IN THE SUPREME COURT OF THE UNITED STATES
`
`STEVE WILSON BRIGGS,
`
`Petitioner,
`
`V.
`
`SONY PICTURES ENTERTAINMENT, INC.,
`
`NEJLL BLOMKAMP, ET AL,
`
`Respondents.
`
`ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
`
`STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`STEVE WILSON BRIGGS
`
`Petitioner
`
`In Propria Persona
`
`4322 Chico Ave.
`
`Santa Rosa, CA 95407
`
`Phone: (510) 200 3763
`
`Email: snc.stevegmai1.com
`
`Petitioner
`
`JUL_______
`
`FRECEIVE]D-
`
`3- 2O
`
`
`
`su5
`
`

`

`I
`QUESTIONS PRESENTED
`
`Whether by failing to clarify and update internet widespread dissemination
`
`access guidelines, U.S. courts imperil the rights of U.S. intellectual property
`
`owners.
`
`Whether a decision based on the falsified report of a man who later
`
`confessed on FOX News that he was a "fixer" for President Clinton, can stand and
`
`set U.S. copyright precedent.
`
`Whether a ruling that ignores superseding law, to base itself in
`
`subordinate law, can be valid.
`
`Whether a plaintiff has the right to state his own copyright claims, or if the
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`court has authority to omit and substantially alter a plaintiff's claims?
`
`

`

`11
`
`PARTIES TO THE PROCEEDING:
`
`The Petitioner is Steve Wilson Briggs.
`
`The Respondents are Neill Blomkarnp, Sony Pictures Entertainment. Inc.,
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`Media Rights Capital II LP, TriStar Pictures Inc., and QED International
`
`

`

`111
`
`TABLE OF CONTENTS
`
`QUESTIONS PRESENTED
`
`Page
`
`. i
`
`TABLEOF CONTENTS.................................................................................
`
`TABLE OF AUTHORITIES..................................................................................iv
`
`PETITION FOR A WRIT OF CERTIORARI ....................................................... 1
`
`OPINIONSBELOW.......................................................................................1
`
`JURISDICTION............................................................................................1
`
`STATUTORY PROVISIONS INVOLVED ................................................................ 1
`
`STATEMENT...............................................................................................2
`
`Proceedings In District Court..................................................................3
`
`Proceedings In Court Of Appeals...................................................................5
`
`REASONS FOR GRANTING THE PETITION................................................... 7
`
`THE QUESTION PRESENTED IS OF EXCEPTIONAL
`
`IMPORTANCE, AND THIS CASE IS A SUPERIOR VEHICLE
`
`FOR ADDRESSING THIS QUESTION (The Need to Clarify the
`
`Concept of Widespread Dissemination).............................................. 7
`
`THE LOWER COURTS' RULINGS IGNORE THE
`
`PETITIONER'S CITATION OF SUPERSEDING AND
`
`PREVAILING LAW, AND RELY ON SUBORDINATE I
`
`REVERSEDLAW..................................................................10
`
`

`

`'V
`III. THE LOWER COURT DECISIONS CONFLICT WITH THIS
`
`COURT, OTHER CIRCUITS, AND OTHER NINTH CIRCUIT
`
`DECISIONS (And Relies On Rejected "Dissection Analysis,"
`
`And Fails To Test Objective Similarity)..........................................13
`
`The Court Improperly Used "Dissection Analysis,"
`
`Rejected By L.A. Printex.........................................................13
`
`The Court Failed To Test Objective Similarities of Protectable
`
`Elements..............................................................................15
`
`IV. THE DISTRICT COURT OMITTED, DISMANTLED, ALTERED &
`
`RECONFIGURED PETITIONER'S COPYRIGHT CLAIMS
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`(Denying Petitioner the Right to State and Defend His Own
`
`r
`CopyrightClaims).....................................................................................16
`
`The Order Omits Dozens of Other Copyright Claims..................20
`
`The Order Paraphrases "Expert" Rovin's Falsified Report,
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`and Makes Same or Similar Misstatements..............................21
`
`V. THE JUDGEMENT IS BASED ON THE FALSIFIED REPORT
`
`OF AN ELITE "FIXER ............................................................................. 24
`
`CONCLUSION.................................................................................................... 26
`
`APPENDIX
`
`AppendixTable....................................................................................la
`
`A = Opinion (Memorandum) of the Court of Appeals..................................2a
`
`B = Order of the District Court...............................................................5a
`
`

`

`V
`C = Judgment of the District Court.......................................................35a
`
`D = Order Denying Petition for Rehearing En Banc.................................36a
`
`E = L.A. Printex Indus. Inc. v Aeropostale, Inc.,
`
`102 U.S.P.Q.2nd (BNA)(9th Cir 2012) Order..........................37a
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Page
`
`Art Attacks Ink v MGA Entmt Inc., 581 F.3d (9th Cir. 2009)...............8, 9, 10, 11, 12
`
`Briggs v Blomkamp, et al, 4:13-cv-04679 PJH ............................................1, 3, 7
`
`Cavalier v. Random House, Inc. 297 F.3d 915 (9th Cir. 2002)...................................14
`
`Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)..........14
`
`Jason v. Fonda, 698 F.2d (9th Cir. 1982)................................................................8, 10
`
`Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1003 (2d Cir. 1995) ............................ 14
`
`Kumho Tire Co. v. Carmichael, 526 U.S. 137,148 (1999)..........................................25
`
`L.A. Printex Industries. Inc. v Aeropostale, Inc., 102 U.S.P.Q.2nd (BNA)
`
`(9th Cir. 2012)................................................2, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16
`
`Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904, 913-14 (9th Cir.2010).......14
`
`Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir.2002)...............................................14
`
`Rice v. Fox Broadcasting (9th Cir. 2003)...............................................................11, 12
`
`Satava v. Lowry, 323 F.3d.............................................................................15
`
`Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000)...........10, 11, 12
`
`

`

`V1
`STATUTES
`
`US Code
`
`17 U.S.C. (§§ 101 et seq.)................................................................................................
`28 U.S.C. § 1254(1)
`28 U.S. Code § 1338.....................................................................................1, 3
`
`1
`
`TheCopyright Clause .................................................................................... 9
`
`U.S. Constitution
`
`Other
`
`Nimmer on Copyright § 13.03[B] [1][a].......................................................................15
`
`TIMEMagazine............................................................................................3
`
`

`

`1
`PETITION FOR A WRIT OF CERTIORARI
`
`Petitioner Steve Wilson Briggs respectfully petitions for a writ of certiorari to
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`review the judgment of the United States Court of Appeals for the Ninth Circuit.
`
`OPINIONS BELOW
`
`The panel opinion (memorandum) of the Court of Appeals is not published, but
`
`it is included in Petitioner's Appendix at A (p la to 3a). The denial of the petition for
`
`rehearing en bane is included in Petitioner's Appendix at D (p 53a). The district
`
`court order granting Defendants' motion to dismiss is not published (Briggs v
`
`Blomkamp, et al, 4:13-cv-04679 PJH), but included in Petitioner's Appendix at B (p
`
`4a to 51a). The district court judgment is included in Petitioner's Appendix at C (p
`
`52a).
`
`JURISDICTION
`
`On October 3, 2014, the district court granted the defendants' motion to
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`dismiss. Plaintiff Steve Wilson Briggs (Petitioner) filed a timely Notice of Appeal to
`
`the Ninth Circuit Court of Appeals on October 31, 2014, filed a timely appeal on
`
`February 9, 2018, and filed a timely substitute-corrected brief on February 23, 2015.
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`On February 28, 2018, a Ninth Circuit Court panel affirmed the dismissal. On
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`March 13, 2018, Petitioner filed a timely petition for rehearing en bane. On April 6,
`
`2018, a Ninth Circuit Court panel denied the petition. This Court has jurisdiction
`
`under 28 U.S.C. § 1254(1).
`
`STATUTORY PROVISIONS INVOLVED
`
`28 U.S. Code § 1338; 17 U.S.C. (§§ 101 et seq.)
`
`

`

`2
`STATEMENT
`
`In this matter, Petitioner Steve Wilson Briggs alleges that the Respondents
`
`accessed his screenplay on a popular online social network, then misappropriated
`
`his ideas and produced a blockbuster film. The lower courts held that merely
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`posting a work online is insufficient to establish widespread dissemination;
`
`underpinning the district court order, upheld by the Court of Appeals.
`
`The Ninth Circuit represents the fifth largest economy in the world; ground
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`zero of our new digital economy; home of Amazon.com, seller of 65% of all books sold
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`in America—through one website. And in this new economy, unknown artists, using
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`services like CDBaby.com and Create Space. com, can post their songs and books on
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`iTunes and Amazon, and have their wares available around the world. Facts that
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`upend the circuit court's current thinking.
`
`The rules of commerce and access have changed. Yet the Ninth's "widespread
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`dissemination" theory fails to consider the new array of online publishers, social
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`networks, and niche markets thriving in this economy, while it tacitly sanctions
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`corporate access and infringement of undiscovered artists.
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`But perhaps more problematic than the Ninth's outdated access theory, in this
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`case, was the lower court's refusal to cite or apply standards set in the Ninth's
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`prevailing, most contemporary and comprehensive widespread dissemination
`
`opinion, L.A. Printex Indus. Inc. v Aeropostale, Inc., 102 U.S.P.Q.2nd (BNA)(9th Cir
`
`2012), and the fact that the lower court decisions relied on a falsified expert report,
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`produced by a self-confessed "fixer" for President Bill Clinton.
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`

`

`41
`A. PROCEEDINGS IN DISTRICT COURT
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`On October 8, 2013, the Petitioner filed a Complaint for copyright infringement
`
`against the Respondents, in the United States District Court for the Northern
`
`District of California (Briggs v Blomkamp, et al, assigned to the honorable Phyllis J
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`Hamilton in the Oakland Division). Under 28 U.S. Code § 1338 copyright disputes
`
`fall under federal jurisdiction. The Petitioner's lawsuit alleged that the 2013 film
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`Elysium was an infringement of his screenplay, Butterfly Driver. Petitioner alleged
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`that Respondent Neill Blomkamp likely accessed Petitioner's screenplay in 2007,
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`while it was posted on Trigger Street (triggerstreet.com). In 2002, Trigger Street
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`was created and endorsed by Academy Award winning actor Kevin Spacey. In 2004
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`TIME Magazine voted Trigger Street one of the internet's 50 best websites. By 2009
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`Trigger Street had grown to 400,000 members. From 2002 to 2014 Trigger Street
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`was the world's first and only social network for screenwriters and filmmakers. Six
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`days after the Petitioner filed Notice of Appeal, Trigger Street went out of business,
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`without explanation.
`
`The Petitioner's 38-page first amended complaint (FAC) detailed what may
`
`be the most extensive infringement claim in film history. Petitioner attached
`
`screenplays of both works to his FAC, and claimed that Elysium infringed on his
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`screenplay's plot (on an impoverished Earth, a poor hero must get to a giant
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`satellite city for the super-rich, to obtain life-saving medicine), setting characters
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`(including a poor hero with a unique headache condition, who must get to a satellite
`
`city for the super-rich to get
`
`

`

`4
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`medical aid), hero's affliction headache, hero's keepsake necklace, central
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`conflict, catalyst, crisis, climax, inciting incident, themes, and more.
`
`During discovery, after receiving and reading a copy of the Respondents'
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`expert witness report (captioned: Expert Report Of Jeff Rovin), on,June 12, 2014,
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`The Petitioner filed a motion to disqualify (exclude) Jeff Rovin's report, due to the
`
`rampant fraud and falsification it contained. The Petitioner's motion contained
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`about 12 examples of Rovin's fraud. The motion also noted that Mr. Rovin falsified
`
`and misstated his qualifications in his his CV, and noted that Rovin was not a
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`copyright expert and had no known education beyond high school. The court
`
`deferred judgment until Motions For Summary Judgment could be heard.
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`On July 30, 2014, Petitioner filed a Motion for Summary Judgment (MFSJ).
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`On July 30, 2014 the Respondents also filed a Motion for Summary
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`Judgment. That same day the Respondents filed the sworn Declaration Of Jeff
`
`Rovin in Support of the Respondents' Motion For Summary Judgment. The signed
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`Expert Report of Jeff Rovin (which the Petitioner moved to exclude) was attached to
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`the Declaration.
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`On October 3, 2014, the honorable Judge Phyllis J Hamilton entered her Order
`
`re motions for summary judgment (and Judgment): granting the Respondents'
`
`Motion for Summary Judgement, and denying the Petitioner's motion to
`
`disqualify/exclude the expert report of Jeff Rovin, and denying the Petitioner's
`
`motion for summary judgment.
`
`

`

`5
`
`The Petitioner observed numerous problems with the district order:
`
`The order ignored and did not contemplate L.A. Printex Indus. Inc. v
`
`Aeropostale, Inc., which revises current standards and methods for assessing
`
`widespread dissemination;
`
`The court failed to assess objective similarities in protectable elements, as
`
`required by L.A. Printex Indus. Inc. v Aeropostale, Inc.;
`
`The order hinged on Jeff Rovin's falsified report;
`
`The order relied on discredited dissection analysis;
`
`The order omitted, dramatically altered and reconfigured Petitioner's copyright
`
`claims.
`
`B. PROCEEDINGS IN COURT OF APPEALS
`
`October 31, 2014, Petitioner filed Notice of Appeal to the Ninth Circuit, and
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`submitted his substitute-corrected brief on February 23, 2015. The Petitioner's brief
`
`made the following nine arguments:
`
`The court's access ruling errs as it failed to apply access standards from L.A.
`
`Printex v. Aeropostale (9th cir, 2012) and relies on reversed case law, and holds
`
`plaintiff to a separate standard.
`
`The court erred in its substantial similarity test; by omitting L.A. Printex the
`
`court failed to test "objective similarities in protectable elements" & failed to
`
`give plaintiff "broad" protection.
`
`

`

`N.
`The court erred in using dissection analysis, (discredited by L.A. Printex); thus,
`
`failed to analyze objective similarities in protectable elements.
`
`The order errs as it is predicated on the omission & misstatement of central
`
`facts & claims.
`
`The court erred in not choosing a case law standard to define "striking
`
`similarity".
`
`The court erred in its direct comparison ruling.
`
`The order errs as it did not test for "striking similarity"
`
`The court erred in granting summary judgment when the credibility of the
`
`parties is at issue.
`
`The order errs as the court misused its discretion and prejudicially ruled
`
`against plaintiff.
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`Three years after filing his Notice of Appeal, on February 28, 2018, the Court
`
`of Appeals issued an unpublished Memorandum that affirmed the district court
`
`order and judgment. The brief memorandum ignored Petitioner's arguments #2, #3,
`
`#4, #5, #6, #7, and #8, and summarily rejected the petitioners #1 and # 9 arguments,
`
`without explication.
`
`On March 13, 2018, Briggs submitted a Petition For Rehearing And Rehearing
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`En Banc to the Court of Appeals.
`
`On April 6, 2018, the Court of Appeals issued an Order denying the petition for
`
`rehearing.
`
`

`

`7
`REASONS FOR GRANTING THE PETITION
`
`I
`
`THE QUESTION PRESENTED IS OF EXCEPTIONAL
`
`IMPORTANCE, AND THIS CASE IS A SUPERIOR VEHICLE FOR
`
`ADDRESSING THIS QUESTION
`
`(The Need to Clarify the Concept of
`
`Widespread Dissemination)
`
`In the fall of 2013, news of the Petitioner's lawsuit against the Respondents
`
`(Briggs v Blomkamp, et al) spread quickly. It was soon carried on hundreds of news
`
`and legal websites around the world. One of the most interesting of these articles
`
`was written by attorney Audrey Jing Faber (J.D.), in an article entitled Copyright
`
`Disputes in the Digital Age (12/18/2014). Faber wrote:
`
`"...The court's holding in Briggs is consistent with the
`general rule that mere posting of a work on the Internet does
`not constitute widespread dissemination, but it nonetheless
`raises the interesting question of how courts will continue to
`address and define what constitutes widespread dissemination
`in the context of the Internet. There are multitudes of ways that
`someone can publish or share content on the Internet, including
`on websites, blogs, video-sharing sites such as YouTube, and on
`social media. Today's technology, and mobile devices in
`particular, make that content extremely accessible - even third
`graders can share and access content. That simply was not the
`case ten years ago, and cases are increasingly reflecting that
`trend...
`Briggs struck me as interesting because there is not much
`case law addressing when and under what circumstances
`posting a copyrighted work on the Internet constitutes
`widespread dissemination... [l]t is inevitable that we
`will see more copyright plaintiffs arguing that defendants had
`access to their work via the Internet."
`
`

`

`In her article, almost four years ago, Faber identified the imperative question
`
`raised by this case: in this age of e-commerce, do America's digital creators and
`
`marketers deserve a widespread dissemination access theory that contemplates
`
`today's online market and access realities?
`
`Although she accurately identifies the problem, as an attorney, Faber failed to
`
`notice that not only did the district order fail to shed light on widespread
`dissemination, it also failed to give any consideration to Briggs' widespread
`
`dissemination argument—by not so much as mentioning L.A. Printex Industries.
`
`Inc. v Aeropostale, Inc., the widely known and central case cited by Briggs (literally
`
`the first case cited in the petitioner's MFSJ). Rather, the district cited obscure and
`
`older cases: Jason v. Fonda, 698 F.2d 966, 967 (9th Cir. 1982), and Art Attacks Ink v
`MGA Entertainment Inc.,, 581 F.3d at 1144 (9th Cir. 2009).
`
`Ironically, after the district ignored the Petitioner's citation of L.A. Printex v
`
`Aeropostale, when the Petitioner brought this oversight to the circuit court, the
`
`Court of Appeals also ignored the Plaintiffs arguments and citation of L.A. Printex
`v Aeropostale —but they cited L.A. Printex to reject the Petitioner's arguments for
`
`considering that very case. (See Appendix A, p3a, ¶J 4, 5)
`Contemplating L.A. Printex Indüs. Inc. v Aeropostale, Inc. is of paramount
`
`importance for every Ninth Circuit infringement case, because L.A. Printex goes
`
`beyond Art Attacks Ink v MGA Entertainment Inc.,, 581 F.3d at 1144 (9th Cir.
`
`2009), and refines the metrics for assessing the widespread dissemination, and
`
`instructs courts to contemplate factors such as whether the parties were engaged in
`
`

`

`60,
`the same industry at the same time (as Briggs and Respondent Blomkamp were
`
`engaged in the same industry—film production—at the same time).
`
`L.A. Printex Indus. Inc. v Aeropostale, Inc. makes reasoned clarifications to
`
`existing law. Whereas, in this matter, the Court of Appeals' unpublished
`
`memorandum merely rejects the Petitioner's first and last arguments, then wholly
`
`ignores seven of the Petitioner's nine arguments?
`
`The current guideline in the Ninth, that merely posting a work on a website is
`
`not sufficient to establish widespread dissemination, is far too vague, and doesn't
`
`address imperative questions, such as: (1) If Amazon.com has 300 million active
`
`users, can someone argue that a book or film posted there is not widely
`
`disseminated (as Amazon is just a website)?; (2) If so, does that mean artists who
`
`have exclusive contracts with companies like iTunes, TIDAL and Netflix cannot
`
`claim widely disseminated status to protect their copyrighted work from
`
`infringement?; (3) Is the widely disseminated designation equitably conferred in the
`
`Ninth, or reserved for celebrities? (4) Would a jury see a "reasonable possibility" of
`
`access if a work is posted on an online social network, exclusively for screenwriters
`
`and filmmakers, with a few hundred thousand members?
`
`The Ninth Circuit produces more patents and copyright registrations than
`
`anywhere in the U.S.A.
`
`The copyright holders of this circuit deserve clarity —to promote and protect
`
`creativity and innovation, as directed by the Copyright Clause of the U.S.
`
`Constitution.
`
`

`

`10
`II
`
`THE LOWER COURTS' RULINGS IGNORE THE PETITIONER'S
`
`CITATION OF SUPERSEDING AND PREVAILING LAW, AND
`
`RELY ON SUBORDINATE I REVERSED LAW
`
`In the district court, Petitioner's motion for summary judgment relied on L.A.
`
`Printex Industries. Inc. v Aeropostale, Inc., (9th Cir 2012), while the Respondents
`
`motion for summary judgment relied on Art Attacks Ink v MGA Entertainment Inc.,,
`
`581 F.3d at 1144 (9th Cir. 2009). Conversely, The Petitioner did not cite Art Attacks
`
`Ink, and the Respondents did not cite L.A. Printex v Aeropostale. The district court,
`
`however, cited the Respondents' Art Attacks Ink and Jason v. Fonda, 526 F. Supp.
`
`774, but did not consider or mention the Petitioner's citation of L.A. Printex
`
`Industries. Inc. v Aeropostale, Inc. which is now the most commonly cited of these
`
`cases. In so doing the district court ignored and discarded superseding and
`
`prevailing law, in favor of citing subordinate law.
`
`In the circuit court, perhaps wrongly believing that the appellate court would
`
`clearly see (or perhaps already understand) how L.A. Printex Industries. Inc. v
`
`Aeropostale supersedes and effectively reverses Art Attacks Ink, Three Boys Music
`
`Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000) and Jason v. Fonda, the
`
`Petitioner's argument only mentioned this "reversal",
`
`without development, in order to focus on the repercussions of the L.A. Printex
`
`opinion (see Petitioner's appellate brief, pp 13-17)."
`
`

`

`11
`
`The Petitioner informed the circuit court that the district court ignored the
`
`Petitioner's arguments and citations of L.A. Printex Indus v Aeropostale. However,
`
`the Court of Appeals, out of hand, upheld the district court's oversight by simply
`
`stating "We reject Briggs's argument. ..," without clarification, in a brief 3 or 4 page
`
`memorandum (See Appendix A, p 3a ¶ 5).
`
`To help this court understand how L.A. Printex reverses Art Attacks Ink, etc.,
`
`the Petitioner refers this Court to ¶J 13-17 of the L.A. Printex Industries. Inc. v
`Aeropostale Inc opinion (See Appendix E p 40a ¶ 4 to 42a ¶ 1). The aforementioned
`text of the L.A. Printex v Aeropostale opinion establishes:
`
`Prior to the L.A. Printex v Aeropostale opinion, Art Attacks, Three Boys
`
`Music, and Rice v. Fox Broadcasting (9th Cir. 2003) were the prevailing
`
`guidelines to test widespread dissemination; thus, the defendant
`
`(Aeropostale) cited those cases to counter the Plaintiff's (L.A. Printex
`
`Industries) access claims. The district court ruled in favor of the defendant.
`
`The Court of Appeals, referring to Art Attacks Ink, Three Boys Music and
`
`Rice v Fox Broadcasting opined that: "The circumstances here differ from
`
`those of our prior cases, and so those cases, though instructive, are not
`
`dispositive."
`
`The Court then explained why those previous cases are unacceptable,
`
`writing: "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."
`
`

`

`12
`Thus, with that previous statement, the court clearly ruled that Art
`
`Attacks Ink, Three Boys Music and Rice v Fox were not appropriate models
`
`to assess all widespread dissemination.
`
`The Circuit Court then provided a new method to assess widespread
`
`dissemination: assessing whether or not the litigants were engaged in the
`
`same industry, in the same area.
`
`The preceding shows that L.A. Printex v Aeropostale: (1) expressly contemplates
`
`the provisions of Art Attacks Ink, Three Boys Music, and Rice v Fox; (2) ruled that
`
`Art Attacks Ink, Three Boys Music, and Rice v Fox Broadcasting, were not
`
`dispositive in all cases; (3) created a new metric to assess widespread dissemination
`
`that considers whether the litigants were engaged in the same industry, at the
`
`same time.
`
`By contrast, the prior cases (Art Attacks, Three Boys, Rice) could not
`
`possibly contemplate the subsequent L.A. Printex v Aeropostale opinion; nor could
`
`they offer the expanded considerations of L.A. Printex. Thus, Art Attacks Ink, Three
`
`Boys Music and Rice are superseded by L.A. Printex Industries v Aeropostale Inc.
`
`Further, since L.A. Printex v Aeropostale was reversed and remanded because the
`
`district court had only considered prior law (Art Attacks Ink, Three Boys Music, etc.)
`
`and not the new guidelines outlined in the new opinion, L.A. Printex v Aeropostale
`
`effectively vacates Art Attacks, Three Boys, Rice, etc., since any subsequent order
`
`that does not contemplate the expanded provisions of L.A. Printex would also be
`
`expected to be reversed.
`
`

`

`13
`By not contemplating L.A. Printex Industries v Aeropostale Inc., although so
`
`advised by the Petitioner, the district court's ruling was improper and incorrect.
`
`The lower courts also ignored the petitioner's citation of L.A. Printex v Aeropostale
`
`concerning proper methods to assess substantial and striking similarity.
`
`Once advised by the Petitioner that the district court did not consider L.A.
`
`Printex Industries v Aeropostale Inc., The Court of Appeals should have reversed
`
`and remanded the case. It did not. Therefore, the Court of Appeals decision is
`
`incorrect.
`
`III
`
`THE LOWER COURT DECISIONS CONFLICT WITH THIS
`
`COURT, OTHER CIRCUITS, AND OTHER NINTH CIRCUIT
`
`DECISIONS,
`
`(And Relies On Rejected "Dissection Analysis," And Fails To Test
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`Objective Similarity)
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`By failing to contemplate and apply the principles of L.A. Printex Indus. Inc. v
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`Aeropostale, Inc., 102 U.S.P.Q.2nd (BNA)(9th Cir 2012), the lower courts
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`overlooked L.A. Printex's substantial and striking similarity assessment.
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`A. The Court Improperly Used "Dissection Analysis,"
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`Rejected By L.A. Printex
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`The lower court's decisions are improper because the district court, and the
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`Respondents' expert Jeff Rovin used dissection analysis to assess striking and
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`substantial similarity (Rovin also improperly applied these techniques, by
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`

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`14
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`misstating and changing the Petitioner's claims), and because the court and the
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`Respondents' expert failed to test "objective similarities in protectable elements."
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`L.A. Printex v Aeropostale expressly rejects dissection analysis for assessing
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`striking or substantial similarity, and requires that the court assess "objective
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`similarities in protectible elements." The lower courts failed to uphold these
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`precepts.
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`1 23 of L.A. Printex Indus v Aeropostale Inc the Ninth Circuit rejects dissection
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`analysis, as the court wrote (see Appendix E, 43a ¶ 4):
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`"Original selection, coordination, and arrangement of
`unprotectible elements may be protectible expression. See Feist
`PubPns, 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 originality in a painting because all colors of
`paint have been used somewhere in the past." (internal quotation
`marks omitted))."
`
`Then ¶[ 26-29 of L.A.Printex v Aeropostale (Appendix E, p 44a ¶ 3 to 45a ¶ 4)
`confirm the protectability of the object similarities of protectable elements, stating:
`
`¶ 26. "...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, "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
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`

`

`15
`
`a red bouncy ball on black canvas" or make a lifelike
`glass-in-glass jellyfish sculpture. See id.; Satava, 323 F.3d at 812.
`¶ 27. "Our comparison of Defendants' allegedly infringing design
`and C30020 reveals objective similarities in protectible
`elements...
`¶ 29. "...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."
`
`B. The Court Failed TO Test Objective
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`Similarities of Protectable Elements
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`The Petitioner advised both the district court and the circuit court of L.A.
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`Printex v. Aeropostale. The Petitioner also advised the Court of Appeals that the
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`district overlooked L.A. Printex v Aeropostale, which contemplates new metrics for
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`assessing widespread dissemination, discredits dissection analysis, and affirms the
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`need to test objective similarities of protectable elements. The Petitioner also
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`advised the circuit court that both the district court and the Respondents' expert
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`used dissection analysis, and failed to test objective similarities of protectable
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`elements (See pp 17-19 appellate brief), under the argument headings reading:
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`"2. The Court Erred In Its Substantial Similarity Test; By Omitting
`L.A. Printex The Court Failed To Test "Objective Similarities In
`Protectable Elements" & Failed To Give Plaintiff "Broad"
`Protection;"
`
`

`

`IN
`"3. The Court Erred In Using Dissection Analysis, (Discredited By
`L.A. Printex); Thus, Failed To Analyze Objective Similarities In
`Protectable Elements."
`
`Testing objective similarities of protectible elements requires examining each
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`of a plaintiffs copyright claims (without dissection), then comparing these claims to
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`the Defendant's work.
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`This was never done.
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`It should also be observed that, as a highly creative work, the Petitioner's
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`screenplay was entitled to broad protection, as contemplated by L.A. Printex v
`Aeropostale (etc.). The Petitioner requested this protection. Both lower courts
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`ignored the Petitioner's request, thus, denying due protection.
`
`Due to its failure to apply the precepts of L.A. Printex v Aeropostale, namely by
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`improperly using discredited dissection analysis, failing to test objective similarities
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`in protectable elements, and not granting Petitioner's work broad protection, the
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`district order is misguided and incorrect.
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`Moreover, by not reversing and/or remanding the case to the lower court to
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`correct these deficiencies, the Court of Appeals' unpublished memorandum is
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`mistaken and incorrect.
`
`Iv
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`THE DISTRICT COURT OMITTED, DISMANTLED, ALTERED
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`& RECONFIGURED PETITIONER'S COPYRIGHT CLAIMS
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`(Denying Petitioner the Right to State and Defend His Own
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`Copyright Claims)
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`

`

`17
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`An idea is not copyrightable. An expression is copyrightable. An expression is a
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`minimally creative grouping of a few ideas or features. Thus, if you were to sketch a
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`big-headed, baldish boy in shorts and a short sleeve shirt with a zig-zag stripe on it,
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`you might infringe on Charles Schulz's copyrighted character, Charlie Brown.
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`In the Petitioner's first amended complaint and motion for summary judgment,
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`he provided numerous detailed, unique arrangements of features comprising his
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`specific copyright claims. For example, in ¶J 46, 47 of the FAC, the Petitioner
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`claimed the following 14 features formed the plot of h