to make copies of that performance from the performance that it has copyright can it do that in your view right candidate license from any used parts that person cannot use the recording or parts thereof without getting permission from your client is a correct all right what i said what are you saying i'm saying that a lecture changed the sound correct i don't think that it could be limited in that way because they licensed the use for a simple and that was what was precluded in the work for hire green electra did not have the right crumbly which is a nice circuit case that cage specifically says that the fact that she uses a fact that that model awful lost the use of her image for a certain period of time who was recording with all right let's say they could use the the recording and they could sample it it seems to me you separately argue that but they couldn't say they couldn't use your name as being the person who did that recording i believe you're saying i have a very difficult time with that if the one say random house owns the copyright to cider house rules and i go and i ask them can i publish in there is a sure we'll let you print copies of cider house rules  and then john irving says well that's fine but you can't says by john irving that sounds a little bizarre to me i mean his name isn't the subject a copyright but can it possibly be that the congress or the law doesn't say if  prince of poems by stephen spender and he goes to the copyright holder and says that ok we put in spenders holland and the copyright holder says sure but when you do it we want you to put on your fly leaf by permission of the copyright holder of this stephen spender harm then they violated spender's right to publicity  authors would like that actually who it's fine if express even spender what i think you're saying no they can't do that because if you wanted to say that poem that was copyrighted was by stephen spender you gotta go ask stephen spender's permission to use his name in the book so every time i go for a copy to try to get a copyright i've i want to use something copyright i not only the copyright holder but i've got to go to whoever the author winds or the writer or the singer and ask their permission to say and that is both by statute and by rationale the copyright act has decided that under these circumstances the public public the parties here look to one place and one place only and that's the copyright law your honor asked how is sony to know the answer is very simple the copyright law provides how strongly it is to know so goes to the copyright holder there is no dispute in this case that electra with whom sony contracted was the complete one hundred percent owner of all copyright right in a case like this which simply destroyed the supremacy of the copyright act when dealing with copyrighted works made by ms laws ignores several key issues it ignores the plain language of the copyright statute section three o line  exactly the stuff that federal preemption is made of we're dealing with a work of authorship clearly and one that is fixed in a tangible medium and secondly we're dealing with a claim that essentially more than essentially identically is the equivalent to copyright and all i needs to do all the court below needed to do and all your honors need to do is to look at the fine to see that that is the case in the complaint in the excerpts of record pages three and four underlining the underlying assertion is that there was a creature of the writer publisher the because of sampling which is a reproduction and  derivative work right that is granted to the copyright holder and because in ms law's words sony made a remake of her recording again the reproduction right and i one must one need look only too if you have to go further than that and i don't think you do but i would point out that the court in mr hubert was doing ration yawner of spirit productions contracting for exclusive ownership rights in copyrighted materials if the exclusive owner can't go out and tell people what it is that they are buying but more so than that there are a couple of other well you can tell what they're buying they just they just couldn't get the pick just couldn't certainly jennifer lopez did a good job but i didn't find me on that that jacket jennifer lopez knew what she did and you didn't have a right to do it when anything i court that that is not only logical but it is virtually required under the paramount copyright law to be able to give the copyright holder or its licensee the right to sell and market it is also a permissible first amendment act to truthfully identify a product in your honour's we cited several cases in our brief of page thirty six but let me just quote from  since the user valentino's name and likeness in the film was not an actionable infringement of valentino's right of publicity the use of his identity in advertisements for the film is similarly not actionable and there are a person's name what's the best case copyright that says that the copyright owner has the right to use the name as as as attendant to the copyright o think the copyright law preempts the right to use the net it  i think i could see it through different ways why he's answered that question yes do you think copyright law prevents the states from saying you cannot use the author's name when you when you use the copyrighted work i think i think or else yes i do i think copyright law preempts a truthful identification truthful identification of the of the person that was the first thing you said and i said and i said what's your vast changes for that and you said well look at california's law online blah blah blah when i'm asking about copyright law i put your best copyright case on that copyright preemption issue so it was not protected under the california right of publicity statute there is one other point i'd like to make for all intents and purposes the fleet case that we cited to the court the california state law case except it's in a meeting of the sam recording eyes were calling the case the court specifically stated that because what we were dealing with there was a copyrighted performance and all the copyright holder was doing was exploiting that tricks performance consistent with its rights under copyright which is exactly all that electra was doing here and sony as a licensee that that claim therefore was preempted and the court in fleet says it several times in several different ways and quite clearly so i would submit to the court and i won't take the court's t the right under preemption to stop that exploitation and that i would submit to the court is consistent with the holdings of this court and all this court needs to do in that regard is to look at others but specifically in those cases the court is making this court has made that distinction and i'll just give one example if i can to the court and that is the one case where the court determined that there might be a right of publicity and we needed for that purpose when there were statues five were allegedly in the  california courts in the fleet case and it is indeed the distinction made by the courts in the cases that they cite the two cases the court case from this court the abercrombie case and the hague in the matters case all of them are very very consistent and what they all consistently say is that if you are using a pro if you if the gravel made of your complaint is the use of a fixed performance consistent with have had copyrighted performance fixed in a tangible meeting medium that gave rise to a right of publicity claim not one and the reason is because if you did that then you would throw into terrible confusion the paramount copyright system anybody who is in sony's position would have to do much more than look through the copyright act to determine whether they have the right to exploit a copyrighted work under one of the enumerated copyright rights and you'd have to do more than even look to  contract although i don't think there's any obligation to go back in there never has been in the copyright law to go back beyond who the copyright holder is in the who the copyright holder is when there's no dispute as to who the copyright holder  here everybody who appears in every sound recording would have to grant consent and indeed maybe ninety even people who are p r what about the producers the musicians the writers of the musical composition everybody who appears in a movie would have to consent to exploitation of that movie or to a phone clip from now you know they'd say you'd have to look at think of after i sit there now that i think but it just is not consistent with the certainty this court has did over and over again in cases in fact that i've had one of the things that the copyright law is designed to do not only not that his opinion the fact that there was no commercialized imitation of the voice but the voice was taken from a sound recording makes no difference in bringing the cl