And with that said, let's look at our passage before us, 1 Corinthians chapter one. I'll begin reading here in 1 Corinthians chapter one at verse 10. We're going to be going to verse 25 today. And this particular installment of our study is simply referred to as the wisdom of God. You'll see that in a few minutes, why I chose to refer to this particular installment as the wisdom of God. You'll see that later on. But let's begin at verse 10. 1 Corinthians chapter one verses 10 through 13. Paul writes, now I plead with you, brethren, by the name of our Lord Jesus Christ, that you all speak the same thing and that there be no divisions among you but that you be perfectly joined together in the same mind and in the same judgment. For it has been declared to me concerning you, my brethren, by those of Chloe's household, that there are contentions among you. Now, I say this, that each of you says, I am of Paul or I am of Apollos or I am of Cephas or I am of Christ. Is Christ divided? Was Paul crucified for you? Were you baptized in the name of Paul? And so Paul has written a letter. He's written a letter to a church in Corinth, Greece. And as we saw when we looked at the introduction in chapter one verses one through nine, he had begun this particular letter with words of encouragement. He had actually made it very clear and we saw this last time we were together that he's writing to a church that is made up of genuinely saved people. And these people, these Corinthians are actually what we would call abiding fruit of his ministry. One of the marks of their salvation was their eager expectation of being with the Lord Jesus Christ. And the reason that they would have this eager expectation of being with the Lord Jesus is because they have a genuine love for him. They're looking forward to being with him. It's like they're aware of what Jesus said in John 14 when Jesus in verses one through three there said, let not your heart be troubled. You believe in God, believe also in me and my Father's house are many mansions.  And if I go and prepare a place for you, I will come again, receive you unto myself that where I am there you may be also. And they've grabbed hold of that. They've grabbed hold of that promise that Jesus said that he would come and receive them unto himself and it has done something in their life. It has caused them to actually embrace him with the depth of faith and love. And he's been speaking about that and said that they had that eager expectation to be with Jesus Christ. Philippians 3.20 says our citizenship is in heaven and we eagerly await a savior from there, the Lord Jesus Christ. So Paul was encouraging them. He encouraged them by telling them that God would confirm them to the end, that God would establish them firmly, that he would keep on working in them. And the reason that God will keep on working in them is because God is faithful to his promises. It's one of the things that we as believers need to hold fast to. We have to hold fast to the promises of God and God has given us promises and we can trust him. Like it says in the Old Testament book of Numbers 2319, God is not a man that he should lie and neither the son of man that he should repent. Has he said and shall he not do it? Or has he spoken? Shall he not make it good? So you can trust God because God is good to his word and these people are holding on to the word of God. And the word of God has been to them faithful, even as he says in verse nine, God is faithful by whom you were called into the fellowship of his son Jesus Christ our Lord. And so he began in the first portion of his letter to give them words of encouragement. And that lasted nine verses. Now he's about to give them words of correction which are basically going to last the rest of the book, 16 chapters of it. And he's gonna be sharing with them concerning their need to live as those who are united in faith in Jesus Christ. Now it's interesting as he begins to deal with the problems of the Corinthian church that the root of the problem is simply put division. There's divisions that have cropped up and the heart of their division is that they have preferences. They have preferences of certain teachers. And that's why he begins in verse 10 by saying, Now I plead with you, brother, and by the name of our Lord Jesus Christ that you all speak the same thing and that there be no divisions among you but that you be perfectly joined together in the same mind and in the same judgment. So he says, I don't want there to be any divisions. The word division split or tear. I don't want the body of Christ torn. I don't want there to be splits amongst you. He's saying I don't want these divisions to continue. The reason I'm writing is that these divisions may not continue because they have been. See, like he says, the divisions that are occurring are over the teachers but there's also division that's occurring over immorality or going to the law before heathens. There are divisions that are related to marriages or meets offered to idols, the conduct of women in church, Lord's upper spiritual gifts, the resurrection. There's a disunity on the essential things so Paul has to write to correct all of these things because of the error. So as we look at this and as we begin Paul's pleading for unity, division is destroying the Corinthian church and the division is rooted in self-righteousness and religious appearances. It's interesting that unity is a very important thing to the Lord as a matter of fact, when Jesus in John 17 is praying what has been called his high priestly prayer. Remember with me what he says in John 17 versus 20 and 21 when he says my prayer is not for them alone. I pray also for those who will believe in me through their message that all of them may be one father, just as you are in me and I am in you. May they also be in us so that the world may believe that you have sent me. May they be united, may they be one that the world may be one is what Jesus was praying. And so as believers we need a unified and united effort to overcome the works of the enemy. Satan is the great divider and Satan sows discord in the body of Christ. In order that he might create division and undermine the work of God. In Mark chapter three versus 24 and 25 Jesus said if a kingdom is divided against itself that kingdom cannot stand. If a house is divided against itself that house cannot stand. And when division is sewn into the body of Christ when churches begin to have and experience division then it undermines the work of God because the church of God is to be united in our effort to reach an unsaved world. But when you have people who are petty and are divided over a variety of things as we'll see here it causes us not to be effective. And so the first thing Paul begins to speak about is division. And his desire according to verse 10 is that they'd be perfectly joined together in the same mind and the same judgment. Now when he speaks that he may be perfectly joined together that word perfectly is used for mending torn nets. It's also used as a word to describe a surgeon mending a joint. He's saying I want your factions to be repaired. May your state of mind and opinions and sentiments be repaired. Now as he's speaking about this division I want you to see what happened verse 11. It's been declared to me concerning you my brethren by those of Chloe's household that there are contensions among you. How interesting is that? He named the people who reported the problem. In our day a lot of people wouldn't even go so far as to share that there's a problem let alone expect their names to be repeated. It's interesting for the last 2000 years Chloe's household has been named as the one Chloe has been named as the one who basically reported the division. We know who reported it. A woman by the name of Chloe and she's saying listen there's a problem in the Corinthian church Paul that has to be dealt with. There's a disunity there. And she tells him what's taking place. Verse 12, each of you says I'm of Paul or I'm of Apollos or I'm of Cephas or I'm of Christ. And what's happening is you're having people who are dividing over teachers. And he speaks and gives the name. Some felt that they were loyal to Paul. I'm of Paul. They preferred the apostle Paul. Now this is interesting we can make this practical because the church can do that and does do that to this day. Of course it does. We don't need to say I'm of Paul or I'm of Apollos or I'm of Cephas or I'm of Christ. All we need to do is put in the name of our favorite teacher. You know I'm of Chuck. I'm of Raul. No, no. Um, you know I'm of Greg. People do that. I'm of. And what happens when you begin to unite behind a man is you begin to have your favorites and you begin to divide the body of Christ. We'll see that in some detail. But some had a special love and loyalty and preference for Paul. Paul's ministry was one of teaching and preaching. But you'll see that there are accusations that have been lodged against Paul that he's boring and difficult to listen to. He mentions that in 2 Corinthians chapter 10 verse 10 where some accusations were made against him and this is what they said. His letters say they are weighty and powerful but his bodily presence is weak and his speech contemptible. This guy's kind of like an odd looking guy who can't speak. And so there were some would say no, wait a minute. Paul is an apostle of the Lord Jesus Christ. He's a great teacher. He's a great evangelist. This is a courageous warrior and they began to line up behind Paul. Some were lining up behind a young man by the name of Apollos. Apollos was a great speaker. He was a very intelligent and eloquent, charismatic communicator. And that's what scripture says concerning him. Acts 1824 says Apollos was born in Alexandria and was an eloquent man and mighty in scriptures. And so there are those who say, man, nobody can preach like Apollos.  I mean, you have an occasion in the book of Acts where a young man named Utikus is there listening to Paul preach and preach for a long time to the point where he climbed into a window sill and was trying to keep himself awake and he fell out of the window and landed on the ground and died. He was bored to death.  But you have Apollos, on the other hand, who's young and charismatic and eloquent and I'm certain he had an incredible personality. So compared to aged Paul, you have this young guy who's just so full of energy and eloquence and so people are drawn to this guy. So they say, I'm of Apollos. Then you have Cephas who's also known as the Apostle Peter and there are those who say, no, I like to hang with the older guys because he was one of the original 12. And so it may be that some of the Corinthians had been influenced for Christ or even saved under the ministry of the Apostle Peter. And so in their mind, he's one of the old timers and everybody else just doesn't do it right. Even Paul just doesn't do it right because Paul wasn't part of the original 12. So if I'm gonna go back, I might as well go with the one that was there and so I'm gonna listen to the Apostle Peter. And then you have some were saying, and this is one of the more interesting ones. Well, I'm of Christ. Now, what's interesting about that when they say, I'm of Christ is they're claiming to follow and only follow as well as just listen to Jesus. One of the commentators I use as I study was pointing out that it's probable that they were saying, I really don't need to be part of any physical group of people called the church. I can follow God on my own. I don't need to be in the church. I don't have to go to church to worship. I can worship him in my own heart, in my own place at any of the time. I'm a follower, a true follower of Jesus. I've encountered followers of Jesus who think like that, who claim to be followers of Jesus and in reality what they're saying is, oh well, I've heard it, they've said it. I can go out into the hills. I can go into the mountains. I can be out there in the wilderness, in the desert. I can be out there by the ocean. And I hear the waves crashing and I think of how powerful God is. And I think, why don't you climb in the water and stay under it for a while?  I mean, are you kidding me? What they're trying to say is I don't need the physical entity called the body of Christ because I've got my own thing going with God. And that's just, it doesn't work that way. You see, true spirituality produces humility. And true spirituality is earmarked by unity. False spirituality produces strife and division. What happens is it becomes my church against your church. On Monday, I encountered somebody who introduced himself to me by saying, hi, my name is so-and-so. I'm from your competition. And he was speaking of a church. I'm from your competition. And I was wondering if he's from the church of Satan because I'm not in competition. He didn't mean it that way, but that's what he said. I'm from the church that is your competition. Now, one of the marks of true spirituality is unity and a rejection of division. We're one in Jesus Christ. False spirituality produces strife, produces division. It does become my church against your church. And so Paul asks a question in verse 13, is Christ divided? Was Paul crucified for you or were you baptized in the name of Paul? When he asks, was Paul crucified for you, were you baptized into me? He's simply saying, am I your savior? Am I your Messiah? Did I give up my life to save you? You see, no man should get the glory that belongs only to Jesus Christ. One of my favorite scriptures is found in John 3, verse 30. It's a simple scripture. He must increase and I must decrease. That's the mentality of the apostle Paul. It's all about Jesus Christ and it's not about Paul. It's not about Apollos. It's not about Cephas and it's deeper than someone just claiming to know Jesus Christ. And so he's saying, there's only one who should get all the glory and that's Jesus himself. And so he says, verse 14, I thank God that I baptized none of you except these two individuals, Christmas and Gaius. Let's anyone should say that I had baptized in my own name. Yes, I also baptized the household of Staphonus. Besides, I do not know whether I baptized any other. Christ didn't send me to baptize, but to preach the gospel. Not with wisdom of words, lest the cross of Christ should be made of no effect. Now, when he says, I thank God that I baptized none of you except Christmas and Gaius. At that time, Greeks would be seated under a teacher and they would identify their teacher as what was called the discoverer of truth. Now, Paul is what you would call a proclamer of the gospel, but he was not the originator of the gospel. Some people might look at him as if he originated the gospel, but Paul is not one who originated, he received it. When I was in a class in secular college many years ago, one of the books that I was reading for our comparative religions class was a book that said that the apostle Paul originated the gospel, which is error because Paul makes it very clear that he received from the Lord Jesus Christ this message called the gospel. He didn't originate it and he didn't create it.  And so he's saying, I didn't originate the gospel message. What I am is it's messenger. In other words, I'm not trying to draw souls to myself through giving them my message and then baptizing them and making them my followers. What I'm doing is I'm teaching them the truth and encouraging them to follow Jesus Christ. Turn to chapter three please for just a moment and look at verses five through seven with me. In chapter three here he says, who then is Paul and who is Apollos but ministers through whom you believed as the Lord gave to each one. And I planted Apollos watered but God gave the increase so then neither he who plants is anything nor he who waters but God who gives the increase. In chapter four he continues that thought in verses one and two, let a man so consider us as servants of Christ, stewards of the mysteries of God. And moreover it's required in stewards that one be found faithful. So I didn't originate this message. I'm a steward of the message and my responsibility is to remain faithful to the one who gave me this message. And so I didn't baptize anybody other than Christmas and Gaius. Yes, I in verse 16 back in chapter one I did have something to do in the ministry in my ministry by baptizing Stephanus but to be honest with you, I didn't keep records of it. I don't know if I baptized anyone else. But verse 17 is a powerful scripture and I've underlined it in my Bible and it's been underlined for many years. Christ didn't send me to baptize but to preach the gospel. Not with the wisdom of words, lest the cross of Christ should be made of no effect. I've been sent to preach. That's what he's saying. I've been sent to preach, to preach the gospel. It is a responsibility, Paul is saying, that God has given to me that is of the highest import. In chapter nine verse 16 he says it like this, when I preach the gospel I cannot boast for I am compelled to preach, woe to me if I do not preach the gospel. My job he's saying, my calling is to present the gospel of Jesus Christ. You see, when he wrote to the Romans he said it's, the gospel is the power of God unto salvation and all who believe to the Jew first and then also he says to the Gentile. The gospel is the power of God. One of the biggest mistakes I see in the church today is people are not teaching and preaching the full gospel of Jesus Christ. Many churches are caught up preaching messages that really are more of man's encouragement to other men but not necessarily messages that are actually well just going verse by verse scripture. I was listening to somebody just today as I was after church and I was eating my lunch and I turned on a program to hear somebody speaking and the absence of the word of God is what really impressed me about that entire ministry. I watched it for 25 minutes and there were three scriptures that were quoted and the rest were his opinions on how God gives you a path and a plan and how God wants to work in your life and but there was no substance there. Some churches have gotten caught up with entertainment, others have gotten caught up with being built on music you know and they have some fantastic songs I must admit but when you're witnessing to somebody pull out a tambourine and sing the gospel to them and sing a song to them and see how effective that is. When you have a Jehovah's Witness knock on your door open it up and say our God is an awesome God and see if you can lead him to Christ that way. I mean singing is wonderful, we love it, I love to worship the Lord in song but you worship in spirit and truth you need the word of God and Paul made it very very clear that his ministry was to preach the gospel. Why? Because he says in verse 18 the message of the cross is foolishness to those who are perishing but to us who are being saved it is the power of God. It is the power of God. The cross is foolish, the message of salvation through Jesus Christ, the message of what Jesus did by dying on that cross is to the unbeliever of foolish message, that word foolish interestingly enough literally original Greek is moronic.  So to the individual who was unsaved it's moronic to them, this gospel message is foolishness, it's moronic and he says it the message of the cross is foolishness to those who are perishing. Now we preach the gospel in a day when preaching is looked at as being impolite and even offensive to some. Because that gospel message contains in it a call. A call to change your mind. When you read your New Testament very often the word that is translated repent the Greek word is metanoia. The word metanoia speaks of a change of mind. And so when you're preaching repentance the message is actually calling people to change their mind. You change your mind by being confronted with God's mind. God's mind is declared to us in his word. So he speaks his word to us and we compare the way we think with what he says. Now he's not saying I'm willing to negotiate with you you can keep some of what you believe about me and I'll keep the other that I think is true. No, he says no, you're wrong and I'm right. Now that sounds arrogant. And when you stand up and you say thus saith the Lord unless a man is born again he cannot enter into the kingdom of heaven. You have people get so upset. This John 3.16 controversy with Tim Tebow where people are so upset over that. Why are they so upset? I'll tell you why my opinion, if you don't mind is because they've seen plenty of actions of people making touchdowns. That's been going on a long time. It's been going on a long time. I've watched football for a long time and I can tell you guys who have these celebrations in the end zone and all of that that's been going on for a while and there have been for years people who hit their knee and looked down. I mean, you see that in high school football. You see that in college football. You see that all the time. Anybody who watches sports will see that. You don't see it on the basketball court. There was one, a pitcher, Oral Hersheiser who did that and became famous for it when he won a game for the Dodgers and everybody ought to thank God when the Dodgers win at least one game. But when Oral did that, you know I've been a fan of the Dodgers since 1959. It's a long time, guys. I went to the Coliseum to watch Duke Snyder play. That's how old I am. Some of you know it. Yes, sir. And so my dad took me there to watch him. So I've been watching the Dodgers for a long time and this'll hurt some of you and the Yankees before that. I was wearing a Yankee sweatshirt up here the other day and one of my brothers said, What is that, man? What's that? That's a Yankees, man. Best team money can buy. But celebrations. They've gone on for a long time and moments of thanking God for giving me the strength to perform a task, it's pretty common to Christians. So what's the problem with Tebow? Why is everybody mocking? Why so many people mock him? Because Tebow's sincere. And many of the other ones, they're, yeah, yeah, thank you, Jesus. And then they're down in the champagne later on and so the world loves hypocrisy. But somebody who actually really believes that he's thanking God. Now that's something else. And the world sees the difference between sincerity and hypocrisy. The world loves the hypocrite because it makes the world look better. But when there's somebody who's sincere saying thank you, Jesus, for the strength you gave me to be able to do this, they have a real problem with that. Which I found very unusual, but it's very true. And so what you have is you have a message that calls people to have a relationship with God and when it is really preached, when you actually say, in order to know God, you need to repent, mm-mm, that's impolite. How can you actually say that to me? And there are those, of course, who are offended by it. But to those who have embraced that message, the message reveals the power of transformation. It reveals the power of forgiveness. That man or that woman who was living that life that people knew was so in the world. That one who loved to drink and looked for occasions to drink and couldn't find an occasion, created one. So he could drink, now is saved, and doesn't drink anymore. And people say, what is that all about now? It's the power of God unto salvation. It's that holy spirit who indwells you and transforms you from the inside out. It is that power, it's not those rules on the outside that you tack up on a wall and you read them every morning. I'm gonna do this today. I'm gonna think positive thoughts today.  It's the knowledge that God with his finger has written his word on the tablet of your heart and has changed you from the inside, transformed you, took away those things that you used to do, took away that anger that you used to have, that lust that you used to fight with, and took away the hunger and that appetite for the drugs and the alcohol and everything else. It's the power of God unto salvation. Water baptism doesn't save you. It symbolizes the salvation you've experienced in Jesus Christ. It didn't save me. I got baptized in December of 1950. December of 1950, I was four months old. That didn't save me. I sinned for 20 years. When I got big enough to walk, I started to sin. When I got able to speak, I started to sin. I learned to lie and I learned to do all those things that you do over the course of years. The water baptism didn't save me. It was a clean conscience in Jesus Christ. It was the power of the Holy Spirit resident within that changed my life and made me radically different and also gave me appetite for things that were righteous, whereas before I didn't have a desire to read the word of God. I didn't have a desire to really pray unless I needed something. I didn't have Christian friends. I certainly wouldn't go out and talk about Jesus with anybody. Are you kidding me? But when you get saved, before you know it, I desire your word more than my daily food. When you get saved, you start having an embrace of fellowship with those who love Jesus Christ so you can speak about him. When you get saved, you have conversations with God that aren't just words you memorized from some book or were taught by some teacher in some class. You now have heart to heart conversations with God. You say, this is where I'm at. This is what's going on. I need your help, Lord. I need your strength.   And you say, Lord, in my own strength, I can't make it, but you and I together, with you and me, all things are possible. And then you tell other people about that. Hey, you know what? I was blind. Now I see. Now I hear. I was literally dead and now I'm alive. What are you talking about? Well, you know what? I've been reading the word of God and Jesus Christ said that he would give life to the dead. And I was spiritually dead. And you know what? He's made me alive. The power of God into salvation. It's the power of God that brings light to the darkened conscience. It's the power of God that gives life to the spiritually dead. It's the power of God that softens a hardened heart. It's the power of God that brings peace now and gives hope for your future. And that's the gospel of Jesus Christ. So to those who are perishing, those who are spiritually dead, it's moronic. But to those who are being saved, it's the power of God revealed. And it reveals his ability to save any who come to him in repentant faith. Well, in verse 19 going on, it is written, I will destroy the wisdom of the wise and bring to nothing the understanding of the prudent. Man's wisdom cannot save anybody. The mystery of God with man revealing grace and mercy through the cross is beyond man. The essence of the gospel isn't simply a wise way to live. The essence of the gospel is the revelation of salvation. And those who are perishing do not have the fear of the Lord. And therefore, they are not wise.   The gospel does. So he asks the question in verse 20, where's the wise? Where's the scribe? Where's the disputer of this age? Has not God made foolish the wisdom of this world? Where's the wise? When he says, where's the wise, that's in reference to the intellectual, both the Jewish and the Gentile. He says, where is the scribe? That word scribe refers to the Jewish doctors of the law. He says, where is the disputer of this age? That would speak of the Gentile philosophers. And what he's saying is Christianity is triumphing over the empty, depressing philosophies of man. The gospel triumphs. It's an interesting, scripture is found in Acts chapter 17, verse six. The people were upset at what was taking place through the ministry of the gospel. And it says, when they found them not, they drew Jason and certain brethren to the rulers of the city. And this is what they said. They cried out saying, these who have turned the world upside down have come here also. Those who turned the world upside down were really turning the world right side up. And that was taking place through the preaching of the gospel. But it's interesting, so early in the history of the church that there were people already saying they're turning the world upside down. And they did that without the internet. They did that without television. They did that without radio. They did that through the preaching of the gospel. They did that through believers who left Jerusalem and went through Judea, Samaria, and then began to go to the uttermost parts of the earth. Taking this message out. Turning the world upside down for Jesus Christ. He says in verse 21, since in the wisdom of God, the world through wisdom did not know God. And the gospel is much too deep to be grasped through unaided human understanding. People don't understand.  Without the spirit, you'll never understand. Here's something for you. This will illustrate what I'm trying to say. Without the spirit, you'll never understand. I wonder who here can describe to a blind man who has never seen the color blue. Can you do that? Is that possible? Somebody who has never tasted a strawberry.  Somebody who's never heard and can't hear. Can you, through sign language, describe to them the sound of music and what a certain melody is? You can't. Why? Because it's not possible for them to grasp those things because they don't have the capacity to do that. It's beyond their ability. So don't get so frustrated when you're sharing with people about the love of God and that person you're talking to looks at you like, are you kidding me? They don't get it. Unless the Holy Spirit grabs hold of their heart, they don't get it. That's why they argue with you. That's why they say, oh, you got your religion. I got mine. That's why they say it's good for you, but it's not good for me. It's because they don't get it. They're blind. So you can't get angry at a blind man for not understanding blue.  You can't get angry at somebody who's never tasted something they've never tasted. They don't have the capacity to do that. Well, at the same time, guys, unless the Holy Spirit takes God's word and grabs hold of somebody's heart and impresses them concerning the reality, it's called conviction, the reality of this, that person remains blind to it. They can't see it. These things are spiritually discerned. And that's how you come to know through the Holy Spirit. It's just too deep to be grasped through unaided human understanding. So that's why when you have a sense that the Spirit of God is speaking to you, that's why it's so wise for you to respond. That will give you some insight into why when I give invitations, I always wait for others. I always wait. Why? Because sometimes the Holy Spirit is still speaking to somebody and they're still fighting him.  You're just fighting him? I have. I was at a church service many years ago with my cousin Ray. The invitation was given. The Holy Spirit spoke to my heart, a very obvious word when the pastor said, if you wanna receive Christ come forward, the Holy Spirit said to my heart, tell Ray you'll go up there with him. And I prayed back and talked to the Spirit and said, no, seriously, I said no. I said no, I can't do that. Because if I go up, they're gonna think I'm getting saved and I've been saved for three years already. Holy Spirit said take Ray up there. And I said, no, it's gotta be indigestion, that's not the Spirit. So I didn't. I didn't. I didn't. We went home, he was living at our house, my cousin was living at our house at that time. We're sitting at the kitchen table after church. He was sitting right across from me and I'll never forget what my cousin Ray said to me. He said, hey, David, you know when that pastor said, if you wanna get saved to come up? I said, yeah. He said, I was waiting for you to touch me and to tell me you would go with me so I could go give my heart to Jesus Christ. Oh, I hate that. It's happened more than once, by the way. You ever have anything like that happen? I have. The Holy Spirit is saying, move. That's why I wait. That's why at invitations, I wait. Because Jesus is speaking to somebody else and that person's fighting him right now. Sometimes they are, so you wait.  He has a way of winning. The gospel is deep. And so the Lord is the one who brings it to you. Who could have invented a God so good that he would send his own son? Who could have invented a message like that? You see, for those who are unsaved, salvation is always an act on their part. They always earn it somehow. But the gospel of grace is beyond human understanding. Notice he says in verse 21, it, please God through the foolishness of the message. This message is simple and therefore requires an innocent childlike faith in order to embrace it and be saved. In Mark chapter 10, verses 13 through 15, it says people were bringing little children to Jesus to have him touch them, but the disciples rebuked them when Jesus saw this. He was indignant. He said to them, let the little children come to me and do not hinder them, for the kingdom of God belongs to such as these. I tell you the truth, anyone who will not receive the kingdom of God like a little child will never enter it. See to come up and say, God be merciful to me, I'm a sinner. And to actually believe that by opening your heart and answering a call is gonna lead to a completely transformed life. For most people doesn't make any sense, but everyone in this room would argue otherwise. My wife Marie was telling me just a couple of days ago how amazed she is at what God has done in our life. And if you'd have told us when we were freshly married, what God had planned for us, mm-mm, we would have never believed it. I was talking to my mom just today and my mom once again was saying to me, she said something like this, David, she said, she said, when you got saved, our family changed, she started talking about how my dad was changed and what a joy it was for her to have my dad. My dad whom my mom in the past has said for the first 25 years of their marriage, they had a good marriage. But when they got saved, they had a great marriage. And that's what happens guys. But see, you could have never told my family that that crazy little brother was gonna have radical transformation and one day be sitting up like I am right now talking about God. Nobody in my family would have believed that, none of them.  I have hundreds of cousins on one side, that's just one side. I've got hundreds on the other too. I think my relatives are California. I mean, I've got a lot of them, a lot of relatives. So to go and do a funeral with 200 cousins that you don't even know and to share the gospel with all of these people who are my relatives who don't even know me and to bring a message that my uncle had gotten saved and my aunt is saved, who would have ever believed those things would take place?  So radically, you will be what I call a new creature. Old things will pass away. Behold, all things will become new. That's the gospel. And that doesn't come through man's philosophy. That came from God himself. And so he preaches the gospel. In verse 22, Jews request a sign. Greeks seek after wisdom. We preach Christ crucified. To the Jews, a stumbling block. To the Greeks, foolishness. To those who are called both Jews and Greeks, Christ, the power of God and the wisdom of God because the foolishness of God is wiser than men. The weakness of God is stronger than men. Now when he says that the Jews request a sign and Greeks seek after wisdom, it's the habit of Jews and Gentiles. It's kind of one of those cultural things about their societies. Jews, he said, request a sign. Which you see that actually in scripture, Matthew 12, 38, some of the Pharisees and teachers of the law said to Jesus, teacher, we want to see a miraculous sign from you. So Jews had a way of asking for signs. You see that through the scriptures. But the Greeks seek after wisdom. You see that again in Acts 17 where it speaks about them taking Paul and bringing him to a meeting at the Eropagus where they said to him, may we know what this new teaching is that you're presenting. You are bringing some strange ideas to our ears. We want to know what they mean. And then we read all the Athenians and the foreigners who lived there spent their time doing nothing but talking about and listening to the latest ideas. And so Paul is just speaking about what they do. He said, Jews look for signs, Greeks look after wisdom, but we preach Christ crucified. Jesus is the power of God and the wisdom of God. Though the Jewish people may want outside signs and the Greeks may long for human wisdom. In reality, Jesus is the ultimate sign and ultimate wisdom of God. And the ultimate wisdom of God is revealed in the gospel of salvation through Jesus Christ. Because his message reveals a way of salvation and therefore must never be tainted with man's philosophy. Man's philosophy empties the gospel of its power to save. It's been said to attempt to make the gospel intellectually stimulating or sociologically and philosophically appealing without sharing its actual message makes it void of power. That's absolutely true. You empty it of its power when you try to make it something that is palatable, something that people want to hear, something that's easily digested. All you need to do is just let the line out of the cage. Just say, this is what the Bible says. Oh, I didn't invent the message. I simply deliver it. I didn't make it up. It was an originating with me. Paul said that. This comes from God. This is the message of Jesus Christ, what he has done and what he can do. Jesus said either you're for me or you are against me.  There is no conscientious objector in this warfare that is cosmic.  Either it's God or it's a rejection of God but you make that choice yourself. The gospel gives to us the choice, the ability. It says choose life. Jesus will set you free. Or you can remain in bondage. That's your choice. And so Paul as he's speaking forth the truth is simply making it very clear. I didn't invent this message. I proclaim it. And the message I give to you didn't originate with me. So you're not following Paul. You're not following Apollos. You're not following Cephas. And you're not creating some new group that you say oh we're just followers of Jesus when in reality you're not following him. What you're doing is you're listening to a message given by God through Paul and others that simply says come to Christ and your life will be changed. Jesus is the wisdom of God and Jesus is the power of God. And the power of God unto salvation comes through embracing what Jesus can do in your life. So it isn't a religious activity. It is a relational reality that God gives to us through Jesus.


Cases like cable vision in which the parties struggle over whether what the defendant has produced constitutes a copy are rare. Much more common are cases in which the parties struggle over whether the character and amount of material copied by the defendant from the plaintiff's work rise to the level necessary to constitute infringement. Once again, the burden is on the plaintiff. The plaintiff must show not only, as we've seen, that the defendant copied from the plaintiff's copyrighted work, but also that the copying, assuming it to be proved, went so far as to constitute improper appropriation. There are three more or less discreet ways in which the plaintiff can do so. First, he can show that the defendant made a verbatim copy of his entire work. This is what Melville Nimmer helpfully refers to as comprehensive copying. This happens more often than you might think. Examples include peer-to-peer sharing of sound recordings and the comprehensive replication of digital copies of films that were at issue in the cable vision case, which we just discussed. So long as the plaintiff's work qualifies for copyright protection, applying the standards we discussed in the first lecture, comprehensive copying of this sort easily gives rise to a violation of section 106.1. Things get a bit more complicated when what the defendant has copied verbatim is not the entire work, but a piece or slice of the plaintiff's work. Nimmer refers to this as, quote, fragmented literal similarity, close quote. An example can be found in this lecture. You'll recall that I illustrated the principle of subconscious copying by playing for you a segment of the chiffon's recording of Donald Mack's composition, He's So Fine. In order to enable you to hear that recording, I had to create a copy of that segment in the recording of this lecture, which you are now watching and listening to. I did not copy the entire song, so I've not engaged in comprehensive copying. Instead, I copied a piece of it, specifically a piece long enough for you to assess the plausibility of the court's conclusion that George Harrison had innocently copied Mack's composition. Thus I have engaged in, quote, fragmented literal copying, both of Mack's composition and of the chiffon's sound recording of that composition. To prevail in a fragmented literal similarity case, the plaintiff must show two things, in addition, as we've seen, to the fact of copying. First, he must show that the slice the defendant took includes some copyrightable expression, not merely ideas or facts. All the factors we discussed in lecture number one concerning the idea expression distinction become relevant here. For example, if the slice the defendant took consists of a sentence that is the only effective way of conveying a particular idea, then pursuant to the merger doctrine, the taking of that sentence does not constitute copyright infringement. Can I escape liability on this basis for copying a slice of He's So Fine? No. There's plenty of copyrightable expression in the 30-second slice that I appropriated. Second, the plaintiff must show that the slice that the defendant took is big enough. How big is that? The adjective most often used by the courts is substantial. The portion taken must be a substantial part of the plaintiff's work, measured both qualitatively and quantitatively. Relatively small slices have been deemed sufficient to pass this test, provided that they are sufficiently important to the plaintiff's creation. For example, in the 1980 Iowa State Research case, the defendant, ABC, broadcast as part of its coverage of the Olympics two brief excerpts from the plaintiff's documentary film examining the life of a wrestler. One expert was two and a half minutes long, the other 12 seconds, and the judgment of the second circuit, that was plenty. A willingness to find liability upon the taking of relatively small excerpts is not limited to the United States. For example, the courts in Australia have proven to be similarly protective of plaintiffs. In a recent high-profile case, the plaintiff owned the copyright in Crookapurl, a nursery rhyme originally written by Marion Sinclair in 1932. It was popular in Australia for decades, and indeed I can remember my mother singing it to me in the United States. The key segment of the song goes like this. I'm going to do my best here. Crookapur sits in the old gum tree, Mary, Mary, King of the bush is he. My apologies to Miss Sinclair. In the late 1970s, the Australian rock group Men at Work composed and recorded an equally famous, perhaps more famous song called Down Under. I'm going to play a short passage of that song. Listen carefully for the flute riff that comes near the end. Appears several other times in Down Under, and each time is equally short. George Ham, one of the members of Men at Work, added this riff to the song in order to inject some, quote, Australian flavor, close quote, into it. In the ensuing copyright litigation, Ham testified that, like George Harrison, he was not aware that he was lifting this segment from Crookapurl. Somewhat more specifically, here's how Judge Jacobson, who oversaw this case, summarized Ham's affidavit, quote, he said that the flute section, which he added, fitted rhythmically to Down Under, and the percussion drum section at the start of the song, which is in fact played on beer bottles with different amounts of water in them. Mr. Ham pointed out that the lyrics, vocal melody, chords, and bass lines were already established when he heard Down Under. He looked for a complementary part for his instruments, and especially one which fell into the, quote, tongue-in-cheek, quote, nature of the song. He described the flute line as an Aussie cliché melody, or what he thought was an Irish-Australian-style melody. Now, Judge Jacobson did not definitively resolve the question of whether Ham had been aware when he inserted the riff that had been taken from Crookapurl, apparently assuming that, as we saw on the George Harrison case, subconscious copying is actionable. The decisive issue in Judge Jacobson's judgment was the amount taken. Here's how the court expressed the relevant standard. Copywriting infringement arises when a defendant, quote, has copied a substantial part of the copyrighted work. The question whether he has copied a substantial part depends much more on the quality than on the quantity of what he has taken, close quote. That standard, the judge ruled, had been met in this case. The remedy? The defendants had to pay, the plaintiffs, 5% of the royalties they had earned on the song since 2002 and into the future. In 2011, the highest court in Australia refused to hear an appeal from the ruling, leaving Jacobson's decision intact. This case had a tragic coda. In April of 2012, George Ham died at age 58 of an apparent drug overdose. It seems that one factor in his decline was his dismay that his legacy had been permanently tarnished by the judgment that he had copied another musical work, suggesting that more important for him than the financial liability arising out of this case was the reputational harm it generated. So, to summarize, in a case involving fragmented literal similarity, the plaintiff must prove that the defendant took a substantial portion of the plaintiff's work, measured qualitatively and quantitatively. In practice, that requirement is forgiving, permitting plaintiffs to recover for the taking of quite small pieces. There's a limit, however. That limit is sometimes referred to as the, quote, de minimis doctrine. An excellent description and illustration of this doctrine can be found in Judge Laval's 2001 opinion in the case of Davis versus the Gap. Quote, the de minimis doctrine is rarely discussed in copyright opinions because suits are rarely broad over trivial instances of copying. Nevertheless, it's an important aspect of the law of copyright. Trivial copying is a significant part of modern life. Most honest citizens in the modern world frequently engage without hesitation in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of the law. We do not hesitate to make a photocopy of a letter from a friend to show to another friend or of a favorite cartoon to post on the refrigerator. Waiters at a restaurant sing happy birthday at a patron's table. When we do such things, it's not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine and trivial instances of copying, we are in fact not breaking the law. If a copyright owner were to sue the makers of trivial copies, judgment would be for the defendants. The case would be dismissed because trivial copying is not an infringement. Now, one warning about this otherwise illuminating passage. Judge Laval's example in the middle of this paragraph about recording television programs while we are out is not strictly speaking an example of de minimis copying. Rather, as I mentioned in connection with the cable vision case, that's an example of fair use, a doctrine that Judge Laval himself has done more to reshape and invigorate than any other judge. But if you exclude that one instance, the passage in front of you nicely illustrates the general and unsurprising principle. The law will not penalize the taking of trivial amounts. There's one important exception to the de minimis doctrine. It's illustrated by the facts of the 2005 case of Bridgeport Music. The plaintiff in that case owned the copyright and a sound recording of the song Get Off Your Ass and Jam, which was originally made by George Clinton Jr. and the Funkadelics. Clinton is pictured in the slide on your screen. The Funkadelics recording of Get Off opens with a solo guitar riff that contains three notes and lasts a total of four seconds. Here it is. Gangsta rap group NWA, depicted on this slide, subsequently recorded a song entitled A Hundred Miles and Running, which contained a sample from the Funkadelics recording. Specifically, NWA copied two seconds of the four-second riff, lowered the pitch, looped that slice, and extended it to 16 beats. The loop created by NWA lasts a total of seven seconds. That seven-second segment, derived from the original recording, appears in five places in 100 miles. I'm going to play one of those five appearances. Listen carefully, because the segment appears in the background, and it's hard to hear. A word of warning in the foreground of this excerpt are some explicit lyrics that may offend some listeners. If you don't wish to hear them, you should skip over the next 20 seconds of this lecture. Despite the brevity of the sample taken from the Funkadelics recording, the copyright owner brought an infringement suit. Really, you may think. To be sure, as the district court that heard the case observed, the segment taken by the defendants, though tiny, was arguably important to the defendant's work. In the court's words, quote, the portion of the song at issue here is an arpeggiated chord, that is, three notes that is struck together, comprise a chord, but are instead played one at a time in very quick succession, that is, repeated several times at the opening of get-off. The arpeggiated chord is played on an unaccompanied electric guitar. The rapidity of the notes and the way they are played produce a high-pitched whirling sound that captures the listener's attention and creates anticipation of what is to follow. Close quote. Well, maybe, but the fact remains that the excerpt taken is very short to repeat, two seconds long, much shorter than the excerpt in the Cucumberrow case, and much less distinctive. Indeed, if I hadn't pointed it out, almost surely you would not have noticed it. This would thus seem to be an easy case of de minimis copying, taking an amount too small to warrant the attention of the law, and the district court so ruled. Surprisingly, the Sixth Circuit Court of Appeals reversed, holding broadly, that the de minimis defense is not available to a defendant who samples sound recordings.  The rule, announced in Bridgeport Music, was widely denounced, and it may well be a bad rule, but it's somewhat less shocking than it first appears. The reason is that in U.S. law, sound recordings get narrower protection than other sorts of copyrights. Here's the relevant provision. As you can see, imitating a sound recording does not constitute infringement. With respect to all other types of copyrighted works, including musical compositions, imitation does constitute infringement, but not for sound recordings. Only capturing the actual sounds fixed in the recording gives rise to liability. Dubbing is actionable, but not imitation. This provision explains why, as we discussed in Lecture No. 3, musicians are free to make covers of commercially released songs. As we saw there, musicians have to pay the composers of those songs, or their assignees, a modest compulsory fee, but they don't have to get the composer's permission. Even more strikingly, they don't have to pay anything to the owners of the copyrights in the sound recordings and embodying the original rendition of the song, because they're not capturing its actual sounds. Now, the reason why this rule is relevant to digital sampling is that, as the Sixth Circuit observes, it creates an inexpensive alternative to sampling. As the court explained, quote, it must be remembered that if an artist wants to incorporate a riff from another work in his or her recording, he's free to duplicate the sound of that riff in the studio. The market will control the license price and keep it within bounds. The sound recording copyright owner cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Close quote. In other words, the court argues, a blanket rule that all digital sampling, no matter how small, gives rise to liability would not quote stifle creativity, close quote, because rap artists and others can either imitate the sounds they want or can obtain a license, the fee for which will be low, because the licensor is aware that imitation is lawful. The court's last argument in support of its ruling is different. Not only would a blanket prohibition on sampling not stifle creativity, said the court, it's fair. Why? Because quote, sampling is never accidental. It's not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears the melody is that it's the work of another, which he had heard before. When you sample a sound recording, you know you are taking another's work product. Close quote. Notice here the echoes of the fairness theory of copyright in general. Intentionally taking someone else's quote work product, the court suggests, is wrong, morally wrong, and deserves to be punished. I leave to you the question of whether these arguments in combination are convincing. I hasten to add that the elimination of the de minimis defense for sound recordings does not necessarily mean that all digital sampling is unlawful. It's still in principle possible for samplers to avoid liability on the basis of fair use. We'll take up that option in two weeks. Incidentally, the Fair Use Doctrine, as you'll see, also provides the best line of defense for me if the funkadelics or NWA or the chiffons object to my use in this lecture of pieces of their recordings. The seemingly absolute position taken by the Sixth Circuit Court of Appeals in the Bridgeport case is not limited to the United States. In the 2008 Matal Auf Matal case, the Federal Supreme Court of Germany similarly ruled that the sampling of any part of a digital recording gives rise to infringement of the neighboring right in the recording. If you follow this link on your screen, you can read an English translation of the German decision. So the Bridgeport Music Doctrine, for better or worse, seems to be spreading. The third path to a demonstration of improper appropriation is the most interesting and complicated. It involves situations in which the defendant has not copied any portion of the plaintiff's work verbatim, but has instead created a different but similar work. Such cases of, to use numerous phrase, comprehensive non-literal similarity, are governed in the United States by the so-called, quote, substantial similarity, close quote, test. As you might expect, the defendant is liable under this approach if and only if his work is substantially similar to the plaintiff's. Before considering what that phrase might mean, we need to confront two threshold questions. First, are additions relevant? In other words, can a defendant escape liability by showing that he added sufficient things to the plaintiff's work to make the two works different? The canonical answer is no. As Judge Hand once put it, quote, no plagiarist can excuse the wrong by showing how much of his work he did not pirate, close quote. However, as we'll see, courts don't always adhere strictly to that guideline. Second, what happens when the plaintiff's work contains some material protected by copyright law and some material that's not protected, for example, that consists of facts or sends off air? Cases of this sort present courts with an analytical challenge. Similarity that arises because the defendant has mimicked unprotected material should, of course, not give rise to liability. On the other hand, if the courts or juries ignore the unprotected material altogether, they may fail to give the plaintiff appropriate protection for the original way in which he has arranged the unprotected pieces. No single way of handling this problem governs all cases. Instead, one can find in the case law a spectrum of approaches. At one extreme is what is sometimes called the totality approach. As that label suggests, it urges the trier of fact, whether a judge or a jury, to compare the two works in their totality and decide if they are viewed in this way substantially similar. At the opposite extreme is the so-called filtration approach. The essence of this strategy is that the trier of fact is instructed to remove all unprotected material from the plaintiff's work or comparing it to the defendant's. The context in which the filtration approach is most consistently applied is computer software. I'll spend a bit of time exploring how filtration works in that setting. You'll recall from lecture three that some, not all, software firms seek to control four sorts of behavior. Reproduction by consumers of the object code embodying their works. Reproduction by commercial enterprises of the object code of their works. Incorporation of parts of their source code into new programs. And finally, non-literal copying, namely the production and distribution of programs that have the same structure, sequence, or organization, even though they have none of the original source or object code. Two of these activities, I hope you now see, are forms of comprehensive literal similarity. The third is an example of fragmented literal similarity. And the fourth is an example of comprehensive non-literal similarity. It's in this fourth and last setting that the question of filtration arises. When does a program that resembles another program in structure and function but contains none of the same source code give rise to infringement? The courts that first addressed this issue analyzed it using essentially the same tools that they employed when analyzing non-literal similarity between two films or photographs. As a result, the plaintiffs with some frequency won. Then in 1992, the influential Second Circuit Court of Appeals adopted a sharply new approach. In the Altai case, the Second Circuit adopted what has come to be called the Abstraction Filtration Comparison Test for cases involving non-literal similarity of software. As its name suggests, this test has three parts. Part one, Abstraction, is adapted from the test formulated by Judge Lernan Hand long ago for determining when the plot of one literary work is too close to the plot of another. Here's how Judge Hand described that test in the 1930 Nichols case. Quote, upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about and at times might consist only of its title. But there is a point in this series of abstractions where they are no longer protected since otherwise the playwright could prevent the use of his ideas to which, apart from their expression, his property is never extended. Nobody has been able to fix that boundary and nobody ever can. In some cases, the question has been treated as though a analogous to lifting a portion out of the copyrighted work. But the analogy is not a good one because, though the skeleton is a part of the body, it pervades and supports the whole. In such cases, we are rather concerned with the line between expression and what is expressed. Graphically, this approach might be represented as follows. At the lowest level of abstraction, in other words, the level with the most detail, the plot of a play might be depicted like this. Long lines represent major events, shorter lines minor events. Abstracted one level, in other words, removing some of the minor incidents, the plot would look like this. Abstracted another level, it would look like this and so forth. At the highest level of abstraction, the plot is extremely general, something like boy meets girl, they quarrel and separate, they make up and live happily ever after. Somewhere in this sequence of nested patterns lies a line hard to discern but nevertheless present. Formulations of the plot sufficiently abstract to fall above the line constitute, within the language of copyright law, mere ideas. Formulations sufficiently detailed to fall below the line consist of protected expression. Only if the defendant's plot parallels the plaintiff's at a level of detail below the line has the defendant infringed the plaintiff's work. In the Altide case, the Second Circuit adapted the so-called pattern test, originally developed to deal with plots, to software. A software program, the court held, can be arranged into levels of abstraction just like a plot. The highest level consists of a general description of the function of the program. At the next level down are major modules or subroutines. At the next level are finer divisions among parts of modules, until one reaches at the lowest level the source code. Once the various levels of the program have been separated in this fashion, the Altide test requires the trier effect to remove, in other words, to filter out features that do not enjoy copyright protection. With respect to software, the court ruled there are many reasons for disqualifying features. First, the court should identify and then filter out elements of the plaintiff's program that are necessary for the program to operate efficiently. For example, anything necessary to enable the program to sort and search efficiently should be removed. Next to go are features that are dictated by external factors. These include features necessary to meet mechanical specifications of the computer, the compatibility requirements of other programs, the design standards of the computer manufacturers, demands of the industry being served, in other words, the demands of customers, and widely accepted programming practices. Finally, and least surprisingly, it should identify and eliminate features that the original programmer had taken from the public domain. The net result is an abridged pattern of features, like a comb missing many teeth. The third and last step in the Altide test is comparison. The features of the defendants program are laid alongside the now filtered version of the plaintiff's program, and the two are compared. If and only if they appear substantially similar is the defendant liable. Since 1992, most courts confronted with cases of this general sort have employed the Altide test. It's not quite universal, and the Supreme Court has never lent Altide its imprimatur, but it is surely dominant. As you might surmise, the Altide approach favors defendants. Its adoption made it significantly more difficult for software developers to recover against competitors who deployed structurally similar programs. The Altide approach has many critics. Executives in major software firms sometimes point to this decision as one of the reasons why they have turned increasingly to patent law to protect their innovations. And some scholars, like Dennis Karjala, point out that the relationship between the idea-expression distinction that underlies the abstraction portion of the test and the filtration portion of the test is far from clear. But for better or worse, the test seems here to stay. Now, let's return to the main road. The fundamental problem I've noted is how to separate protected from unprotected material when applying the substantial similarity test. The approach most generous to copyright owners is totality analysis. The least generous approach is the abstraction filtration comparison test, now applied by most U.S. courts in the context of software. In between these two is the, quote, more discerning observer test. The way in which that approach works is best explained after we have explored the meaning of substantial similarity. So to that troublesome concept we now turn. The courts have had great difficulty defining exactly how much similarity between a defendant's work and a plaintiff's work is necessary to trigger liability. They agreed that it's not a mathematical question. The percentage of overlap is not decisive. The standard is much more impressionistic than that. But the courts have trouble capturing in words the level required. Various formulations can be found in the case law.  You should not think of these formulations as distinct tests, analogous to the avowedly distinct tests that are used to determine conceptual separability with respect to useful articles. Rather, they at least purport to be different ways of describing the same standard. Often courts say that two works are substantially similar if they have, quote, the same aesthetic appeal, close quote. For example, in the 2001 Boisant case, the Second Circuit said, quote, generally an allegedly infringing work is considered substantially similar to a copyrighted work if the ordinary observer, unless he's set out to detect the disparities, would be disposed to overlook them and regard their aesthetic appeal as the same. You may recall that in the 2005 Mannion case, the district court relied on this test to rule that a jury could find substantial similarity between this magazine photo of Kevin Garnett and this photo prepared for a billboard advertising Coors Beer. Here they are, side by side. Another slightly different formulation. In the Ideal Toy case, the same court defined the relevant test as, quote, whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work, close quote. Applying this language, a lower court in the 1987 Steinberg case concluded that this famous magazine cover, suggesting the myopia of residence of New York City, was infringed by this poster, publicizing the movie Moscow on the Hudson. Again, here they are, side by side. Yet another variation. Sometimes courts contend that attention should be focused on, quote, the overall concept and feel of the two works. For example, in the Croft case, the Ninth Circuit relied on that phrase in ruling that the characters' flora fauna and layout of an imaginary land depicted in an advertisement for McDonald's restaurants resembled sufficiently the corresponding features of the imaginary land depicted in the Fun Stuff Children's Show, sufficiently closely to give rise to liability. Individual features the court noted were very similar. For example, quote, both lands are governed by mayors who have disproportionately large round heads dominated by long, wide mouths, close quote. But the real basis of liability was the overall judgment that McDonald's land, quote, captured the total concept and feel of the Fun Stuff Show, close quote. In a similar vein, a district court in the Kish case concluded that a rational jury might find substantial similarity in the, quote, underlying tone or mood, close quote, of the two photos depicted on your screen. From what perspective should these judgments be made? In other words, through whose eyes should the trier effect view the two works when determining whether they are substantially similar? The dominant answer to that question is the average lay observer. In other words, not an expert in the field of art or literature at issue, but an ordinary lay person. That answer is subject to two qualifications, however. First, on occasion, courts will adopt the perspective of the members of the intended audience for the two works. For example, in the Croft case, which I just mentioned, the Ninth Circuit at one point sought to assess the degree to which the Fun Stuff Show and McDonald's land would have looked similar to the children at which both works were primarily aimed. For those of you familiar with trademark law, this maneuver should remind you of the ways in which courts sometimes assess the likelihood of consumer confusion that arises when two trademarks are similar. The second qualification is that courts will occasionally adjust their glasses when the plaintiff's work contains some unprotected material, as well as some protected material. As you recall, I described the two polar positions taken by courts when dealing with such cases, the so-called totality analysis, and the filtration approach exemplified by the Altai case. In between those two positions is the so-called more discerning observer test. The Second Circuit, in the Boisson case, explained this approach as follows. In the Folio Impressions case, one of the plaintiff's fabric was not original and therefore not protectable. We articulated the need for an ordinary observer to be, quote, more discerning in such circumstances. The ordinary observer would compare the finished product that the fabric's designs were intended to grace women's dresses and would be inclined to view the entire dress, consisting of protectable and unprotectable elements as one whole. Here, since only some of the design enjoys copyright protection, the observer's inspection must be more discerning. Shortly after Folio Impressions was decided, we reiterated that a, quote, more refined analysis, quote, is required where a plaintiff's work is not wholly original, but rather incorporates elements from the public domain. In these instances, quote, what must be shown is substantial similarity between those elements and only those elements that provide copyrightability to the allegedly infringed compilation. In contrast where the plaintiff's work contains no material imported from the public domain, the more discerning test is unnecessary. In applying this test, a court is not to dissect the works that issue into separate components and compare only the copyrightable elements. To do so would be to take the more discerning test to an extreme, which would result in almost nothing being copyrightable because original works broken down into their composite parts would usually be little more than basic unprotectable elements, like letters, colors, and symbols. This outcome, affording no copyright protection to an original compilation of unprotectable elements, would be contrary to the Supreme Court's holding in FICE publications. Okay, that's a lot of language, and after all that, it's still not entirely clear what the court has in mind. The bottom line seems to be, when comparing the two works, don't filter out the unprotected material, as the court did with software and Altai, but instead adopt a more skeptical stance than the hypothetical ordinary observer. As we've seen, the emphasis in all of these cases is on some variant of an ordinary lay observer. Does that mean that expert witnesses have no role in substantial similarity determinations? Not quite. Although the ultimate judgment must always be made from the standpoint of an ordinary observer, experts can help in framing the ultimate judgment. The Court of Appeals for the Ninth Circuit has developed the most elaborate, some scholars say convoluted, system for combining expert and lay analysis. In the Ninth Circuit, there are now two steps to a determination of substantial similarity, an extrinsic test and an intrinsic test. With respect to the first, expert opinion is relevant, but not with respect to the second. To win, the plaintiff has to satisfy both. So what are these two terms, extrinsic and intrinsic, mean? It's not entirely clear, in part because the Ninth Circuit's usage has changed over time. In the Croft case, where this approach was first deployed, the extrinsic test was defined as, quote, similarity in ideas. Intrinsic was defined as, quote, similarity in expression. This formulation, you probably noticed, is hard to reconcile with the fundamental principle that copyright law doesn't protect ideas at all. Perhaps sensing that problem, in subsequent cases, the Ninth Circuit has formulated the approach differently. For example, in the Cavalier case, extrinsic is treated as, quote, an objective comparison of specific expressive elements, close quote, while intrinsic is, quote, a subjective comparison of the total concept and feel, close quote, of the two works. In the Swarovski case, the court backed up a bit, defining the issue addressed by the extrinsic test as, quote, whether the two works share a similarity of ideas and expression as measured by external objective criteria, while the intrinsic test, again, focused on total concept and feel. Even the Ninth Circuit acknowledges the clumsiness of these maneuvers. In Swarovski, for example, the judge has admitted, quote, the extrinsic test provides an awkward framework to apply to copyrighted works like music or art objects, which lack distinct elements of idea and expression. Nevertheless, the test is our law, and we must apply it, close quote. So, too, must lid against when they appear in the courts of the Ninth Circuit. This concludes our review of the doctrine of substantial similarity. In closing, I would urge you not to put too much stock in the language the courts employ when setting forth these various formulations. At least as good a guide to the law in this area is the pattern of results reached in the cases. That's the main reason, aside from simple entertainment, that during our tour, I've been telling you the central facts of several of these cases and how they were resolved. This is not to say, of course, that the results in these cases are entirely consistent. They surely are not. But from them, you can distill an impression of the degree or kind of similarity that will likely get you in trouble and the degree or kind that will not. More guidance than that may be impossible.


Hi there, I'm Sandy Allknock artist and paper crafter here on YouTube and today I'm gonna stamp a floral patterned vellum card and I'm gonna use the misty to do it And I want to show you how to kind of make all the little floral pieces meet up with each other So it's a stamp set from W plus 9. It's a sympathy set and who doesn't need a sympathy card When you're not sad so make one of these while you're not sad So that it doesn't break your heart when you're making one because you need it Put it in your stash and be ready to go. I took a piece of scratch paper first I just taped it down in the middle of the misty because I'm gonna use it basically for a template to follow along With the rest of the the piece of vellum that I'm gonna use so I have that one down and I'm just gonna randomly wherever, you know pick a pick a place to start with The stamping and just throw the the stamping on there now. I'm using distress oxide Ink and this is the peacock feathers After doing this, I probably would recommend something that's gonna dry faster than this because You'll see as I go. There's a little bit of issues with it Kind of making a little bit of a mess, but it came out still good enough in the area that the card is gonna be Can I used it anyway? but for each one of these now I can turn this and Kind of figure out exactly where I want it to line up with the next flowers And just start to fill in the places Don't leave yourself little tiny areas to fill in unless you have a little leaf or a little tiny flower That you're gonna use to fill in that spot if you want a full all-over pattern Then try to make these things take up as much of that space as possible and leave yourself decent shapes that you can Find one of the edges of this stamp to tuck into it and I let some of them overlap each other Just a little bit. Some of the outside solid leaves can overlap because they can look like they're in front That'll work just fine But the thing that it has started to happen here that you may be able to see is that when I press it down I'm getting a little bit of pressure. So I'm picking up some ink on the The clear acetate my clear acetate the acrylic. Yes Acrylic and so I had to keep wiping that off and it did make slight smushies on the vellum But it was very slight and with the way that I'm gonna use it. You're not gonna be able to really tell nobody's gonna care So I'm just gonna continue working my way all the way around the card or around the piece Notice that I've made it a really big piece of vellum so I could have lots of areas to choose from so if you smush one area You could still just move it around and choose which section that you want to do this with on your card You could also make one that's a double piece and then just cut it in half and get two cards out of it While you're doing all this stamping But you want to leave yourself room to stamp over the edges outside of it so that you can get that that all over pattern If you're using distress oxide, let it dry. I let it dry actually overnight because I wanted to do this pencil works I took a Prismacolor pencil This is number 992 and I just started putting color in where there were not these white flowers Because these are lilies and I also didn't fill in the leaves You could fill in the leaves in green and have another color in here But I'm doing it on the inked side, which is why I made sure that it was good and dry before it started doing this and It's going to when you look through it on the other side You're not going to be able to see any Scribbly pencil lines or anything so don't stress out about your coloring. Just fill in some colors So you have some difference in it I'm using some B creative tape now across the top and I've trimmed my vellum piece Horizontally so I have a top edge that I was happy with and there's that little corner there that didn't get colored But I'm going to cut that off anyway so don't worry about that and I'm just going to place it on top of here and Don't worry. I'm going to cover up where that B creative tape is now You can barely see it so you might not worry about that for but for people who say oh my goodness I can see the tape through it. I have a solution for you because I have a really cool thing I'm going to do with a piece of ribbon But first I'm going to stamp my sentiment So I'm going to use some embossing powder that was my embossing buddy thing tool De-static-er so that my powder doesn't stick to things and then stamp it with some versam Versamark ink which is a clear ink if you don't know what embossing is That's going to get be sticky and pick up the the powder in just a minute I also have a Versamark pen and I took the edges of that word prayers and Extended it off the edge of the card And now I'll put my hero arts white embossing powder on it flick off the excess and then I'm letting the heat gun Warm up first and you need this to be really hot before you take it to the vellum because it's going to curl vellum doesn't really get thrilled about curling especially if you use Normal weight if you have really heavy stuff maybe but I like to use the lighter stuff because I don't use vellum enough to To buy the really expensive heavyweight stuff But it's works really easy to just put two little pieces in the corners down here, and it'll hold that down Nice and flat. It's also going to dry flatter, but it was still somewhat warm after the the embossing So I've put a piece of half inch be creative tape now across the top And I have a piece of ribbon cut that I wanted to use now you could just make it flat across the top But I'm going to show you how to make a knot that's going to go through the postal service without being a lumpy so Stay tuned here I'm I'm kind of trying to make sure I glue this the sides of it down first And then make them join kind of in the middle because that's where I'm going to put my little knot and I'm going to twist them in such a way and you need to practice which way you're going to To tie it because I had to do like the opposite I had to take that one in my that one on the left hand that I'm tucking underneath and Pull that one through normally I tie my knots the other way But you want that one on the top left to not look like it's kind of flailing Because then you don't need any adhesive to hold this thing down once you have that Adhesive across the whole front It's going to stay just fine and it looks kind of like a knot even though it's not it hasn't been knotted So it's not bulky. It's not thick that way so give that a try and That's about it for today. I hope you enjoyed this video if you did click that like button and go make yourself a beautiful sympathy card today while you're not needing one and then you'll have it later when you do need one I'll talk to you guys later. Thanks for watching. Bye. Bye


Hey guys, welcome to a new year of my creative year I've said it before I'll say it again. I can't believe we got this far Just it's surprising to me, but in a good way. I am Here to bring you this month's topic and my spin on it so this month our topic is nature We are gonna be carrying on with the daily creative words and I'm gonna try to sketch them As much as I can every day and share them here I'm gonna try I am missing my daily sketching and at the time of filming this. I'm trying hard to get back into it. So Anyway, so this month our topic is nature and There's a million ways you could take that and use it in your art as I said in the challenge video you could Go out in nature and you could pick up things that you can print With in your art you can pick up things that you actually can put into your art So that being said in this bank of drawers behind me I actually have a drawer that says nature and it's full of things like dried flowers dried leaves bag of moss a bag of sand red lava rock from Las Vegas sticks driftwood Many seashells like all kinds of things that I find interesting. I bring them home.  I put them in a little bag. I stick them in my nature drawer So I want you this month to find some things like that to either give you inspiration into your art or use Actually in your art now that being said I had an idea I I live in the Pacific Northwest now the land of much rain and much moss and so I'm going to go outside and I'm going to put some shoes on in a sweatshirt because it's a bit chilly I think it's like 40 degrees and Wet and we are going to go grab some moss And we are going to use it to print in our journal. I Have no idea if it's going to work I just thought I was going to do something completely different in my journal for this prompt and then I was like wait moss is wait so let me Unplug the camera from the tripod and let me drag y'all outside with me. Let's get a sweatshirt. Let's get some shoes Yes, they'll be flip-flops. I'll show you. I'm crazy that way the neighbors all know. Oh, yeah, she's that one the nut from California Anyway, let's go get to it. All right, I'll be back so we are here In my driveway. I was hoping we wouldn't have to go too far because there's usually moss on these trees somewhere But of course when I want some moss I don't see any moss Well, there's some green moss down there Hmm, let's go over to the wetlands That are part of my community and let's go see what we can do with without getting in trouble So these are the woods and wetlands next to my house and There is a creek over here You're not supposed to go in them It's actually not allowed for any humans to go in there for any reason I'm usually Filming the little creek for my log. I don't have to go far though. I saw a piece of moss just laying on the ground So let's go grab it That'll work. All right, let's go back and oh, there's another piece. We'll grab both of them. All right Let's go back and see what we can make okay, so We found some moss and let's find a page in my journal that I want to work on. This is a Dina Wakeley journal and I spent a lot of time just wiping off paintbrushes in here It's a great place for that Let's find a page and Obviously as you can tell I skip around Maybe this one so let's move our page protectors around And put some clips I Had the idea to do Sort of a woodland scene in my journal With a prompt of nature and then I was like ooh moss. I think we're going to combine the two ideas so The first thing I'm going to do is take a pencil or a pen or something Maybe a pen. Oh, let's do pencil Let's do a pencil That's to be low all pencil. All right, and we are going to just draw some Tree shapes now trees are not They're not smooth. They're not even. I don't have a great grip on the pencil. I'm not pressing too hard as you saw my house is Surrounded by woods and wetlands They're just gorgeous So let's draw a few trees. I'm not Sure if you're going to be able to see that too much on camera, but We are going to fix that As soon as I find my water brush Here we go So like with any other water soluble medium, it's really all about the water So put the water where you want the color to flow to that where you don't want it keep it dry and Obviously as you can tell this pencil is water soluble That was a really nice dark Blackish gray color when it's dry. I Mean when it's wet and it dries very nicely, too I could get it darker, but I don't need to not right now By laying on more of the pencil So we are going to do that across the page and this page is bumpy because I put I Scraped acrylic paint on it. So that's okay because that's going to lend itself very nicely to the tree shapes So I think I want to do them all the way across okay, if you need to Stop And get that pencil wet So you can make those lines darker and you can see better where you're at The nice thing about sketching in a water soluble pencil Besides the fact that you can just do this and leave it at that Is that when you put your paint on here and the pencil is going to dissolve with the paint? So it's not going to leave very many if any pencil lines behind I Like to use this little trick When I'm painting especially when I'm watercoloring. I'm not always super concerned about the lines disappearing but I do Sometimes not want big heavy lines and I just make sure I use a color of pencil that will blend nicely With the paint that I'm going to use Okay, I'm going to do this all the way across and I'll be right back Okay, now that we have our trees sketched out. Oops things are a little wobbly Okay, now that we have our trees sketched out We're going to take I'm going to take these acrylic paints. These are called 12 shades of gray They are different shades. Of course of gray tones. There's also a gray Orange a gray green a gray violet You don't have to use these use what you have you could mix up something similar using Gray paint and then a little dab up say blue or red or green To that gray or you could of course make gray with black and white and then add a little dab of green to it To turn it slightly green or a little drab of red. I have a mid gray a Warm gray Cold gray, which is probably more blue Pale gray and Pain's gray, which is dark. Those are great different shades of actual gray paint I'm gonna swatch. You know what? Let's swatch these real quick for you so you guys can see what I'm talking about Have conveniently a piece of paper and reading glasses. Okay, so I need a little bit of these anyway for the journal page, so We'll put a little ball of them on there that is warm gray You can see that it's kind of a brown this is Mid gray I'm a cold gray Very close to mid-grey but slightly bluer Pain's gray. I'll put a link to these paints in the video description But again, you don't need these you can use what you have you can mix up colors. What's what use what you have? This is the pale gray Then we have green gray and then brown gray This isn't the order they come in the box by the way, this is just the order. I'm grabbing them out of the pile yellow gray blue gray The nice thing I've noticed about these two is they actually blend really well With just a little dab of water red gray Which is a very terracotta color Violet gray and then the last one is orange gray. Okay I'm gonna show this video in real time.  We're gonna just use this paper as a palette and I'm going to Paint my trees in More friend pull them out from the background I'm gonna use the warmer colors of gray the yellows oranges the reds To bring parts of the trees forward and have them look like the light is hitting them and the cooler colors and the bluer colors To make the tree parts of the trees recede into the background and make them darker So let's actually start with Pushing things into the background I'm using a filbert brush I'm using a very light touch. I'm not hardly Touching the paper at all again, these paints Blend very well with water. I'm gonna grab some water up there. I'm actually very impressed by how they blend I'm gonna leave these streaks of orange and yellow paint in the background because they make Good sort of sunlight coming through the trees. I'm just kind of bouncing around with the paintbrush with the colors But I should say color with putting the color here and there And you can already see if you're watching you can see The shapes of the trees start to pop out from the rest of the page Just with a few brushstrokes Okay, and we're gonna just sort of go down our Samples swatches Grabbing different colors Remember what I said about trees aren't straight. They're not even their nature. I've said this before in other tutorials The joy of painting nature is you don't have to worry about making straight lines because there's nothing in nature that's straight and even It's all crooked And if your lines come out too straight a tip for you I have is use your non-dominant hands switch hands So if you're right-handed use your left-handed if we're left-handed use your right hand Now because these are acrylic paints once they're dry, they're not going to move And that makes them nice to layer over unlike watercolor where you really you can do some layering But you can't do a lot of layering You really need to start light and work darker, but with acrylic paint If you get too much of dark in one place, just let it dry and you can go back over with a light color I want these to blend so I'm not super concerned I'm gonna avoid the paints gray, which is our darkest color And I'm gonna skip down to the light gray I know you're thinking well, what about that moss? She took us outside to go get moss Trust me, and I just thought of a quote for the page Just now that frequently happens and I'll have no idea what the words are gonna be on the page Most of my work does have words on it. I don't always know what those words are gonna be Until Sometime during my process Something comes You notice I have not changed paintbrushes. This is a plain old filbert brush. It is I don't even know what brand it is Just a plain old filbert brush It's probably a Princeton because I do I do like Princeton paintbrushes They're a good value for the money, I believe Okay, I'm also gonna skip over the green and I'm gonna go into one of the Redder tones. I think this is a brown And I'm just dipping the tippy top of my Filbert brush and I'm just going to I'm barely I'm barely touching the page. Don't forget to get some paint on the little branches If you're not part of my face my creative year on Facebook, and you would like to be it's a free a year-long Group where we explore art and our journaling and Daily creative practices We'd love to have you the links in the description below.  I'm gonna grab the blue and Again, I'm just barely taking Dipping the tip of my brush. I'm not touching it hard to the page streaking it on Okay, there's also a violet color And I guess I wanted the brown too because I just accidentally stuck my brush in the brown That's okay Just keep building up your colors Until you get something you like We're going for an abstract or abstracted For a scene we are not going for a realistic if you know anything about me in my art I generally don't do anything that resembles anything too realistic. That's just not who I am When I grab some of the orange Okay, now We're gonna grab I'm gonna wipe my brush off a bit and I'm gonna grab some of that pain's gray and With more thought Than I used on the other colors I'm gonna use the pains gray To highlight some of the shapes Pull them out from the background. I probably should finally switch to a smaller brush because it's a little bit big Let's see what we can do Okay So anywhere where lines are too sharp or too defined You want to get some water in there and do some blending. This is about suggesting shapes rather than Defining them and just use a damp brush with your brush off in your water This paint is great because you don't Generally need too much water And even if it's a little dry, it seems to still blend really well, so I Don't know. I really like this paint. I'll be honest. I had it in my stash a long time. I bought it on a whim and You know, it's one of those things you know, that sounds interesting Let me get some of that and then you never use it and finally I used it not long ago and I thought wow Why haven't I used this before? Really nice. I like this. Remember we haven't used our moss yet. Okay Payne's gray is my favorite Dark accent color has been for a long time It's more interesting than just plain all black So it's usually I some kind of a dark grayish blue. I like that. All right Now This is the plan anyway. I'm gonna take a clip I'm gonna take our moss which honestly has been sitting here next to me on a paper towel and It was a little bit damp when I brought it upstairs. Now. It's a little drier Which is a good It's very it's not clean. This is just how I picked it up off the floor ground outside Let it clump it all together when I clip it in my Clip try to get some of the excess dirt off of it Not that it matters we're gonna dip it in the paint and this is the gray green and the The green gray and the yellow gray So if some of the moss sticks into the paint and sticks to the page You know what I'm okay with that All right, I'm gonna grab a baby wipe Zoom in just a bit. It's like right there So I'm going to take the baby wipe and I'm just going to The background is dry So I'm gonna wipe away where the moss hit between the trees Not all of it, but some of it. I May not be able to get all of it Whoops wrong way. So where the moss landed on paint It'll rub away just fine where it landed on paper probably not so much We're just fine but in most of the woods around our house the trees are covered with a decent amount of Moss So I want the marks to be on the trees, but I also want it to suggest maybe foliage So it doesn't have to be Defined as a mark. I love that. It's very subtle. I don't know if you can see I don't know if you guys are gonna be able to see I Like what it did. Let's get some more of the Yellow green let's reposition our moss Oops stuck my finger in some paint. That should be no big surprise We are going to I could do it with a Jelly roll pen then we got to wait for things to dry Why don't we try a whiteout pen? I want to add some white highlights If I can get it to work. It's not working. It's a brand new whiteout pen. So that's dust Nope, I want something thicker Let's get a white paint pen. Shall we? White Molotow marker. They never never never let me down the Molotow Okay, so let's So we're gonna give it a big pop This is gonna be one of those cases of do what I say Not what I do So what do I mean by that? So you should really wait for your pages to dry completely before you take any kind of a pen Paint or otherwise to your pages. I'm I'm pretty bad about that. I Kill a lot of pens. I love that way that looks okay, so the quote I want to add to here is can can you It's not a quote. It's a question. Can you see the forest through the trees? Think about that one. So, you know what I'm gonna do. I'm gonna get out my typewriter Yes, I do have a typewriter an old-fashioned manual and I'm gonna type it up and I'll be right back Okay, anybody who knows me or has been following me for a while knows spelling is not my strong suit So while I know I spelled the words correctly. Oops, who are we? Is that the right version of through? No idea. I'm sure one of you can tell me if it is or not probably isn't that's okay I don't mind so I'm going to just rip this I wanted to have torn edges And we're gonna stick it down right about there. I Think I'm gonna just use a glue stick because it's easy. There you go. Can you see the forest through the trees? So I would love to see what you can make in your journals or with your art or whatever Creativity you choose to practice at the moment using the prompt of nature Where does that take you? What kind of journey does that take you on? What kind of inspiration does it give you? I would love to see that I would love to see you share here in the Facebook group Again, if you're watching this on YouTube and you're not a member of the Facebook group And you'd like to be the links in the description below. That's it for today I want you all to go out and have a great day like share and subscribe Leave a question or comment if you've got one in the below here on the video Or if you're in the Facebook group ask over there and that's it right now Go out and have a great day do something nice for yourself because you deserve it now. I'll see you later. Bye guys


Admiral Sam Locklear passed the title of Old Salt to Vice Admiral Kurt Tidd during a ceremony held in the Pentagon June 22. The Old Salt Award is a recognition of the most senior surface warfare officer in serving on active duty in the United States Navy. Being a surface warfare officer is what I've always wanted to do from the time I came in the Navy. Surface warfare gets in your blood, and once it's in your blood, it's hard to give it up. Locklear graduated from the United States Naval Academy in 1977. He earned his surface warfare qualification in 1979, and received the Old Salt Award in 2014. It's a tremendous honor to have been on active duty as a surface warfare officer for all these years.


Everybody, Steve McBurn here, one of you Dodge. What do I have here? Just arrived, 21 Chrysler Pacifica. This is a Touranel Plus. Nice cool thing about this one. It's an all-wheel drive. You've all been asking for the all-wheel drive, a lot of customers asked me. So this one's all-wheel drive. Has a stone goal, seems still in there. This one's got a lot of options. So watch for some videos for me. I'm gonna post a couple more videos talking about the FAM cam and showing you how the stone goal works on this one. So, Steve McFryder Mountain View Dodge, give me a call.