had acquired for our show how to acquired in one thousand seventy five right motion picture and television rights to the comic book character sheena queen of the jungle and they brought that concept eventually to columbia pictures to make a motion picture or television show and into various contracts with them signing then those rights in exchange getting the right produce the motion picture here the name issue in this all of us sort out what your theory is here of damages because your complaint leads to a variety of theories but the debate that has come before us has centered a lot on the court one case coke one case talks about expectation versus reliance with you've also the concepts of one just enrichment research and what i'm trying to understand is where you  in this deal which is in my thinking factually different from the baskin robbins situation here you have a a right being conveyed with future performance reliance damage component to mr harmer tillotson many years of his own personal time developing this concept as his job as a producer and when they didn't first negotiate with him and he basically lost all that time and there  factual circumstances that are different here there is the issue to your right receiving a rescission of the contract i think name problem and that's the distinction between copeland and starr and wh is really problematical in this case and problematical i think in all cases where you have this provision which is a standard provision it's been used for decades if this ruling stands that provision think it's pretty much n better if you just let me finish my ok i'm sorry i don't understand in the nature of the industry if this is a series of performances one was the movie and the other was the follow on with the t v production of all mr god was the right of negotiation but if the idea of the least desire stand your theory of the case columbia had with the movie but when it came to the t v production and i know they dispute this but the argument is the perhaps the finding is that they by the time they got around to negotiating  negotiate in this case they'd already done a deal with someone else therefore and they could not perform or were or did not perform so why doesn't  images here but alternatively i think that he should be entitled to get them back once he's given up something for nothing and i think our expert here very stats say that's not the expectation here is that the television rights are thrown free he expects  be the right of negotiation is not a right to conclude a deal so i think there's a tension here that we're all wrestling with you're all wrestling with as a certain sufficient certainty to calculate damages and coke and so pretty much broad brush certainly on the facts of that case that expectation damages in a agreement to negotiate is too speculative so you're trying to bring in a way just to to make it certain but we're sitting in a diversity case we're trying to figure out with the california courts for you have already here already suggested  you relying to distinguish this case somewhat on the fact that eric told worked to promote this character over a period of years that's correct and doesn't getting many planes even if there had been negotiations that did not result in some ongoing future contract to produce isn't that true it would have been by the boards anyway right there but he knew there was an actual breach they when you know she  contract i know but they negotiated and failed to reach an agreement the efforts over the fifteen years that you speak of would have been lost if you will true if if you're going to pursue recession you don't have to make any repayment of any money that receiver tender any or offer any well i think i think no because that puts mr otto back in the position of having all the t v rights but in the meantime colombia has already has already in fact made some some t v shows a contract has now been rescinded so what happens there well i think they did it then they don't have the rights to quickly could you right you said start off by talking about the one nine hundred seventy five agreement what what are the rights that were transferred by that and what are you to find them and what are the rights the right of first refusal if the next if anything else came from mr scott and under that right of first refusal which was assigned to columbia under their theory when he when we go through the records of what he had assigned previously he had made an assignment from you know holding company back himself of all the rights and then when he signs everything to our show he cards of motion picture and television so he recognizes when he's  dealing with these rights that he's only giving portion of the rights and he retaining the rest which means that he can do as he pleases with the rest he can with it with the exception of the one right that was carved out without a first presented to columbia be that's that was the right of first refusal i was puzzled by you have the right of first refusal should mr scott decide to any of his retain rights taining its assignment that option had already been extinguished because the option requires scott when he wants to try to sell the rights which he did at one point he's limited rights to go to the then whoever owns the assigned rights and offered to them and he did that it was like the times another studio universal the only rights that have been transferred by ira tell him he went to universal and universal said no we don't want and he gets this little right you scribe did have a right to sell the galaxy or whoever he wanted galaxy a right to purchase it so you know i think that's that's how that plays out the facts and it gets a little complicated with all these agreements but wrong if you're wrong then you have you have done all of the things that columbia complains about have you not well the only justification for example for having their website is  either get some kind of injunction to get him to stop or they were really damaged i don't think they were damaged here but if he really working image they could have sued him for damages but you know i think with respect to  entered into at the same time and one was part of the other and the appellant or pelly in this case as it has it made it in its briefing and has expressed itself over and over again that these two were in exchange for one another so the fact that things now come forward and try to say that there's an integrated contract in a breach of one does not affect the other simply is as the fall i think on but the fact is that it should not have any strength whatsoever given the fact that they've said with they've said over and over again let's get to your point i was struck by your fairly bold if you don't spend any money preparing for that negotiation you get nothing so that the end of the process here is at least i may be misreading your brief but i got the impression you were saying damages even though there's a breach there's no remedy i'm not trying to say that if they acted mad faith that would be the result and if that's what you what would be the result and if they acted invent it if they acted in bad faith then i believe that they  still under baskin robins if i understand the question correctly under baskin robbins they still cannot receive expectation damages whether they go they get reliance damages which you know that's damages in the sense that columbia gets the television rights and gets all the rights to this chain of character even if they don't ever he gets nothing out of the production of the t in order to answer that i think you have to go back to the very beginning mr eko got plenty from the very beginning i think it was a television contract and where did he get he got the right to produce he got his work out fees paid off the other terms of producer services at the big at the bottom of paragraph seven it says in the end that erico does not render such services employers will be entitled to receive the following then the employer in that case is is the wrath of the personal services episode of the television series based on the picture or the work he received the one thousand two hundred fifty dollars for the thirty minutes and one thousand five hundred dollars for the thirty one to sixty minute he's received that all along that's never been an issue ok and that is the fee for what that's the fee in case there was a television series that was produced and he was not the producer ok now if you go back to first we put in our brief something that i think is important here in television there are producers and executive producers this year otoh has claimed without any evidence to back it up that the the was producer and his and the is the executive producer no he was the producer the man producer in movies generally back in one nine hundred eighty four of the producer was the person who was running everything it was what was that in t v con in t v the executive producer at the time this television series was made that's not the issue the issue was one of the just that the time with this contract was made one of the parties and town well there's no evidence that he had the right to insist on being any kind of a producer he claims a right to negotiate and he claims and a right to negotiate to be a producer now what you're telling us that may mean that he had a right to negotiate and be any kind of a producer well the worry is the word in there in paragraph seventeen certainly is that they will negotiate with him first as a producer all right any kind of a purpose or then maybe his right to negotiate is broader than theirs as broad as anybody can make the word producer but this does raise i think an important point here m for the contract whether or not there was a duty the court below granted summary judgment saying that columbia did reach the contract and there was a disputed issue  well i don't know the answer that but the evidence is that in fact he have some knowledge of abilities and so forth and could perhaps be of help in the television program and the production and as you can see they did negotiate for six months and they came very very close but it was the after columbia right level it does say as producer and and and they did negotiate with him for precisely that role and they never negotiated with anyone else for anything other than executive producer now i'm simply saying that's what the evidence is i want to go back to when columbia back in one nine hundred eighty is making the contract they only that was a motion picture contract paragraph seven hox about what's going to be done if there's a television series or a television motion picture like here's what columbia was willing to do when it came to whether or not there was going to be a remake or sequel on paragraph six there they're very clear they say we're going to negotiate with you and he gets a contingency on television which you say is well that was in the farrelly the generosity of colombia but colombia is basically now saying he has given up everything and for that h be in terms of expectation damages but there's a principle in contract law about failure performance or other remedies for breach which includes rescission and that's that's the one thing that is troublesome to me is th columbia says we get to go ahead not only do we get to go ahead and make the t v series but we also get to exploit this gina character in all media we've got all of rights in this you know character and he has no damages because all he gets is reliance well why isn't the concept of rescission alive in this case with him being able to say i was talking earlier in state court and it was dismissed by the state court now that's not before you at the moment i'm simply telling you that that's part of the record that we could ask the court to take judicial notice of if it were of importance that they brought in a rescission action in the state court and it was dismissed but the point here i think more than anything else and that i am concerned about his the misconception that this directo didn't get anything he had a film that was what is called in turnaround there was a lot of money owed to a lot of studios and so and columbia paid that off in order to get his rights and then hired him in exchange to be the producer on the show as my problem here's my problem you're taking vast going to robbins and saying that it applies in the context of a two part deal on its face a movie deal and or potential follow up some kind of reliance damages that promise to no negotiate to be producer is valueless valueless because you can and walk away from a comic and walk away from it and i don't think a property right which is to be developed by the assigned sign me and yet you're saying we can mid course of this play out of this potential deal we can essentially walk away from one of the material elements of the contract and under baskin robins too bad you get nothing and except your alliance damages and i just i have a lot of trouble thinking that this in the entertainment industry makes any sense i think not part of the california court system so it's a little frustrating what would you think about certifying this issue to the california supreme court i think that it would be run up against it on the other side is that my golly this case doesn't make any sense when applied to our facts because the news about your life distinguishing this appears to be one of those cases i have no degree of confidence  that there are differences and the difference is this there is an agreement that's been put together that something has been transferred baskin robins intention not to negotiate with him at all so we come in obviously always after the facts and the point is you cannot change what has already happened but the difference the only difference between baskin robbins and here that he in fact recedes a good deal of the value he received a chance to be a producer of a movie when he had never produced a movie before i think that's irrelevant to your issue with what did he get for his t v right the value of everything else that you claim he was signing if a movie was a part of the deal nobody's arguing he didn't columbia got what it bargained for and he got what he bargained for the issue in this case as opposed by your own argument is that we had an obligation to negotiate even if we didn't live up to that there's no remedy no effective writing there's no remedy in this particular case and there could have been in two or three other instances no question about it i mean if he had prepared a production tape for instance for per person for purposes of the death of the negotiation if you heard that then on another project runway council by your own client he gave away all of his rights to this think that is important if you look at it if you look at the negotiations that took place and you see how close the parties were you cannot say that he didn't get negotiated with he didn't get with first and there's been no connection no causal connection and any way at all in the court below in this record about how he was damaged by what happened here dismissed without prejudice and some waiver of the statute of limitations so the only thing that is really interim about its appeal is that their images issue on the breach contract is that no i think also our appeal of the finding that columbia breached the contract all right is also very important ok so one could take care of the whole thing so there's only those two issues that are entering the trademark in cyber piracy issues are also interim but their final judgments are there and well because there's no damages that have been found and there's been no proof put on about the damages so even though there was a finding of violation there was no evidence taken on the subject of damages first and as a result of this i require six or the go in for the whole of all of those are now i want to direct your attention to because i'm having trouble comprehending what you're saying you argue there that the registration of this name by the defender constituted a dilution right that's right now what does all that me what that means is that there was a violation of the trademark in terms of trademark dilution there was a violation might because there has been no registration  cause of action for cancellation but mr argue that the registration is the dilution no no the registration of the domain name was the dilution ok and the register there was no registration it turns out and we found out there was no registration of the trademark heister erato so cancellation now that's means that means we have to partially reverse that judgment do we not because the court granted you relief there we can't