007, and that after

he posted one of the versions in late July 2007, "[a] young director

(whose name escapes the [p]laintiff)

praised the script through

the [website's] message board." FAC ¶ 26.Plaintiff alleges that this

director "MAY have been [d]efendant, Neill Blomkamp[,]" although

he also asserts that "Blomkamp, or any associate, may have

accessed the work, without a word." FAC ¶ 26 (emphasis in original).

He does not believe that the founders of triggerstreet.com "were

complicit in the access of his work or the infringement[,] but

certain that one or more of the [d]efendants, or an acquaintance,

accessed the [p]laintiffs work on triggerstreet.com." FAC ¶ 226.

In plaintiffs view, Blomkamp, who is credited with writing

"Elysium," is "most likely the infringer" because (a)

triggerstreet.com is a website for short filmmakers and

screenwriters; (b) in 2007 Blomkamp was exclusively a short

filmmaker, who was based in Los Angeles (home of Trigger Street);

filmmaker in the world and living in the screenwriting hub of the

world;" and (d) plaintiff was a screenwriter. See FAC ¶IJ 227, 232,

233.

Defendants contend, however, that plaintiff alleges no facts in the

FAC to support his claim that Blomkamp found the "Butterfly

Driver" screenplay on triggerstreet.com. They argue further that

plaintiff has no evidence that any defendant, including Blomkamp,

had a reasonable opportunity or any reasonable possibility of

viewing "Butterfly Driver," and that plaintiff is simply speculating

when he alleges in the FAC (and argues in these motions) that

Blomkamp accessed his screenplay on triggerstreet.com.

Defendants also assert that such a contention is rebutted by

Blomkamp's uncontroverted declaration filed in support of

defendants' motion. In his declaration, Blomkamp states that before

this lawsuit was filed, he had never heard of the website

triggerstreet.com; that he has never visited the website; and that he

did not obtain a copy of plaintiffs screenplay on that site or

anywhere else, and was not given a copy by anyone. Declaration of

Neill Blomkamp ("Blomkamp Decl.") IT 7-8.

Blomkamp briefly explains the genesis of "Elysium" as follows. He

states that he was raised in Johannesburg, South Africa, where he

lived for 18 years before moving to Vancouver. As a teenager he

began pursuing 3D animation and design, which he continued

studying in film school. Blomkamp Deci. 2. He made several short

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films between 2004 and 2007, with storylines involving

extraterrestrials and robotic workers. His first feature film was

"District 9," which tells the story of extraterrestrials who are

marooned in South Africa when their spacecraft becomes disabled,

and are confined to camp outside of Johannesburg, and which

explores themes of racism and segregation, and has a main

character who transforms into an alien after coming in contact with

an extraterrestrial substance. Blomkamp Decl. ¶J 3-4. He asserts

that he created "Elysium" as he creates all his works, proceeding

from visual concepts (in this case, utopian space stations and a

robotic police force) and incorporating themes of racial and class

segregation (building on his earlier works). Blomkamp Decl. ¶J 5-6.

As noted above, to establish infringement, a plaintiff that has a valid

copying. Here, plaintiff has no evidence that Blomkamp or any

defendant had access to his "Butterfly Driver" screenplay. Plaintiff

contends that he "dedicated over a page of the FAC (page 4 line 11 to

page 5 line 13) to alleging facts supporting the plausibility of

Blomkamp accessing his screenplay on triggerstreet.com." However,

allegations in a complaint are not evidence that can be used to

support or oppose summary judgment. See Celotex, 477 U.S. at 324;

see also Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th

Cir. 2003). Moreover, the allegations in the FAC are entirely

speculative as they relate to Blomkamp's access to the screenplay.

Plaintiff has failed to provide any evidence supporting his assertion

that defendants had access to his screenplay.

In his own motion, plaintiff argues that access can be established

under the "chain of events" theory. He reiterates that he posted his

screenplay on triggerstreet.com; that triggerstreet.com was based in

Los Angeles; that the majority of triggerstreet.com members were

"short filmmakers and screenwriters;" and that Blomkomp was a

short film-maker who was "media-savvy" and who was based in Los

Angeles (the "screenwriting hub of the world").

Even assuming for the sake of argument that these factual

assertions are judicially noticeable and/or supported by evidence,

together they do no more than suggest a bare possibility of access,

which is insufficient to sustain a copyright infringement claim.

Plaintiff has not provided evidence of a chain of events sufficient to

establish a reasonable possibility of access. See Jason v. Fonda, 698

F.2d 966, 967 (9th Cir. 1982); see also Art Attacks, 581 F.3d at 1144.

1 9a

He also asserts that his screenplay was so widely disseminated that

it is reasonably possible that Blomkamp had access to his work. He

claims that he emailed the screenplay to his family and friends, and

that he posted drafts of the screenplay on triggerstreet.com.

However, even were this claim supported by evidence, it does not

show wide dissemination sufficient to support an inference that

defendants had access to his work, or to raise a triable issue as to

access. He also contends that over a 23-month period he sent queries

to agents seeking representation, posted short synopses of the

storyline on screenwriter websites, and entered screenwriting

competitions. Again, these communications and Internet postings do

not constitute evidence of wide dissemination of the screenplay.

2. Infringement

Had plaintiff provided some evidence of access (even circumstantial),

he could potentially show infringement by demonstrating that the

two works are "substantially similar." Because plaintiff lacks any

evidence of access, however, he can establish copyright infringement

only by showing "striking similarity." See Three Boys Music, 212

F.3d at 485 ("in the absence of any proof of access, a copyright

plaintiff can still make out a case of infringement by showing that

the [works] were 'strikingly similar") (citations omitted); see also

Pringle v. Adams, 556 Fed. Appx. 586, 587 (9th Cir. Feb. 21, 2014);

Seals-McClellan v. Dreamworks, Inc., 120 Fed. Appx. 3, 4 (9th Cir.

2004) (citing Baxter v. MCA, Inc., 812 F.2d 421, 424 n.2 (9th Cir.

1987)).

Striking similarity is a high bar. "At base, 'striking similarity'

sithply means that, in human experience, it is virtually impossible

that the two works could have been independently created." 4

Melville B. Nimmer & David Nimmer, Nimmer on Copyright §

13.02[B] (2005), quoted in Stewart v. Wachowski, 574 F.Supp. 2d

1074, 1103 (C.D. Cal. 2005); see also Bernal v. Paradigm Talent and

Literary Agency, 788 F.Supp. 2d 1043, 1052 (C.D. Cal. 2010). That

is, "[t] show a striking similarity between works, a plaintiff must

produce evidence that the accused work could not possibly have been

the result of independent creation." Seals-McClellan, 120 Fed. Appx.

at 4 (emphasis in original) (citation omitted).

Defendants contend that the protectable elements of the two works

share no similarity in expression

let alone "striking similarity."

Protectable expression includes "the specific details of an author's

rendering of ideas." Funky Films, 462 F.3d at 1077 (citation and

quotation omitted). What is not protectable are "basic plot ideas for

20a

stories" or other generic concepts. Id.; see also Van v. Cameron, 566

Fed. Appx. 615, 616 (9th Cir. 2014).

Plaintiff asserts that "Elysium" infringes numerous elements of his

"Butterfly Driver" screenplay, including "plot, characters, settings,

conflicts, themes, catalyst, crisis, climax, inciting incident, his hero's

'character affliction,' and 'keepsake necklace' and more." Defendants

argue that neither the plot/sequence of events, nor the settings, nor

the dialogue, nor the characters, nor the themes, nor the mood/pace

in the two works are similar. In addition, defendants assert that the

parties' works share nothing more than "stock" or "cliché" ideas. In

opposition and in support of his own motion, plaintiff argues that all

the elements alleged in the FAC are similar. When evaluating

literary works for similarity, courts compare the works' plot, themes,

First, plaintiff contends that in both "Butterfly Driver" and

"Elysium," there is a hero who must get to the satellite world for

medicine or medical care. This is an abstract idea that is not

expressed similarly in the screenplay and the film. In the

screenplay, Arlo is on a mission to save his daughter Franny, and

travels to Uberopolis after he discovers that supplies of Drexierin on

Earth are exhausted. In the film, Max is dying of a fatal dose of

radiation, and must travel to Elysium because that is the only place

that there is any possibility of receiving the necessary medical

treatment to counter the radiation poisoning. He travels there to

save himself, not a child.

1 Plaintiff compares the "Butterfly Driver" screenplay to the apparently

unauthorized (and unauthenticated) version of the "Elysium" screenplay he

downloaded. The proper comparison is between the "Butterfly Driver"

screenplay and the film "Elysium." See Quirk v.Sony Pictures Entm't, Inc.,

2013 WL 1345075 at *6 (N.D. Cal. Apr. 2, 2013) (in a case where the plaintiff

alleged that the defendant's film infringed his novel, the "only relevant

question[was]

whether the final movie as filmed, edited, and released"

contained matter substantially similar to protectable elements of the

plaintiffs novel); see also See v. Durang, 711 F.2d 141, 142 (9th Cir.1983).

In addition, plaintiff claims he downloaded the "Elysium" screenplay on June

13, 2013, a week before he obtained his copyright registration. However, he

had seen a trailer for the film "Elysium" on May 27, 2013. While the actual

film was not released in the theaters until October 9, 2013, plaintiff cannot

maintain an action for copyright infringement based on an undated version of

an "Elysium" screenplay that he downloaded prior to his copyright

registration.

2 In addition, a number of what plaintiff characterizes as "plot features"

appear to the court to instead be features of setting, theme, or character.

Accordingly, the court has endeavored to place any analysis of those features

21a

under the appropriate heading. dialogue, mood, setting, pace, characters, and

sequence of events. See Berkic, 761 F.2d at 1292. Here, while there may be

some superficial similarities between the two works, a close examination of

the screenplay and the film reveals many significant differences and few real

similarities among the protectable elements. 1 Plot/sequence of events

Plaintiff asserts that defendants copied numerous "plot features!! of the

"Butterfly Driver" screenplay. Generally, the "plot features" identified by

plaintiff are similar only at a very abstract level. Indeed, many of these

features reflect generic themes that are not expressly similar in the two

works.

Second, plaintiff asserts that the hero in the "Butterfly Driver"

screenplay is poor, witnesses the death of his best friend, and needs

I.D. and transport to a satellite world, and that the same is true of

the hero in the film "Elysium." However, these ideas are not

expressed similarly in the two works. In the screenplay, Arlo

requires a fake ID because he is a fugitive on the run from the

authorities and can't travel to Uberopolis under his own identity. In

the film, Max (or anyone traveling to Elysium) needs an ID burned

onto his/her arm so he/she will be recognized as a citizen of Elysium.

There is no support for plaintiffs assertion that the two works are

similar in the manner that each hero "witnesses the death of his

best friend." Arlo responds to a distress call from Roddy, and arrives

just as Roddy (who was shot by bounty hunters) is dying, to learn

that bounty hunters are after his (Arlo's) family. Max and his friend

Julio are on a mission to kidnap Carlyle and steal data from his

brain, when the covert agent Kruger arrives and kills Julio with a

sword.

Third, plaintiff contends that in both works, there is a disabled

transporter who helps the hero's emigration plan, on condition that

the hero accept a dangerous mission. This appears to be an attempt

to compare the screenplay's Dylan and the film's Spider two very

different characters who play very different roles in the story. In

"Butterfly Driver," Dylan is Arlo's boss at the warehouse, and he

plays a minor role by setting Arlo up with a "butterfly run" so that

Arlo can earn the money he needs for his family's repatriation. In

the film "Elysium," Spider is not Max's boss, and there are no

"butterfly runs." Rather, Spider is an independent operator who

runs undocumented shuttles from Earth to Elysium. He engages

Max to kidnap Carlyle and download data from his brain, and

coordinates the effort to reboot Elysium's computers to make

everyone on Earth a citizen of Elysium. While it is true that both

Dylan and Spider have physical disabilities, there is no comparison

between the role played by Spider in the plot of the film "Elysium"

22a

and the minor role played by Dylan in the plot of the "Butterfly

Driver" screenplay.

Fourth, plaintiff asserts that there is an agent in each work who is

sent by the villain to apprehend the hero, and who accepts the

assignment after negotiating. This appears to be an attempt to

compare the roles of Jerry and Kruger in the plots of the screenplay

and the film, respectively. However, their roles are vastly different.

In the screenplay, Jerry is a federal agent working for the State. He

investigates Arlo on suspicion of murdering Tamara Gwynn. After

discovering that Arlo is innocent, he helps Arlo expose Drexler as a

murderer and imposter, and saves Arlo from Drexler. In the film,

Kruger does none of those things. Instead, he pursues Max with the

goal of obtaining the reboot sequence that has been downloaded into

Max's brain. And rather than attempting to rescue Max, Kroger

hunts him down and attempts to kill him.

Fifth, plaintiff contends that in each work, the hero carries a

"keepsake necklace," which factors in to the story's conclusion. In

the "Butterfly Driver" screenplay, Benni, who appears to be

interested romantically in Arlo, gives him a yellow butterfly

dreamcatcher for good luck. Although Arlo sees the dreamcatcher in

Spike the dolphin's eye during his dreamlike vision, its significance

to the work is negligible. By contrast, in the film "Elysium," the nun

who raises Max in the orphanage gives him a locket with a picture of

Earth. This locket is not a dreamcatcher, a good luck charm, or a

token of romantic interest. It is a teaching tool to remind Max of the

beauty around him. Moreover, the locket plays into the climax of the

film in a way that is unrelated to the plot of the screenplay.

Sixth, plaintiff asserts that in each work, the hero threatens the

villain with detonating an explosive device. In "Butterfly Driver,"

Arlo threatens to use the A-cell to blow up Uberopolis if Drexler

refuses to dismiss the security guards and meet with him. In the

film "Elysium," Max threatens that he will blow up Kruger's shuttle

if Kruger or his men try to harm him. The only similar element here

is the stock idea of using a threatened explosion as leverage.

Seventh, plaintiff contends that both the screenplay and the film

have "techie" programmers who help the hero with fake

identification to get into the satellite world. However, this

characterization is misleading and does not reflect the actual plot of

either work. The identification required by Arlo (fake ID,

necessitated by fact that he is a fugitive and can't travel under his

own name) is different from the identification required by Max (ID

23a

burned into the arm, which will enable him to pass as a citizen of

Elysium).

Eighth, plaintiff asserts that each work includes a primary

character who negotiates with insurers (or a hospital) for the life of

his/her child. This is a common or even generic idea which, as

defendants note, has been previously used in the plot of films such

as the 2002 film "John Q" with Denzel Washington. As for the

"negotiating," plaintiff appears to be attempting to compare the

screenplay's Jerry, whose son Matty needs a "filter room" because of

respiratory ailments, with the films's Frey, whose daughter is in the

hospital with leukemia. However, Jerry is offered financial help with

the "filter room" if he accepts the task of investigating Arlo, but

nothing like this occurs with Frey, who is simply forced to take her

daughter home from the hospital because her daughter cannot be

cured there.

Ninth, plaintiff contends that both "Butterfly Driver" and "Elysium"

include a climatic battle between the hero and the villain, during

which the hero suffers a terrible headache. Plaintiff appears to be

attempting to compare the chase and fight scene between Ado and

Drexler in his screenplay, and the chase and fight scene between

Max and Kruger in "Elysium."

These scenes are not similar except at the most general level. In the

"Butterfly Driver" screenplay, Arlo confronts Drexler by flying a

sky-cycle through the glass windows of his 57th floor office. Not

knowing that the conversation is being recorded by surveillance

cameras and broadcast on television, Drexler confesses to his crimes

including being an imposter. In the ensuing struggle, Arlo and

Drexler exit the office through the broken window, but float to the

ground unharmed because of reduced gravity on Uberopolis. Their

chase and fight scene takes them through the streets of Uberopolis

and eventually onto a shuttle. Arlo suffers a headache mid-combat

and Drexler seizes the moment to shoot him in the neck. Drexler is

about to kill Arlo when Jerry intercedes and saves his life.

By contrast, in the film "Elysium," Max is being held captive in an

Elysium control center. He escapes and sees on a video screen that

Spider and his men have arrived on the space station. Max rescues

Frey and Matilda and tells them to find a med bay. He then meets

Spider, and the two of them race to a control room where they can

start the reboot sequence in Max's brain. Max and Spider are fleeing

Kruger when Max suffers a seizure caused by the defense

mechanism that Carlyle coded into the reboot sequence. Kruger

24a

catches up, but Max kills him in a hand-to-hand fight with the help

of an exoskeleton that was grafted onto his body to give him added

strength. Max and Spider continue to the control room where they

succeed in rebooting Elysium's computers. These scenes from the

film are nothing like the scenes in the screenplay.

Tenth, plaintiff asserts that both works conclude with a "globally

significant resolution." This is a generic idea that is not

copyrightable. Moreover, it is not expressed in a similar manner in

the two works. The screenplay concludes with Arlo destroying

Uberopolis, while the film concludes with the software program that

was downloaded into Max's brain rebooting Elysium's computers to

open up citizenship to everyone on Earth. While these resolutions

may be "global" and even "significant," they are clearly not similar.

In short, none of the "plot features" identified by plaintiff is similar

in the two works, except at the highest level of abstraction. Because

unprotected elements are irrelevant, it is "not the basic plot ideas for

stories, but the actual concrete elements that make up the total

sequence of events and the relationships between the major

characters" that must be compared. Funky Films, 462 F.3d at 1077

(quoting Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985)).

Similarities in general plot ideas are not probative of infringement.

Id. at 1081; see also Benay, 607 F.3d at 624 ("[f]amiliar stock scenes

and themes that are staples of literature are not protected").

Likewise, scenes a faire

or situations that "flow naturally from

generic plot-lines" are unprotected and therefore ignored under the

extrinsic test. Funky Films, 462 F.3d at 1077; see also Benay, 607

F.3d at 624-25.

Benay, Funky Films, and Berkic are all cases in which the Ninth

Circuit noted similarities between the plaintiffs work and the

accused work at relatively high level of abstraction, but many

substantial differences upon closer examination. In Benay, the

authors of a screenplay ("The Last Samurai") sued the creators of a

film (also called "The Last Samurai") alleging copyright

infringement. Both works told the story of an American war veteran

who travels to Japan in the 1870s to train the Japanese Imperial

Army in modern Western warfare in order to combat a "samurai

uprising." Id., 607 F.3d at 625. In both works, the protagonist meets

the Emperor, who is struggling to modernize Japan; the protagonist

introduces modern warfare to the Imperial Army, using

contemporary Western weaponry and tactics; and the protagonist

suffers a personal crisis and is transformed as a result of his

interaction with the samurai. Id. Nevertheless, the court found that

25a

the two works were similar only at a "cursory" level, and that a

closer examination of the protectable elements exposed more

differences than similarities. Id.

The court described the screenplay as "largely a revenge story," in

which the protagonist "emerges from domestic security, to despair at

the loss of his son, to revenge and triumph when he defeats his

ruthless antagonist, Saigo." Id. In contrast, the film, which the court

described as "more a captivity narrative," somewhat reminiscent of

"Dances with Wolves," the protagonist. "moves from isolation and

self-destructive behavior, to the discovery of traditional values and a

way of life that he later comes to embrace." Id.

In Funky Films, the creator of a screenplay ("The Funk Parlor")

sued the creators of a television series ("Six Feet Under") alleging

narratives about a family-run funeral parlor, the death of the family

patriarch, the inheritance of the business by the family's two sons

(one older and more "creative" and the other younger and more

"conservative"), and the return of the older brother from a distant

city to help run the family business, which was on fragile financial

footing and was fighting off a rival funeral parlor. Id., 462 F.3d at

1077-78. Nevertheless, despite these apparent similarities, the court

found that an actual reading of the two works reveals numerous

significant differences.

For example, the court found that the father's suicide in "The Funk

Parlor" sets the stage for a series of additional murders, including

several of the main characters. The story revolves around the older

brother, who rehabilitates the business, falls in love with one of the

central characters, proposes to her, and then discovers she is a serial

murderer and feels compelled to kill her to save his own life. Id. at

1078. By contrast, the court noted, "Six Feet Under" is not a murder

mystery, and does not revolve around a particular plot line, as the

series develops separate plot lines around each member of the

family, and examines each character's psyche and his or her

interpersonal interactions and emotional attachments in the wake of

the cataclysmic death of the patriarch of the family. Id.

In Berkic, the author of a screenplay ("Reincarnation, Inc.") sued the

writer/director and producer of a film ("Coma"), which was based on

a novel by the same name by Robin Cook. The plaintiff alleged that

both the book and the movie infringed his screenplay. The court

found that "[a]t a very high level of generality, the works do show a

certain gruesome similarity," as both works "deal with criminal

26a

organizations that murder healthy young people, then remove and

sell their vital organs to wealthy people in need of organ

transplants[.]" In addition, the court noted, both works "[t]o some

extent

take their general story from the adventures of a young

professional who courageously investigates, and finally exposes, the

criminal organization." Id., 761 F.2d at 1293.

However, looking at "the actual concrete elements that make up the

total sequence of events," the court found the plot ideas to be less

similar than dissimilar, as the main character in the screenplay does

not, until very late in the story, participate in the investigation that

exposes the criminal organization, and was in fact a dupe of the

criminal organization. Id. In addition, the police lieutenant who

investigates the deaths was seeking to advance his career, while the

main character in the film/book

a doctor investigating the

unexplained brain deaths of young, healthy patients

was

motivated by personal concerns, as her best friend had previously

fallen victim to the organization. Id.

Similarly, in the present case, the general plot features identified by

plaintiff are unprotected because they share only abstract

similarities, and do not reflect objective details that are original to

the plaintiff. As such, they do not support a finding that there is

substantial similarity between "Butterfly Driver" and "Elysium," let

alone a striking similarity.

Characters

Plaintiff argues that the characters of "hero," "villain," and "sick

child" in the film "Elysium" are similar to characters in the

"Butterfly Driver" screenplay. First, with regard to the heroes,

plaintiff claims that there are similarities between Arlo and Max as

to age (35-45 years old); general economic status (impoverished); the

fact that each carries a "keepsake necklace," which he received from

a "special woman from his past;" and the fact that each "suffers from

headaches," and battles a headache in the climax of the story. He

also asserts that each hero has a similar goal Arlo has less than a

week to get from Earth to a satellite world, to get medicine to save

his daughter, while Max has less than a week to get to a satellite

world, to get medical care to save himself and his "girl-friend's"

daughter, and that in order to accomplish that goal, each hero

contacts underworld figures to get I.D. and transport to the satellite

world.

It is true that each hero is within the same age range, but that is not

a protectable character feature. As for general economic status, that

27a

too is a generic idea. Arlo is a war hero and hover-craft pilot who

flies supplies in the Zones outside the "Global State," and is a father

of two who goes on a selfless mission to save his daughter, and

succeeds. By contrast, Max is unmarried, has no children, is on

parole, and works at a local factory making robotic police officers.

Also unlike Arlo, Max is on a self-centered mission to save his own

life at the expense of the lives of others. Essentially, Arlo and Max

are similar only in that each occupies the role of a male protagonist.

It is also true that Arlo and Max both suffer a chronic ailment.

However, in "Butterfly Driver," Arlo has a long history of suffering

from "ice pick" headaches that sometimes "knock him to his knees."

Indeed, Jerry recalls that Arlo was "kicked out" of flight school

because he was considered unfit to fly by virtue of the chronic

headaches. By contrast, Max, the hero of "Elysium," suffers seizures

(not headaches), but this ailment begins only after he downloads the

reboot sequence from Carlyle's brain. Moreover, while Arlo suffers a

headache and Max suffers a seizure in the climatic scenes of the

respective works, those scenes are not similar. In the screenplay,

Arlo and Drexler are fighting in a shuttle when Arlo suffers a

headache, and Drexler shoots him in the neck. In the film, Max

suffers a seizure, which allows Kruger time to catch up, but Max

kills Kruger in a fight.

Nor are the heroes similar with regard to what plaintiff refers to as

"the keepsake necklace." In "Butterfly Driver," Benni gives Arlo a

yellow dreamcatcher for "good luck," and as he faces possible death

near the end of the screenplay, he sees the dreamcatcher in a

"vision." However, he does not die. In "Elysium," a nun gives Max a

locket when he is a child, to remind him of the beauty around him,

and as he is dying from the effect of the downloading of the reboot

sequence, he looks at the locket and remembers Frey (in a dreamlike

way).

Second, plaintiff contends that there are similarities between the

two villains (Delacort in "Elysium" and Drexler in "Butterfly

Driver") in that each had "genetic reprogramming" to make them

appear younger; each orders mass killings of prisoners travelling in

space shuttles; each is rich and lives on a crime-free satellite world;

each sends an agent to apprehend the hero because of information

he possesses; and each is evil but attempts to justify his/her actions

as good for the world.

A number of these features (wealth, living on a crime-free satellite

world, acting with evil intent but seeking to justify actions as good

28a

for the world) are generic features that are not protectable. Nor are

Drexler and Delacort similar in any other way. Drexler is male, and

ex-soldier, a former acquaintance of Arlo's and an imposter who

murdered the real Drexler and his family and stole Drexler's

identity. Drexler is the President of the Global State and owner of

Uberopolis, which he built with the money he inherited as "Drexler."

By contrast, Delacort is female, has no prior relationship with Max,

and holds no position on Earth. She does not own Elysium, but is

intent on staging a coup to take over its presidency. While both

Drexler and Delacort are ruthless authorities (a type of "stock

character"), the similarity ends there.

It is true that both Delacort and Drexler appear younger than they

are. In "Butterfly Driver," Drexler had his DNA "reprogrammed,"

with the result that his "bulging biceps" were three times normal

strength and he appeared younger, but the screenplay also makes

clear that Drexler had his DNA modified because he was really

Midland but was trying to pass as Drexler. By contrast, Delacort

and the other citizens of Elysium routinely use the med bays to

prevent aging and cure disease not to "reprogram DNA" but in

addition, only citizens of Elysium are permitted access to the med

bays. There is nothing comparable in the screenplay.

Third, plaintiff asserts that there is a similarity between the two

works in the use of a "sick child" who will live for less than a week if

medical assistance is not provided. This is an attempt to compare

Franny to Matilda. This idea of the "sick child" is a generic idea that

is expressed differently in the parties' works. In the "Butterfly

Driver" screenplay, Franny appears briefly, has little or no dialogue,

and is cured without much ado when Arlo returns home with the

Drexlerin. In the film "Elysium," Matilda (the daughter of Max's

friend Frey) is intermixed in the drama. She is kidnaped by Kruger,

taken to Elysium, and eventually successfully uses a med bay on the

space station. Moreover, unlike Franny, Matilda' is critical to the

story arc. She is the catalyst for Max's decision to sacrifice himself at

the end of the film.

Plaintiff also contends that there is similarity between what he calls

"secondary characters." The court finds, however, that all these

character comparisons focus on abstract, unprotected traits. None of

the characters are similar at the level of protectable expression. For

example, plaintiff attempts to compare Rianna (lives in a slum.but is

an educated, devoted mother) and Benni (hopeful, beautiful, but

disappointed with men around her) in "Butterfly Driver;" with Frey

(alleged to be a "hybrid" of Rianna and Benni, who lives in an

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uneducated slum, but is educated, tough, and a devoted mother, also

beautiful, hopeful, and disappointed with men around her) in

"Elysium."

The assertion that Frey is a "hybrid" of Rianna and Benni

demonstrates that she is substantially similar to neither of them.

And indeed, Frey and Rianna share no similarities except for the

unprotected characteristic of having an young daughter who is ill.

Moreover, Rianna appears only briefly in the screenplay, but Frey is

a critical character in the film —her friendship with Max is a catalyst

for his decision to sacrifice his own life. Frey and Benni are even less

similar than Frey and Rianna. Benni is a mercenary who guards a

warehouse with her bother Louis. She helps Arlo obtain a fake ID to

enable him to travel to Uberopolis, and gives him a yellow "dream

catcher" for luck. Benni has nothing in common with Frey except

that they both have a vague romantic interest in the male

protagonist —which is never acted on.

Plaintiff asserts that there are similarities between Jerry (a "good"

character who when sent to apprehend the hero by a high-ranking

official, bargains for medical care for his son) in "Butterfly Driver;"

and Kruger (a "bad" character who when sent to apprehend the hero

bargains for a mansion and more before accepting the mission) in

"Elysium." These two characters could not be more dissimilar

(law-abiding vs. outside the law; former friend of the hero's vs. no

former relationship with the hero; attempts to help the hero vs.

attempts to kill the hero). The only similarity

that each is an

"agent" who pursues the protagonist is simply a "stock" character

feature that is not protectable.

Plaintiff also contends that there are similarities between Dylan

(runs an underground base with flight pattern monitors on walls,

sometimes transports immigrants, is disabled with missing arm) in

"Butterfly Driver;" and Spider (runs and underground base, with

flight path monitors on walls, transports immigrants, is disabled,

with paralyzed leg) in "Elysium." As noted above, however, Dylan is

a minor character in the "Butterfly Driver" screenplay, with

virtually no relevance to the story, while Spider in the "Elysium"

film is a central character. The fact that one has a missing arm and

the other has a paralyzed leg does not make them similar as

"characters" in the story.

Finally, it is important to note that there are a number of important

characters in each work that have no parallel in the other. For

example, Tamara plays an important role in "Butterfly Driver," and

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has no possible counterpart in the film "Elysium," while several

characters in the film the nun who raised Max, Carlyle, President

Patel, and the robot police force

have no parallel with the

screenplay.

Setting

Plaintiff identifies the following attributes of the setting, which he

claims is similar to the setting of "Elysium." He describes Uberopolis

as a giant satellite world for the superrich, between 1 and 3 miles in

diameter, with forests and large aquatic features, and a proposed

capacity in the range of 300,000, and which orbits an overpopulated,

impoverished earth. Fantastic medical technologies are available

there, and it is also where a genetically reprogrammed villain lives;

where the final battle transpires; and where prisoners in orange

jumpsuits board shuttles bound for earth.

Plaintiff contends that in contrast to this world is a dystopian Earth

(impoverished, overpopulated ruin of earth), where the poor have

little access to health care; the hero lives in a slum overrun by thugs

and crime; police and military vehicles loom in the sky and brutalize

the poor; Army ships full of "undesirables" are released into the

slums; the poor are brutalized by the government of the satellite

world; rich businesses build manufacturing plants to take advantage

of cheap labor; and the poor live in the ruins of cities in decay.

Plaintiff claims that the "conjoined setting" of rich satellite world

and poor dystopian Earth is a "unique" creation, with no connection

to any prior storyline with all the same features.

The court finds, however, that the setting of the "Butterfly Driver"

screenplay is not similar to the setting of "Elysium," except at the

most abstract level. Moreover, although both the screenplay and the

film use the common idea of "a giant satellite world for the

super-rich," the expressions of these locations is different.

Uberopolis is not exclusive to the "super-rich," as there is a constant

shuttling of ordinary citizens between Earth and Uberopolis, and

Drexler appears in TV ads urging residents of Earth to buy homes

and apartments on Uberopolis. The Global State has "100 per cent

employment" and "almost no crime." While there is some poverty in

the "Zones," the City of Manhattan is portrayed like a typical major

city with apartment complexes, shopping malls, and subways.

Citizens on Earth drive sky-cars, sky-cycles, and hover-jets.

Moreover, advanced medical care is available both on Earth and on

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Uberopolis, and there is no class divide between the populations of

Earth and Uberopolis.

By contrast, Elysium is indeed reserved exclusively for the

"super-rich," and Earth's population is barred from moving to (or

even freely traveling to) Elysium. There are no malls, apartment

complexes, or subways on Earth. The population does not drive

sky-cars. The entire population is heavily unemployed and

extremely poor. They live in shantytowns, with defunct skyscrapers

smoldering in the background. They are policed by a abusive robotic

police force which has no counterpart in the "Butterfly Driver"

screenplay. There is a stark class divide between the population of

Earth and Elysium, and the med bays on Elysium are reserved

exclusively for "citizens" of Elysium.. Nor is there any support for the

assertion that both satellites "feature giant forests and aquatic

features," as Uberopolis has a flora-sphere and an aqua-sphere

beneath the city floor, but there is no description of "giant forests" on

the satellite. Apart from the generalized idea of Earth set in the

future, there are few similarities between the setting of the two

works.

Moreover, a setting that combines "giant satellite world for the

super-rich" and "poor dystopian earth" is not new or original with

the "Butterfly Driver" screenplay. Defendants have provided a

declaration (and report) from their expert Jeff Rovin, who has had a

long career as a professional writer, and has authored more than

100 books, both fiction and non-fiction, including several works

analyzing films and television series in various genres including

science fiction.

The Oxford English Dictionary defines "dystopia" as "[a]n imaginary

place or condition in which everything is as bad as possible."

According to Mr. Rovin, the word "dystopia" was coined by John

Stuart Mill in 1868 to describe the flip side of "utopia." Mr. Rovin

explains that in fiction, "dystopia" is typically the result of military,

political, and economic oppression that results in dehumanization,

often accompanied by poverty and disease. See Declaration of Jeff

Rovin ("Rovin Decl."), Exh. A at 8-9.

Mr. Rovin states that a dystopian future (with special privileges for

the wealthy and powerful) is an exceedingly common feature of the

"prior art," a term he uses to refer to earlier-published works in the

same genre (futuristic science fiction). He cites to H.G. Wells' The

Time Machine, Jack London's The Iron Heel, Aldous Huxley's Brave

New World, Margaret Atwood's Oryx and Crake, and also to the

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films "Metropolis" (1927), "Soylent Green" (1973), "Demolition Man"

(1983), and to the TV series "Rock and Rule" (1983), and "Futurama"

(1999-2013). See Rovin Deci., Exh. A at 9-15.

Apart from this, Mr. Rovin also points out that, strictly speaking,

the "Butterfly Driver" screenplay does not describe a dystopian

world. In the screenplay, citizens of Earth enjoy "100 percent

employment" and "almost no crime." While Earth is "overpopulated,"

it is not unlivable. For example, Manhattan has upscale areas and

slums, apartment complexes, shopping malls, and subways. Citizens

drive sky-cars, sky-cycles, and hover-jets. Mr. Rovin opines that

Earth in plaintiffs screenplay is "futuristic," not "dystopian," and

plainly draws on past science fiction in television series and comic

books. Rovin Deci., Exh. A at 16-21.

Mr. Rovin asserts further that the idea of a satellite as a refuge for

the super-rich is not a novel idea. He cites to the short story

"Abercrombie Station" (1952), the "Star Trek" episode "The Cloud

Minders" (1969), the novel A Wizard in Bedlam (1979), the novel

The Anarch Lords (1981), the August 1981 issue of the comic book

Heavy Metal, the novel The Taking of Satcon Station (1982), the

novel Touch the Stars (1983), the novel The Lagrangists (1983), and

a number of other works. See Rovin Deci., Exh. A at 30-45. He

concludes that far from being new, plaintiffs concepts of wealth and

privilege in connection with space habitats have been a part of

science fiction for decades. Id.

In order to establish similarity in settings, plaintiff must show that

his screenplay and the film "Elysium" express the settings similarly.

However, plaintiff cannot do that, because the screenplay and the

film share nothing more than the generic idea of a futuristic Earth

and an orbiting space station.

Themes

Plaintiff asserts that the two works share at least five central

themes (1) survival without adequate healthcare is inhumane; (2)

the plight of immigrants is brutal; (3) wealth corrupts and divides

us; (4) heroic sacrifice (Arlo for his daughter, Max for Matilda and

mankind); and (5) redemption comes from refusing to give up hope.

First, plaintiff contends that the theme that survival without

adequate healthcare is inhumane is shown by the fact that in both

works, advanced medicine found on the satellite world. However,

apart from a generic "medical" theme, this feature is not similar in

33a

the two works. In the "Butterfly Driver" screenplay, the drug

Drexierin is ordinarily equally available on both Earth and

Uberopolis. The only question is ability to pay and availability

(which is limited for commercial reasons at the time Arlo is

attempting to locate the drug for Franny). In the film "Elysium" the

"advanced medicine" consists of med bays, not drugs, and those med

bays are categorically unavailable to Earth's population, which

forces people who are ill to attempt to travel illegally to Elysium to

access the med bays. There is nothing akin to that in the screenplay,

which has as a theme Arlo's attempt to locate Drexlerin for his

daughter Franny.

Second, the "plight of immigrant" theme is a generic theme that is

not expressed similarly in the two works. "Butterfly Driver" refers to

Arlo's arranging for his family to "repatriate" from the Zones to the

"State" to obtain better healthcare for Franny. However, it describes

nothing similar to the illegal immigration that occurs in "Elysium,"

where people on Earth risk their lives to get on board undocumented

shuttles, hoping to travel to Elysium to access the space station's

med bays, which are restricted to citizens of Elysium.

As for the themes of the corrupting influence of wealth, heroic

sacrifice, and redemption, those are abstract concepts that are not

protectable. Moreover, plaintiff has not established that the themes

in the two works are similar. "Elysium" overtly explores themes of

current relevance in the United States and in Blomkamp's native

South Africa, including class inequality and availability of universal

health care, while "Butterfly Driver" includes none of those themes.

Mood/pace

Plaintiff contends that the film "Elysium" mirrors the mood of the

screenplay "Butterfly Driver," and that the pacing of both works is

similar

fast but not frenetic. He asserts that both works feature

disabled characters, suggesting a brutal government; that both

works are serious, with little humor in narrative, dialog, or action;

that the settings and themes of both works are identical; and that

both works use similar scenes to darken the mood, such as

unnecessary, casual police beating of the heroes.

The bare concept of a pace that is "fast but not frenetic" is

unprotectable. In addition, any elements relating to the mood/pace of

the two works to the extent they are similarly "serious" or "dark"

are stock or generic ideas, or scenes a faire which are not

protectable. See Rice, 330 F.3d at 1177 (overall mood of secrecy and

34a

magic is generic, constitutes scenes a faire, and "merges" with the

work at issue). Thus, any similarity is not indicative of striking or

substantial similarity.

C. Plaintiffs Motion to Exclude Defendant's

Expert and his Expert Report

Plaintiff seeks an order disqualifying defendants' expert Jeff Rovin

and excluding his report. Defendants have established that Mr.

Rovin is "qualified as an expert by knowledge, skill, experience,

training, or education." Fed. R. Evid. 702. Mr. Rovin is

knowledgeable and an expert in the area of "science-fiction genre"

and his testimony has "a reliable basis in the knowledge and

experience of his discipline." Kumho Tire Co. v.Carmichael 526 U.S.

137, 148 (1999).

As such, Mr. Rovin cites to many previously published works to

show that plot features, settings, and characters in "Butterfly

Driver" are not new or original as plaintiff suggests, but reflect

themes that have appeared numerous times in the past. As

defendants' motion makes clear, Mr. Rovin's testimony supports

defendants' argument that many of the plot features, themes,

characters, and other features of the "Butterfly Driver" screenplay

are "stock" or "generic" elements or scènes-à-faire, which are not

protectable; and to support their argument that the "Butterfly

Driver" screenplay and the "Elysium" film are not strikingly similar

or even substantially similar.

CONCLUSION

In accordance with the foregoing, defendants' motion for summary

judgment is GRANTED, and plaintiffs motion is DENIED: In

addition, plaintiffs motion to disqualify defendants' expert Jeff

Rovin is DENIED.

IT IS SO ORDERED.

Dated: October 3, 2014

PHYLLIS J. HAMILTON

United States District Judge

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APPENDIX C

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF

CALIFORNIA

STEVE WILSON BRIGGS, Plaintiff,

NEILL BLOMKAMP, et al., Defendants

No. C 13-4679 PJH v.

JUDGMENT

The court having granted defendants' motion for summary judgment and denied

plaintiffs motion for summary judgment,

It is Ordered and Adjudged

that plaintiff Steve Wilson Briggs take nothing, and that the action be dismissed.

Dated: October 3, 2014

PHYLLIS J. HAMILTON

United States District Judge

36a

APPENDIX D

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STEVE K. WILSON BRIGGS, Plaintiff-Appellant,

SONY PICTURES ENTERTAINMENT, INC.; et al.,

Defendants-Appellees.

No. 14-17175

D.C. No. 4:13-cv-04679-PJH

Northern District of California, Oakland

Appeal From The United States District Court

For The Northern District Of California

On Petition(s) For Rehearing & Rehearing En Banc

[Filed April 6, 2018]

ORDER

Before: THOMAS, Chief Judge, and TROTT and SILVERMAN,

Circuit Judges.

The panel has voted to deny Appellant's petition for rehearing

and Chief Judge Thomas has voted to reject the petition for

rehearing en banc and Judges Trott and Silverman so recommend.

The full court has been advised of the petition for rehearing en

banc and no active judge has requested a vote on whether to rehear

the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en banc

are DENIED.

37a

APPENDIX E

UNITED STATES COURT OF APPEALS, NINTH CIRCUIT

L.A. PRINTEX INDUSTRIES, INC.,

a California Corporation, Plaintiff—counter—defendant--Appellant,

AEROPOSTALE, INC.,

a New York Corporation; Ms. Bubbles, Inc., a California Corporation,

Defendants—Appellees.

No. 10-56187.

Decided: April 09, 2012

Before DOROTHY W. NELSON, RONALD M. GOULD, and

SANDRA S. IKUTA, Circuit Judges.Scott A. Burroughs (argued),

Stephen Doniger, and Regina Y. Yeh, Doniger/Burroughs APC,

Culver City, CA, for the plaintiff-appellant. Deborah F. Sirias

(argued) and Robert M. Collins, Lewis Brisbois Bisgaard & Smith

LLP, Los Angeles, CA; Jeffrey A. Miller, Lewis Brisbois Bisgaard &

Smith LLP, San Diego, CA; Kristin L. Holland, Cory A. Baskin, and

Zia F. Moddabber, Katten Muchin Rosenman LLP, Los Angeles,

CA; and Jay Shapiro, Katten Muchin Rosenman LLP, New York,

NY, for the defendants-appellees.

OPINION

L.A. Printex Industries, Inc. ("L.A.Printex") appeals the district

court's summary judgment order in favor of Aeropostale, Inc. and

Ms. Bubbles, Inc. ("Defandants") in L.A. Printex's copyright

38a

infringement action. Because there are genuine disputes of material

fact on access and substantial similarity, we reverse and remand.

L.A. Printex Industries, Inc. ("L.A.Printex") is a Los Angeles-based

fabric printing company. Ms. Bubbles is a Los Angeles-based

Wholesaler of men and women's apparel. Aeropostale is a

mall-based retailer that purchases apparel from Ms. Bubbles and

other vendors.

In 2002, Moon Choi, an L.A. Printex designer, created a floral

design called C30020. Choi created this design by hand, using a

certificate of registration for Small Flower Group A, a group of five

textile designs that includes C30020. Small Flower Group A is

registered as a single unpublished collection pursuant to 37 C.F.R.

§ 202.3(b)(4)(i)(B).

Between October of 2002 and May of 2006, L.A. Printex sold more

than 50,000 yards of fabric bearing C30020 to its customers, who

are fabric converters. Fabric converters show apparel

manufacturers textile designs, obtain orders for selected designs,

place orders for the designs with printing mills like L.A. Printex,

and send printed fabric to manufacturers that then manufacture

apparel for sale to retailers.

In 2008, L.A. Printex discovered shirts bearing the Aeropostale

trademark and a design similar to C30020. According to Jae Nah,

the President of L.A. Printex, the only difference between C30020

and the design on the Aeropostale shirts is that the latter was

"printed using cruder, lower-quality techniques and machinery."

Aeropostale placed orders with Ms. Bubbles for the shirts in June of

2006, and it offered for sale and sold the shirts between September

and December of 2006. The tags on the shirts say "Made in China."

Ms. Bubbles, however, stated that it had no understanding or

information about the party that created the design resembling

C30020.

On April 8, 2009, L.A. Printex sued Defendants for infringement of

its copyright in C30020. After bringing this infringement action,

L.A. Printex became aware that its copyright registration for Small

Flower Group A contained an error. Two of the five designs, but not

C30020, had been published before the July 17, 2002 date of

registration. On February 22, 2010, L.A. Printex filed an

application for supplementary registration to add April 1, 2002 as

39a

the date of first publication for Small Flower Group A. L.A. Printex

thereafter contacted the Copyright Office to ask about its

registration of a single unpublished work that contained both

published and unpublished designs. The Copyright Office told L.A.

Printex that the unpublished designs, including C30020, would

retain copyright protection but that the previously published

designs would not. On May 10, 2010, L.A. Printex filed a second

application for supplementary registration to remove the two

previously published designs from Small Flower Group A. On June

29, 2010, the Copyright Office approved L.A. Printex's application

and issued a certificate of supplementary registration for Small

Flower Group A; it states February 25, 2010 as the effective date of

supplementary registration.

L.A. Printex and Defendants filed cross-motions for summary

judgment. The district court granted Defendants' motion for

summary judgment and denied L.A. Printex's motion, holding that

there was no genuine issue of material fact as to (1) Defendants'

access to C30020 or (2) substantial similarity between the allegedly

infringing design on the Aeropostale shirts and C30020. The

district court did not address Defendants' alternative argument

that L.A. Printex's copyright registration was invalid because of the

two previously published designs that were initially included in

Small Flower Group A. Defendants then moved for attorneys' fees,

and the district court granted their motion. L.A. Printex timely

appealed to this court.

We have jurisdiction under 28 U.S.C. § 1291. We review the district

court's grant of summary judgment de novo. Ellison v. Robertson,

357 F.3d 1072, 1075 (9th Cir.2004). Summary judgment is

appropriate if, viewing the evidence in the light most favorable to

the nonmoving party, "there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of

law." Fed.R.Civ.P. 56(a); Ellison, 357 F.3d at 1075. A genuine

dispute is "one that could reasonably be resolved in favor of either

party." See Ellison, 357 F.3d at 1075.

III

To establish copyright infringement, a plaintiff must prove two

elements: "(1) ownership of a valid copyright, and (2) copying of

constituent elements of the work that are original." Feist Publ'ns,

Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

40a

The district court granted summary judgment for Defendants

because it concluded that there was no genuine issue of material

fact as to the second element, Defendants' copying of original

elements of C30020.

"Because direct evidence of copying is not available in most cases,"

a plaintiff can establish copying by showing (1) that the defendant

had access to the plaintiffs work and (2) that the two works are

substantially similar. Smith v. Jackson, 84 F.3d 1213, 1218 (9th

Cir.1996). L.A. Printex offered no direct evidence that Defendants

copied C30020. To survive summary judgment, it had to show a

genuine issue of material fact as to both access and substantial

similarity. L.A. Printex contends that the district court erred in

holding that there was no genuine issue as to either access or

substantial similarity. We agree.

"Proof of access requires'an opportunity to view or to copy plaintiffs

work.' " Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th

Cir.2000) (quoting Sid & Marty Krofft Television Prods., Inc. v.

McDonald's Corp., 562 F.2d 1157, 1172 (9th Cir.1977)). "To prove

access, a plaintiff must show a reasonable possibility, not merely a

bare possibility, that an alleged infringer had the chance to view

the protected work." Art Attacks Ink, LLC v. MGA Entm't Inc., 581

F.3d 1138, 1143 (9th Cir.2009). Absent direct evidence of access, a

plaintiff can prove access using circumstantial evidence of either (1)

a "chain of events" linking the plaintiffs work and the defendant's

access, or (2) "widespread dissemination" of the plaintiffs work.

Three Boys Music, 212 F.3d at 482.

L.A. Printex seeks to prove access by showing that C30020 was

widely disseminated. The district court held that there was no

genuine issue of material fact as to Defendants' access because, it

found, "the only evidence of widespread dissemination" was Jae

Nah's declaration stating that L.A. Printex first sold C30020 in

October of 2002 and that L.A. Printex "produced and sold

thousands of yards of fabric bearing [Design Number C30020] to

numerous customers from 2002-2008." The district court concluded

that "such vague and conclusory statements certainly create no

more than a 'bare possibility' that Defendants may have had access

to Plaintiffs Design Number C30020" and that a "bare possibility"

is insufficient to create a genuine issue on access.

However, Nah's declaration statements were not the only evidence

of widespread dissemination. The record also contained a printout,

41a

attached as an exhibit to Nab's declaration, entitled "Sales by Item

Detail" for the period from January 1, 2002 through August 12,

2009. The printout is a list of invoices for C30020 and shows, for

each invoice, the date, invoice number, brief description, customer

name, quantity, and dollar amount. Only fabric sold before

Defendants' alleged infringement is relevant. The sales records

show that L.A. Printex sold more than 50,000 yards of C30020

through May of 2006, before Aeropostale's June orders for the

allegedly infringing shirts.

We must decide whether L.A. Printex's sale of more than 50,000

yards of fabric bearing C30020 creates a genuine dispute of

material fact as to whether C30020 was widely disseminated. We

conclude that it does.

The evidence required to show widespread dissemination will vary

from case to case. In Three Boys Music Corp. v. Bolton, the

plaintiffs argued that their song-one that did not "even make the

top 100 for a single week" and was not released on an album or CD

before the defendants created their allegedly infringing song-had

been widely disseminated during the defendants' teenage years. 212

F.3d at 483. They offered the testimony of three disc jockeys

regarding the song's airtime on radio and television. Id. We upheld

the jury's finding of access "[d]espite the weaknesses of the

[plaintiffs'] theory of reasonable access" but indicated that we

"might not [have] reach[ed] the same conclusion as the jury

regarding access." Id. at 484-85. In Rice v. Fox Broadcasting Co.,

we stated that because the plaintiffs video "only sold approximately

17,000 copies between 1986 and 1999," it could not be considered

"widely disseminated." 330 F.3d 1170, 1178 (9th Cir.2003). In Art

Attacks Ink, LLC v. MGA Entertainment, Inc we held that the

plaintiff had not widely disseminated its T-shirt designs, even

though the designs were displayed (1) at fair booths and kiosks, (2)

on persons wearing the T-shirts, and (3) on the internet. 581 F.3d at

1144. Noting, among other things, that the plaintiff sold only 2,000

T-shirts bearing the designs per year, we held, "A reasonable jury

could not have concluded that there was more than a'bare

possibility' that [the defendant] had access to [the plaintiff]'s

designs," and affirmed the district court's grant of summary

judgment for the defendant. Id: at 1144-45.

The circumstances here differ from those of our prior cases, and so

those cases, though instructive, are not dispositive. In Rice, the

dissemination occurred worldwide, over a thirteen-year period. 330

F.3d at 1173. In Art Attacks Ink, the respective parties sold

different goods, T-shirts and dolls. 581 F.3d at 1142. In contrast,

42a

L.A. Printex and Ms. Bubbles operate in the same industry in the

same Los Angeles area. L.A. Printex, a fabric printing company,

sold more than 50,000 yards of fabric bearing C30020 to fabric

converters. It is a reasonable inference that many or most of these

purchasers were in the Los Angeles area. Apparel vendors like Ms.

Bubbles purchase fabric from fabric printing companies and fabric

converters. In addition, the dissemination of C30020 occurred over

a four-year period immediately preceding Defendants' alleged

infringement. A reasonable jury could find that C30020 was widely

disseminated in the Los Angeles-area fabric industry, and hence

that there was a "reasonable possibility" that Defendants had an

opportunity to view and copy L.A. Printex's design. See Art Attacks

Ink, 581 F.3d at 1143; Three Boys Music, 212 F.3d at 482; see also

Peel & Co. v. Rug Mkt., 238 F.3d 391, 397 (5th Cir.2001) (holding

that plaintiff rug wholesaler had raised genuine issue as to whether

its designer rug "was widely disseminated among those involved in

the United States rug trade"). We hold that L.A. Printex raised a

genuine dispute of material fact on access.

I.]

To determine whether two works are substantially similar, we

apply a two-part test. Smith, 84 F.3d at 1218. The "extrinsic test" is

an "objective comparison of specific expressive elements"; it focuses

on the "articulable similarities" between the two works. Cavalier v.

Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002) (quoting

Krofft, 562 F.2d at 1164). The "intrinsic test" is a subjective

comparison that focuses on " 'whether the ordinary, reasonable

audience' would find the works substantially similar in the 'total

concept and feel of the works.' "Id. (quoting Kouf v. Walt Disney

Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.1994)).

Summary judgment is "not highly favored" on questions of

substantial similarity in copyright cases. Shaw v. Lindheim, 919

F.2d 1353, 1355 (9th Cir.1990) (quoting Narell v. Freeman, 872

F.2d 907, 909 (9th Cir.1989)). Summary judgment is appropriate "if

the court can conclude, after viewing the evidence and drawing

inferences in a manner most favorable to the non-moving party,

that no reasonable juror could find substantial similarity of ideas

and expression." Id. (quoting Narell, 872 F.2d at 909-10). "Where

reasonable minds could differ on the issue of substantial similarity,

however, summary judgment is improper." Id.

The district court compared the copy of C30020 that L.A. Printex

deposited with the Copyright Office to Defendants' allegedly

infringing shirts and concluded that "no reasonable juror could find

43a

that the two works are substantially similar." The district court

reasoned that the "observable similarities" between the designs

were "of a surface nature only," in that "both designs represent

small-scale overall floral patterns of approximately the same size."

The district court then stressed "several critical differences"

between the designs: (1) the flowers, stems, and leaves on C30020

are "far more detailed" than those on the allegedly infringing shirts,

"which have softer edges and are more impressionistic in

appearance"; (2) on C30020, "multiple shades of one color are used

to give the flowers their definition and sharper edges, while

multiple shades of green are used to give the leaves and stems their

definition and clean lines," but on the allegedly infringing shirts, by

contrast, "the flowers are of one uniform color, with the leaves and

stem a single shade of green"; (3) C30020 "contains an overall

background pattern of almost lace-like flowers that is completely

lacking" on the allegedly infringing shirts; and (4) the groupings of

flowers, stems, and leaves within a vertical row are "spaced much

farther apart" on C30020 than on the allegedly infringing shirts.

Notwithstanding these observations by the district court, our

comparison of C30020 and Defendants? allegedly infringing design

leads us to conclude that a reasonable juror could find that the two

designs are substantially similar.

First, we apply the extrinsic test. Because copyright law protects

expression of ideas, not ideas themselves, we distinguish protectible

from unprotectible elements and ask only whether the protectible

elements in two works are substantially similar. See Cavalier, 297

F.3d at 822. In comparing fabric designs, we examine the

similarities in their "objective details in appearance," including, but

not limited to, "the subject matter, shapes, colors, materials, and

arrangement of the representations." See Id. at 826 (comparing "art

works").

Original selection, coordination, and arrangement of unprotectible

elements may be protectible expression. See Feist Publ'ns, 499 U.S.

at 362; Cavalier, 297 F.3d at 826-27; Metcalf v; Bochco, 294 F.3d

1069, 1074 (9th Cir.2002) ("Each note in a scale, for example, is not

protectable, but a pattern of notes in a tune may earn copyright

protection."). For this reason, the Second Circuit has rejected the

argument that, "in comparing [fabric] designs for copyright

infringement," a court must "dissect them into their separate

components, and compare only those elements which are in

themselves copyrightable." Knitwaves, Inc. v. Lollytogs Ltd., 71

F.3d 996, 1003 (2d Cir.1995) ("[I]f we took this argument to its

logical conclusion, we might have to decide that there can be no

44a

originality in a painting because all colors of paint have been used

somewhere in the past." (internal quotation marks omitted)). In

Knitwaves, Inc. v. Lollytogs Ltd., the court concluded that the

defendant's "Leaf and Squirrel sweaters" were substantially similar

to the plaintiffs sweaters, citing, among other things, the

defendant's selection of "the same two fall symbols," leaves and

squirrels, and its arrangement of the symbols "as felt appliques

stitched to the sweaters' surface," "on strikingly similar

backgrounds," and "in virtually the same color scheme." Id. at 1004.

Similarly, in Hamil America, Inc. v. GFI, the Second Circuit held

that the defendant's and plaintiffs floral patterns were

substantially similar because "GFI ha[d] duplicated Hamil

America's selection of clustered flowers and leaves, its coordination

of these elements in particular spatial combinations, and its

arrangement of these design elements on a tossed pattern that

appears in repeat." 193 F.3d 92, 103 (2d Cir.1999). More

specifically:

Both patterns depict small clusters of flowers and leaves. The

shapes of the flower petals and the leaves are virtually identical,

and feature similar defining line work and highlights in the flowers

and leaves. Both patterns depict leaves that do not appear to be

attached to any of the flowers. Both patterns are "tossed," which

means that they have no top or bottom and are non-directional, and

appear in repeat.

Id. at 102.

Though the Second Circuit's "ordinary observer" and "more

discerning ordinary observer" tests differ somewhat from our

two-part extrinsic/intrinsic test for substantial similarity, its

reasoning, at least in the context of fabric designs, is persuasive,

and it guides our comparison of the designs in this case. C30020 is a

repeating pattern of bouquets of flowers and three-leaf branches.

The idea of a floral pattern depicting bouquets and branches is not

protectible, and C30020 has elements that are not protectible, for

example the combination of open flowers and closed buds in a single

bouquet or the green color of stems and leaves. See Satava v.

Lowry, 323 F.3d 805, 811 (9th Cir.2003).4 However, L.A. Printex's

original selection, coordination, and arrangement of such elements

is protectible. See Feist Publ'ns, 499 U.S. at 362; Metcalf, 294 F.3d

at 1074. Because there is "a wide range of expression" for selecting,

coordinating, and arranging floral elements in stylized fabric

designs, "copyright protection is'broad' and a work will infringe if

it's 'substantially similar' to the copyrighted work." Mattel, Inc. v.

MGA Entm't, Inc., 616 F.3d 904, 913-14 (9th Cir.2010). That is,

45a

"there are gazillions of ways" to combine petals, buds, stems, leaves,

and colors in floral designs on fabric, in contrast to the limited

number of ways to, for example, "paint a red bouncy ball on black

canvas" or make a lifelike glass-in-glass jellyfish sculpture. See Id.;

Satava, 323 F.3d at 812.

Our comparison of Defendants' allegedly infringing design and

C30020 reveals objective similarities in protectible elements. Both

patterns feature two types of small bouquets of flowers, one

featuring the largest flower in profile view, the other featuring the

largest flower in an open-face view, and both emerging from three

buds. Both patterns also depict small, three-leaf branches

interspersed between the two types of bouquets. The shape and

number of the flower petals and leaves are similar in the two

designs. See Hamil Am., 193 F.3d at 102. The two types of bouquets

are arranged at similar angles in both designs, and the bouquets

and branches are coordinated in similar spatial combinations on a

grid of similar scale and layout. See id. at 103.

Moreover, the color arrangement of C30020 in white/berry is

markedly similar to the color arrangement of Defendants' design.

Though mere variations of color are not copyrightable, and L.A.

Printex's copyright in C30020 is for the design rather than a

specific color arrangement, the similarities in color arrangements

are probative of copying. See 37 C.F.R. § 202.1(a); Soptra Fabrics

Corp. v. Stafford Knitting Mills, Inc., 490 F.2d 1092, 1094 (2d

Cir.1974) ("The appearance in one of defendant's fabrics of colors

identical to plaintiffs is additional evidence of actual copying, as

well as another factor leading to the conclusion that the aesthetic

appeal of the fabrics is the same." (internal quotation marks,

citation, and alteration omitted)); 1 Melville B. Nimmer & David

Nimmer, Nimmer on Copyright § 2.14 (Matthew Bender rev. ed.

2011) ("[S]imilarity of color arrangements may create an inference

of copying of other protectible subject matter.").

The differences noted by the district court do not compel the

conclusion that no reasonable juror could find that Defendants'

design is substantially similar to C30020. Rather, in light of the

similarities described above, the differences support the opposite

conclusion, that there is a genuine dispute of material fact on

substantial similarity. See 4 Nimmer on Copyright § 13.03[B] [1][a]

("It is entirely immaterial that, in many respects, plaintiffs and

defendant's works are dissimilar, if in other respects, similarity as

to a substantial element of plaintiffs work can be shown.").

46a

It is true that the flowers, stems, and leaves in Defendants' design

are less detailed than those in C30020, and that Defendants' design

does not use multiple shades of color to give the flowers and leaves

definition as does C30020. But a rational jury could find that these

differences result from the fabric-printing process generally and are

"inconsequential," see F.W. Woolworth Co. v. Contemporary Arts,

Inc., 193 F.2d 162, 165 (1st Cir.1951), or could credit Jae Nah's

assertion that these differences result in part from "print[ing ]

using cruder, lower-quality techniques and machinery," cf. Peel &

Co., 238 F.3d at 397-98 (finding genuine issue of material fact on

substantial similarity where plaintiff claimed that differences

between two rugs were "relatively small" and "consistent with

shortcuts taken to make a cheap copy"). Moreover, because we

conclude that stylized fabric designs like C30020 are properly

entitled to "broad" copyright protection, it is not necessary that

Defendants' design be "virtually identical" to infringe. See Mattel,

616 F.3d at 914.

In granting summary judgment for Defendants, the district court

also reasoned that Defendants' design lacks the background pattern

in C30020 and that the groupings of flowers, stems, and leaves are

spaced farther apart in C30020 than in Defendants' design. But a

to infringe that work. It is enough that the defendant appropriated

a substantial portion of the plaintiffs work. See Newton v.

Diamond, 388 F.3d 1189, 1195 (9th Cir.2004); Cavalier, 297 F.3d at

825; cf. Sheldon v. Metro—Goldwyn Pictures Corp., 81 F.2d 49, 56

(2d Cir.1936) (Hand, J.) ("[I]t is enough that substantial parts were

lifted; no plagiarist can excuse the wrong by showing how much of

his work he did not pirate."). A rational jury could find that despite

some differences between Defendants' design and C30020, the

similarities in the selection, coordination, and arrangement of

bouquets and three-leaf branches are sufficiently substantial to

support an inference of copying. Accordingly, we hold that objective

similarities in the expressive elements of Defendants' design and

C30020 present a genuine dispute of material fact under the

extrinsic test.

At the intrinsic stage, "we ask, most often of juries, whether an

ordinary reasonable observer would consider the copyrighted and

challenged works substantially similar." Mattel, 616 F.3d at 914.

But on a summary judgment motion, a court's attempt to apply this

subjective and fact-oriented standard, bypassing decision by the

trier of fact, is not correct. See, e.g., Shaw, 919 F.2d at 1359

(holding that in copyright action involving literary works,

47a

satisfaction of extrinsic test is sufficient to survive summary

judgment on issue of substantial similarity).fi As our precedent has

evolved, the extrinsic test considers the objective expressive

similarities in two works and leaves the subjective evaluation of

such similarities to the intrinsic test. Apple Computer, Inc. v.

Microsoft Corp., 35 F.3d 1435, 1142 (9th Cir.1994). A subjective

evaluation of the expressive similarities in two fabric designs, here

intended for public consumption as clothing apparel, is best suited

for the trier of fact. Thus, in light of our conclusion that the

competing designs present a triable issue of fact under the extrinsic

test, on the facts here involving stylized floral fabric designs, the

issue of substantial similarity must go to the jury.

Defendants contend that even if the district court erred in

concluding that there was no genuine dispute of material fact on

access or substantial similarity, summary judgement was proper on

the alternative ground that L.A. Printex's copyright registration in

C30020 is invalid. We may affirm a grant of summary judgment "on

any grounds supported by the record." Lamps Plus, Inc. v. Seattle

Lighting Fixture Co., 345 F.3d 1140, 1143 (9th Cir.2003). But the

record does not show that L.A. Printexs copyright registration is

invalid. Defendants are not entitled to summary judgment on this

alternative ground.

infringement action. 17 U.S.C. § 411(a); Reed Elsevier, Inc. v.

Muchnick, 130 S.Ct. 1237, 1241 (2010). "A certificate of registration

satisfies the [registration requirement], regardless of whether the

certificate contains any inaccurate information," unless (1) "the

inaccurate information was included on the application for

(2) "the inaccuracy of the information, if known, would have caused

the Register of Copyrights to refuse registration." 17 U.S.C. §

411(b)(1). Thus we have held that "inadvertent mistakes on

registration certificates do not invalidate a copyright and thus do

not bar infringement actions, unless the alleged infringer has relied

to its detriment on the mistake, or the claimant intended to defraud

the Copyright Office by making the misstatement." Urantia Found.

v. Maaherra, 114 F.3d 955, 963 (9th Cir.1997); see also, e.g., Jules

Jordan Video, Inc. v. 144942 Canada, Inc., 617 F.3d 1146, 1156 (9th

Cir.2010); Lamps Plus, 345 F.3d at 1145; 2 Nimmer on Copyright §

7.20 [B][1] ("[A] misstatement or clerical error in the registration

application, if unaccompanied by fraud, should neither invalidate

48a

the copyright nor render the registration certificate incapable of

supporting an infringement action.").

A copyright owner may file an application for supplementary

registration "to correct an error in a copyright registration or to

amplify the information given in a registration." 17 U.S.C. § 408(d);

37 C.F.R. § 201.5. "The information contained in a supplementary

registration augments but does not supersede that contained in the

earlier registration," 17 U.S.C. § 408(d), and the earlier registration

is not "expunged or cancelled," 37 C.F.R. § 201.5(d)(2).

The Copyright Act permits the registration of multiple works as a

single work. 17 U.S.C. § 408(c)(1). For purposes of registration as a

single work, copyright regulations distinguish between published

works and unpublished works. See 37 C.F.R. § 202.3(b)(4)(1). A

published collection of works must be "sold, distributed or offered

for sale concurrently." united Fabrics Int'l, Inc. v. C & J Wear, Inc.,

630 F.3d 1255, 1259 (9th Cir.2011). For unpublished works, "there

is no such requirement." Id. A group of unpublished works may be

registered as a single work if it consists of "all copyrightable

elements that are otherwise recognizable as self-contained works,

and are combined in a single unpublished 'collection.' " 37 C.F.R. §

202.3(b)(4)(i)(B).6

Defendants argue that L.A. Printex's copyright registration is

invalid because Small Flower Group A was registered as an

unpublished collection but included two designs that were

published before the work was registered. L.A. Printex argues that

its erroneous inclusion of the two previously published designs in

Small Flower Group A does not invalidate its registration because it

did not intend to defraud the Copyright Office and because the

earlier registration through a supplementary registration. We agree

with L.A. Printex.

The July 2002 certificate of registration for Small Flower Group A

contained an error-the inclusion of two previously published

designs in a work registered as an unpublished collection. But that

error in itself does not invalidate the registration or render the

certificate of registration incapable of supporting an infringement

action. 17 U.S.C. § 411(b); Lamps Plus, 345 F.3d at 1145; 2 Nimmer

on Copyright § 7.20[B][1]. There is no evidence that L.A. Printex

knew that the two designs had been published at the time it

submitted its application for copyright registration, or that it

intended to defraud the Copyright Office. See 17 U.S.C. §

411(b)(1)(A); Lamps Plus, 345 F.3d at 1145. Upon learning of its

49a

registration error, L.A. Printex corrected it. It filed an application

for supplementary registration, communicated with the Copyright

Office about the error through email and phone correspondence,

and filed a second application for supplementary registration.

Moreover, the Copyright Office issued a certificate of

supplementary registration. Its decision to do so after it was told of

the two designs' prior publication shows that the error was not one

that "if known; would have caused the Register of Copyrights to

refuse registration." 17 U.S.C. § 411(b)(1)(B). L.A. Printex's

registration error does not bar its action against Defendants for

infringement of its copyright in C30020.

We REVERSE the district court's grant of summary judgment,

VACATE the award of attorneys' fees, and REMAND for further

proceedings consistent with this opinion.

FOOTNOTES

.1. Defendants object to the sales printout's admissibility as a

business record and argue that L.A. Printex's differing

characterizations of the quantity of yards sold make the document

untrustworthy. The district court stated that it had either overruled

or not ruled on the parties' objections to evidence. Viewing the sales

printout in the light most favorable to L.A. Printex, we may

consider it as part of the district court record. The numbers speak

for themselves, and if credited, show sales of more than 50,000

yards.

See Knitwaves, 71 F.3d at 1002-03; Folio Impressions, Inc. v.

Byer California, 937 F.2d 759, 766 (2d Cir.1991).

We compare Defendants' design to the deposit copy of C30020.

Because we conclude that a rational jury could find that the two

designs are substantially similar, it is not necessary for us to

analyze the similarities between Defendants' design and fabric

swatches of C30020. But on remand, the district court—and the

jury—may consider fabric swatches of C30020 in applying our

two-part test for substantial similarity, so long as the district court

determines that the digital prints that L.A. Printex deposited with

the Copyright Office constitute "one complete copy" of C30020, and

that the fabric swatches are also "copies" of C30020. See 17 U.S.C. §

101 (defining copies as "material objects, other than phonorecords,

in which a work is fixed by any method now known or later

developed, and from which the work can be perceived, reproduced,

50a

or otherwise communicated, either directly or with the aid of a

machine or device"); id. § 113(a) ("[T]he exclusive right to reproduce

a copyrighted pictorial, graphic, or sculptural work in copies under

section 106 includes the right to reproduce the work in or on any

kind of article, whether useful or otherwise."); id. § 408(b)(1)

(requiring deposit of "one complete copy" for registration); Three

Boys Music, 212 F.3d at 486 (stating that "our definition of a

'complete copy' is broad and deferential").

In Satava, we held that "ideas, first expressed by nature, are the

common heritage of humankind, and no artist may use copyright

law to prevent others from depicting them." 323 F.3d at 812. Here

too, we stress that we will not give copyright protection to ideas

recurring in nature, such as flowers with brightly colored petals,

stems, and buds, because brightly colored flowers exist in nature.

Unlike Satava's jellyfish sculptures, however, C30020 is "stylized

and not lifelike," and depicts not flowers as they appear in nature

but an artistic combination of floral elements that is sufficiently

original to merit copyright protection. See Hamil Am., 193 F.3d at

101. What we held in Satava about "the common heritage of

humankind" is reinforced by the Supreme Courts recent decision in

Mayo Collaborative Services v. Prometheus Laboratories, Inc.,

holding that laws of nature are not patentable but that an

application of a law of nature may merit patent protection if it

"contain[s] other elements or a combination of elements sufficient

to ensure that the patent in practice amounts to significantly more

than a patent upon the natural law itself."

S.Ct.

, No.

10-1150, 2012 WL 912952, at *4_5 (Mar. 20, 2012). We commend

the general proposition that our laws of intellectual property do not

give strong protection to one who merely copies or recites what

nature has provided.

In Cavalier, we left open the question whether the "Shaw rule"

applies to art work. 297 F.3d at 826. Our decision today suggests

that at least on the facts here presented, it does.

6. A combination of such elements is considered a "collection" if:(1)

The elements are assembled in an orderly form;(2) The combined

elements bear a single title identifying the collection as a whole;(3)

The copyright claimant in all of the elements, and in the collection

as a whole, is the same; and(4) All of the elements are by the same

author, or, if they are by different authors, at least one of the

authors has contributed copyrightable authorship to each element.

Registration of an unpublished "collection" extends to each

copyrightable element in the collection and to the authorship, if

51a

any, involved in selecting and assembling the collection.37 C.F.R.

202.3(b)(4)(i).

GOULD, Circuit Judge:

Additional material

from this filing is

i the

a vailablen

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.