the issues before the court there are essentially whether the trial court abused its discretion in granting the injunction and then the noble review of law with respect to the underlying issues that caused that injunction to be issued most  i guess the most important one certainly is with respect to the substantial likelihood of success on the merits and that is that is pretty much entirely fair use argument this is not a case where my client used copyright like the master case is something  make the division here as between the copyrights basically what you've got you've got several audio visual images with respect to elvis presley's life that will argue in fact in terms of the second i want to know what kind of copyrighted work were they they're kind of a hybrid it's a little unusual because he's an entertainer so to do historical account of an entertainer by the very nature you're going to have to use one of it's one of his creative works but that still photographs granted are a little different because there are entire we use the still photograph we is i mean this is a this is a fair use case there's no allegation otherwise i think frankly we didn't get a chance to develop it thoroughly in the record we felt that there were actually a couple public domain arguments but they're really not for you today and certainly the bulk of them are sure got to be drawn between the audio visual worse and the music which are basically being used as they were originally created in our show i'll be an excerpt and as opposed to the photographs intelli in the kelly case in the but here you're taking an actual i'm assuming it's a black and white photograph in many instances you're taking that same photograph and using it in total you're not using a thumbnail of it i mean you're doing it without the permission of the cop well of course well i will see there's other reasons why we think that's ok but that's exactly our point with respect to the still because somebody that wants a high quality if i can photograph of elvis or elvis in his father and they go down to hollywood boulevard and they buy one by the way  not there might be for sale there they're getting an eight by ten glossy here they would literally have to first have the technology to do i guess what they call of the capture of the photograph and somehow download it and by the time the credit is out are you arguing that you fall within the a high quality beautiful photograph of elvis is going to substitute the fact that he appears on a video and they're going to capture it and transfer it over harddrive or whatever the technology would be and then print it out on their printer they're not going to be the same hold yes because then there's no damage to their i mean if they just want to view it there's millions of places they can do those photographs online in other words we're talking about the actual copyrighted work harmed the market for that copyrighted work if the artist question is taken as opposed to it's logical extreme that somebody who was about to spend five dollars on hollywood boulevard to buy the photograph is satisfied instead to just be able to look at it on our eldest shows granted they didn't know exactly how they were going to be used in this show but they were on notice as of the year before we released the set of all the stuff that we have use now we're going to use that we had used those clips in previous elvis shows in fact one of the elder shows called elvis forever was done nominated in essence a one hour trailer for the sixteen hour defending that all of us so it was known that that was one to be part of the bigger show and they did nothing and they allowed us to go forward and spend all this money and commit to these two hundred fifty interviews location shooting our original score we spent two million dollars and all of a sudden they come along and say well we'd like to enjoy  let us know that they actually did have a problem and they weren't just rattling their sabers they sent us a demand letter back in june with respect to all this forever and never get sued on those clips that we used the same clips are being used here i i think that's probably a correct result here quite possibly i mean there's definitely a possibility here that ultimately you might find that some of the uses were not there we don't believe that but it's a possibility and that actually is exactly why ten thousand a minute i thousand a minute seven thousand a minute so that's exactly why does nothing should not have been granted because but i thought they also told you that they intended to in essence produce that you're doing number two it's too speculative to support an injunction given that we have you know sixteen hours of our own original product and five percent of that perhaps is their copyrighted works it just doesn't seem right it doesn't seem take that they took quote unquote the heart but that's all that was historical and newsworthy and in the march to communications case in the alley out of the alley fight in zaire there was also that argument made and he said but that's all there is is the punches in the fight that's what's important to the contained in the definitive elvis that you caused this court to do to or from the standard enunciated in harper versus road with regard to taking the heart of a copyrighted work and there's nothing that should change this court thirty seconds of that you are taking a significant portion of that and what they do throughout this eleven hours is they skim the cream if if you watch it you'll see an interview and then as the advertised you're go you're taking the heart of that and and i think that in terms of the question of a transformative use there's nothing transformative about taking a television show and putting it on videotape you and i just wonder if you're going to do a biography of an entertainer if you're not going to have to do this sort of thing take clips of the entertainers were well let's look at the cases because i think if property and they turn around and say oh i'll pay retail that's not the way the copyright act works if you if you appropriate a work as they've done here then you can turn around of this kid on a stage and say i know we took you know the famous are so they are arrested and knowing everything about absolutely and that's different from stealing somebody and you're right and your honor you're quickly entitled to do two hundred fifty interviews you're entitle to do whatever you appropriating the performance all its value as a performance that's what's going on here is they're taking this as entertainment and they are utilizing exploiting the entertainment value of it they're not entitled to do that to prove a point the first amendment interests and inherent in a parody of a transformative nature of a parody and the fact that a parody doesn't compete against the original product you are going to sit there and decide to do not buy your original song pretty woman because fact that there should have been a license that could have been a result of harper versus where they could have said hey you know what the actually if the for biography people license this kind of thing every day why don't you license it the nation magazine and because my clients want to be able to exploit these works they hone in their own way they want to be able to create if there's a definitive almost collection to be made it is not to be made by someone who just oh it's a biography and appropriate the work is going to completely destroy the market that's and i believe that answers both questions well now i'm not necessarily because if there is an ad market for al this or as any other part of property in the law recognizes it as i think we have to look one of the factors we have to look at is whether or not the market is harmed i think in looking at that we have to determine whether or not a market would still exist after this product  disturbed the market will be significantly diminished after this product is distributed it's yes and injunction is not upheld because everyone else will simply steal the same property you know you're saying  producing an elder show and you know the passport just listed master quality stuff for free they never paid the copyright holders are you going to turn around now you feel like an idiot if you pay the copyright holders after what these guys have done you completely demolished the market for my clients because my son i'm going to pay a passport gets it all for free and it's going to find out where they got it from because you don't get the stuff in the public library example you know if they had just had all of these interviews and then just a second or two you know throughout this thing but that's not what they did and that's that's why judge when i was commenting about the advertising that's not  trailer i mean here you have taken some really good footy and used it throughout the sixteen hour disc set and how do you respond to mr hedges argument that you've sort of sullivan show they have never shown an effect on the copyrighted work they use the circular reasoning our business is to license clips and who in their right mind would ever pay forty pass for gets away with it it's not a question of passport getting away with it if it's a fair use we don't have to pay for it should begin with and they don't address the fact that the market will continue for fictional prised i used to work in a studio if we did a movie and elvis was on the t v during a dinner scene that's not fair use we still have to license that clip from them but when we're