joyce moore and first i just want to thank the court for rescheduling this argument and i'm pleased that my opposing counsel mr harvey is healthy and available to participate i know that the more is regret that they can't physically be present in court for this a case which is so important to harvey wrote to his brother who was shepherding the project you have to have sam participate in this movie the record shows that both the weinstein's and concord market the film explicitly to sam and dave sans the trailer for the movie and the advertising don't suggest a story of backup singers rather they promote the storyline about soul legend's even the director malcolm lee suggested that that was not what his film was are you know broad strokes you're saying they know sam and they do they know are you speaking about their personally acquainted or you're saying they like everyone and who knows anything various points to the to these in the records concord record was going to do a music video with sam moore he had had produced he was going to produce a record album and they and they they bad that just shortly before the film  got underway harvey and bob weinstein produced a movie when they were at miramax called and they said only the strong survive which was the story of the legendary period of the sixty's of stax records they photo in the film the film does not contain the name sam moore and it doesn't contain his picture and that as a result no one could understand that a fictional film concerns him and his sixty's duo sam and dave but very respectfully under arizona law and the law of this circuit the district court's ruling was on duty restrictive when dealing with the right of publicity whether sam moore was identified is a question that looks to many indicia personality with her voice you have tom waits with his voice there are there are ways in which you can summon up the personality of an individual in our case we feel in the publisher the analysis and if you look you know and her discussion in the brief as  said it's three paragraphs long and she ignores the fact that a nickname can be sufficient to trigger a publicity issue and what we might say is there are many more elements besides just  publicity case most right of publicity cases the classic one is you know the take somebody stays and you you and you say you know by x product under that person's face or you or stories that are generally inspired by factual situations that have been in the news do you have any cases that are closer to that kind of situation to support you because that's what this arguably campaign that brings people into the theaters cuts closer to the chase if you look at the advertising for the film the trailers we had as a disk that contained almost thirty  television ads as well as a trailer these short snippets portray a sixty sold duo which has a legendary sebas peck to it they don't communicate this the storyline which the defendants trumpeted that these are backup singers there's nothing in the advertising that suggests that their backup singers even the director when he was deposed and i got a quotation from him in the brief and even the director says that there is nothing in in these ads that sort of suggests that these are backup singers they portray them as legendary when people question which is obviously it should be so i think your mind in connection with this matter the the nexus between publishing on the one hand and first amendment on the other i would respectfully submit that this case is not 's critically determinative because it becomes a question of what legal standard do you intend to apply when you deal with a case like this the the and respectfully the case law has a handful of standards a high case gives a very detailed discussion of several different standards in fact looks at the sixth circuit and how the six circuit has navigated the shoals in a complex way and i'll just add that i know my my twelve minutes have expired but if you want to certainly continue on this point which is you mentioned yes i will that in the form of a defense to a claim that otherwise to be made or is that just not part of the right of publicity in the first place you see what i'm asking i think i think  plaintiffs in any fashion is the polly dora case which is a california supreme court case involving the movie the same lot it was a fictionalized movie about a bunch of kids enjoying playing  harvey's comment just just now we we really don't think this was raised properly but his foot no fourteen on page twelve of his district court brief is is  primarily designed to reinforce their argument that there is no that that we did not properly raise a choice of law issue and he focuses on the comp of the celebrity to protect his and his publicity rights in the first amendment there is an ad hoc balancing test and you look to a number of factors which have not been breached not been presented and it was the defendant's choice not to do that they specifically asked permission of the court to supplement the brief and the court rejected that authority and they said we're going on what we've got and they did not have this issue before them i would i would also add that in dressing in addressing mr moore's publicity rights the district court absolutely omitted any discussion of the defendant concord advertising inserts which i mentioned earlier but i want to reemphasize this point because if it is critical to mr moore they had advertising inserts which do not have any protections as expressive speech these are advertising promotional material intitled the original so men are at stax they were incorporated in every cd and every d v d and i'm like the film because they're not expressive speech they use his entire nickname the original so man and and one of the trademark disputes that we have with the courts analysis is we do has been his trademark is this the phrase so man has been his trademark for his professional career and i'm sorry but is it true that the item insert you're referring the central stax titles and thousands more they are promoting their record library under the brand the original so men are stacked that takes is published and this is an issue not addressed by the court below addresses his publicist writes we could have had a case just on this issue alone and that would have been sufficient to get mr moore to a jury does this advertising insert exploit him properly his professional persona to market to market products that are not seeing more and that's and that's what we believe at the very least i understand the  complexities with with motion pictures we do not think the first amendment issue was properly before the court and it was the defendant's choice it was the court's decision was the defendant's decision not to bring the first amendment into place you don't there because that issue is not before you the only question and publish the is did arizona law which says you gotta find the name in there and the judge said i don't see sam moore's name and we say whoa you've got his nickname you've got all these other indicia let a jury decide whether sam moore's persona was used in this film and if the defendant a later point brings up other issues and then we'll deal with it at that point ready to compare thank you