three of them so i'll be spending a few minutes on each i'd like to start with the first one which is case thirteen deaths to two nine four that is our appeal relative to the defendant stewart a on the copyright issue regarding the work titled shooting explosive kits and i'd like to focus the court on our the crux of our appeal here which is that the district court erred when it found pretrial as a matter of summary judgment that this work was a joint work for copyright purposes but not a derivative work and there were two reasons that the court ruling at the sunday judgment states here was ever first and foremost the issue of whether under copyright law this work is a joint work for copyright purposes meaning each author owns an undivided hundred percent interest in the work or a joint work in the sense that both authors names appear on it and they both contributed to it but a derivative work as well turns on the question of the intent of the authors at the time the actual mean new script which was submitted for publication was created that question of intent was a jury question and the district court improperly resolved it also the in the district court was careful to exhaustively go through documents she referred to many documents which in her mind reflected the intent of the authors up until the very time that the manuscript was submitted documents indicating that they were both that they were jointly responsible for the creation of this talking so she she was aware obviously of the importance that in ten issues and i think focused on documents because those documents in her view did not support the proposition that there was a jury issue here yes and the court improperly evaluated those factors for the following reasons there was a lot of confusion here of terminology joint work is something that the defendants threw around at trial and in their pre trial papers  very very liberally and there is a difference between joint work in the sense that both authors created a work and what we're arguing which is joint work for copyright purposes the fact that two authors names appear on a work does not says nothing about the type of copyright interests they have in that work there's two possibilities joint work for copyright purposes hundred percent undivided interest or joint work created by both which is also a derivative work which is what we claim so to look at it for example isn't just reporting a publishing contract which says simply both of them are going to create the work says nothing about the type of copyright interest conveyed by the authors to answer that question and to determine the quality and school of their copyright interest formally within the meaning of the copyright laws a work that reflects the intent of the authors at their once it comes together in the new book their work would be indistinguishable if it merges it is truly their joint where it is a unitary work by intent where both contributions are merged into a unitary whole which is what the defense argues for it or it is what we say which is it was intended to be a derivative work where dr greene contributes his portion the lion's share derived from his earlier work in which he has an exclusive copyright and the defendant out one contributes a small portion of original material essentially stand alone in the form of vignettes there was a hotly disputed fact issue as to both whether they intended to create a unitary work for it to rivet of work lots of evidence from dr green that they asked before you get too far away from your agreement that they can't be for purposes of the copyright act both derivative and joint but but neumar in the ninth circuit say otherwise right derivative work under the copyright act that's how we interpret numbers ok thank you yes so the two fact issues one the intent there was a lot of testimony from dr greene that the intent was to create a derivative work there was also testimony from the other side that the intent was to create a joint work if this required not act as fact find her way credibility and decide who to believe and the evidence on the record was not so overwhelming that they intended to create a joint units or rework that no reasonable fact finder could have found that it was a joint and unitary work and that point is underscored by what the district court found when her on the summary judgment motion in the first place which was that it could be derivative or could not be derivative a fact finder could find either way so when the district court ruled that summary judgment initially in september of two thousand and twelve it came to that conclusion whether it was a derivative work had to go to the jury and we were happy with that what happen optimism once the court made that summary judgment ruling that this was a joint work i mean you should have understood as a legal proposition even though she may not have fully appreciated at the top that it follows from that ruling that it could not acted as a finder of fact and came to that conclusion on the eve of trial the intent issue should have gone to the jury which is why this ruling is in progress and or as a matter of law and should be reversed we should be allowed to submit that issue to the jury because it's crucial then to the scope of the copyright who gets what copyrights in this work it had great implications for the for the trial case  injunction motion which was a permanent injunction which was denied later on and we believe it was it was an error of law and therefore we should it should be reversed i'm happy to answer other questions here w move on to the next one which involves our claims on trademark at mass general with respect to the trademark case as to mass general we have an entirely separate set of facts and issues but the main point the crux of our appeal as to mass general is that our a stock and defense was not appropriately considered below mass general as you know deploys a contract argument to say one dr green signed his employment agreement those agreements incorporated in intellectual property policy which transfers the trademarks by operation of contract law to dr green the case is not about the validity our appeal is not about the validity of those contracts i case is about whether mass general's behavior taken in context and looked at in its totality was misleading as to dr greene sufficient to cause him to detrimental to the lie on that behavior the detrimental reliance is signing the contracts that they now seek to invoke if our s defense is correct mass general as a matter of law is stopped from the point that contract because this is your case with the court looked at the documents and and said that your client executed between nine and eleven employment agreements which incorporated this intellectual property policy which he acknowledged he had to particulars he had to read it and he didn't read it but the hospital can't be faulted for that and this is why the context is so important so let me point out the salient facts that would alter that analysis it isn't as simple as looking at the four corners of the contract he signed here as an equitable stock will allows us to look at the context in the manner in which mass general behaved when he first signed his his employment agreements making references to be bound to the policies of the hospital there is no intellectual property policy in fact that's a nine hundred ninety three he the the policies the contracts are routinely renewed so they're sent interoffice mail to fill it up by someone else with the instruction that says sign and send back the language in the in the employment agreement renewals is identical every time truly identical every time dr green size so this isn't a case where dr greening on his initial contact with the hospital fails to exercise diligence the diligence indicates there's no intellectual property policy that's an undisputed fact the second time he sent a contract with the exact same language in it no intellectual property policy he signs the issue here is that the state of his knowledge as a result of his diligence is that there's no intellectual property policy so was it your position that because when he saw it and his first employment agreement in one thousand nine hundred three the intellectual property policy was not in place he was entitled to assume and all those subsequent years when he signed a contract which  mass generals conduct twerk him give him any reason to believe that the state of his knowledge needed in any way to be updated and the facts in the context are very clear that the hospital not only did not do that but did the opposite so after it talked to the intellectual property policy which it did in the middle of one of his employment terms with no it's undisputed there was no notice to dr green that a policy had been adopted it's undisputed that the language in the contracts doesn't say policies of the hospitals as amended from time to time it just says policies of the hospital so there is no question that the language submitted to him is identical to the language in the contracts when there was no policy in place it doesn't indicate any possibility of an amendment it there's no extra little notice to him that a activities and is not saying anything not objecting no issues whatsoever with what he's doing and they're just sending him contracts signed with the same language taken as a whole in equity is this a representation is there any reason for him to believe that his knowledge is in some way in need of update and we submit that under those circumstances here he did reasonably rely on the on the conduct of the hospital to his detriment now it requires looking at the hospital's conduct outside of the four corners of the contract in total in light of the fact that when he began there was no policy we believe that his reliance was reasonable in light of what was in total taken as a whole misleading conduct by the hospital it was in sole possession at the time it's since in the renewal documents of the fact that it had adopted a policy it knew that he didn't that the language was the same that it was asking him to sign it knew that he didn't it knew the import of the policy it had adopted on his rights he didn't it also knew that he wasn't a warrior and also what was the what was the affirmative misrepresentation of the hospital how do you divide the progress of misrepresentation of the part of hospital one number one by failing to assert any type of ownership interest in the marks after it adopted the policy with the knowledge that he was using them in a way that would have been inconsistent with that policy and in our brief we have cited email between dr green and the m g h legal department in which it is obvious that they understand that he is conducting non m g h related activities associated with the trade and among other pieces about and in addition there's an affirmative act here of sending him a contract which looks exactly like the contracts he signed when there was no ip policy knowing that there is one is that fair you look at the the policies that underlie contract law in  massachusetts implied covenant of good faith and fair dealing is this policy in line with what mass general is doing here to dr green i would submit it certainly does not they are the ones who  what they've done he does not they give you no indication in fact you give them an opposite indication it's ok with us that you're using these trademarks as though they belong to you the affirmative conduct we believe is established on the record but it is it is it is a representation by conduct i just have a question about one piece of information that may or may not be in the when he signed his original contract the ip policy was not  but there were other policies and procedures is there anything the record because those would have been incorporated by reference is there anything in the record suggesting that you read those into what they were it was not a top of my head i don't remember the exact testimony about nine hundred ninety three when he signed the contract i believe it was testimony that he was aware of the policies and what he was signing i can't point you that that dialogue never happened and i think for the purposes of the summary judgment issues and this was an issue that was decided at summary judgment so i don't want to invoke what was said at trial  here we believe that in equity you're allowed to look at the totality of the other side's conduct was it reasonable under these circumstances for dr greene to assume that his knowledge did not require any updating we think so and clearly he changed his position to his detriment and now he's lost his trademarks as result we believe here a fine it's classic x equitable stop we believe that mess general should be stopped theories as to why the infringement ruling against him should not stand and i will address just two aspects the first one is he serves a contract theory and invokes the publishing contract and says that because the publishing contract has both of their names on it they both own the copyright to treating well in some sense that's correct they both have their names on the book they both have some kind of copyright interest in treating but the publishing contract is silent as to what type of copyright interest that this is that it derivative work where each author owns only what he contributed as copyright interest and only what he contribute d or is it a unitary work that publishing contract says nothing about that secondly there is an argument that under the copyright statute treating is a joint work well it's impossible to determine whether there's a unitary whole here if we don't know who contributed what this goes back to the fact issue of which author contributed what and what was their intention was to do to riveter work or not i also want to point out with respect to the contract argument that the copyright registration certificate here filed by the publisher indicates that the publisher own the copyright to treating explosive kids by operation of contra the law is that the registration certificate is prime officially for proof of the facts that it contain on the record before the clerk the only owner of a copyright intreated explosive kids is the publisher it certainly is not jointly owned by out one and green as you know terry work so we don't believe that you can invoke the publishing contract to establish anything as a matter of law we also don't believe you can say well it's a joint work under the copyright act because you can't determine that until you determine whether or not it is driven to work finally it is a de minimus copying argument in the appeal of dr outline which says well it was only two percent of the book that we proved were a small percentage of the actual text of the book was demonstrated to be infringing dr alan only infringed point zero six percent of the book and therefore it's such a small amount that it's de minimus and not actionable here i would point out the case lost pretty clear it's not simply an american numeric comparison a copyright infringement doesn't turn on what percentage of the work somebody took it looks beyond that to the quality of what was taken it looks at whether what was taken was core concepts and in this case what dr avalon was found to have french were key concepts key pieces of the book so the numeric argument is is not the guiding light here and finally they make an argument that well since the joint owners of treating it is substantial similarity and again you can't have substantial similarity unless you determine the joint work and again we believe that that is she was improperly decided and needed to go to  dr means appeal and i'll begin by noting that this case was not tried it was a summary judgment case so there is no it was reference to trial testimony there would be no trial testimony really these issues because mass general  consumer judgment my screen was a member of nasa general's professional staff for nearly sixteen years from one nine hundred ninety three to two thousand and like other members of the professional staff his service was not one continuous term but rather a series of in connection with each application a candidate fills out an application for appointment in each application for appointment the candidate represents that he will abide by all relevant rules regulations and policies of mass general relative to  international policies he would agree to read those policies and with his signature on those applications goes away any argument he might have to reasonable reliance on any conduct it conditions the appointment on the candidate's agreement to abide by all relevant policies of mass general dr green accepted ten different appointments that during the course of his time at mass general in every single one of them if they are created by a member of his professional staff during the course of his affiliation with the hospital or if they are used to describe a product or service originating was or associated with now is general represented in the book in one nine hundred ninety nine two thousand and one dr greene was conducting a study at many images and n g a examining the effectiveness of the model described and he expos involved as collaborative problem solving also nine hundred ninety one as he was winding down his first guy dr greene also as principal investigator it was commencing yet another study this time examining the effectiveness of the problem solving approach and examining the relative and combined effects of that approach in pharmacotherapy in july two thousand and two the portress these amended its intellectual property policy to add a third circumstance in which it would o trademarks and that is that the trademarks were if the trademarks per pain to significant institutional activities which was to find its activities that receive direct or indirect financial support from m g h that dr green never had reason to understand that by conducting his work in the way that he did by using m g h facilities by noting his relationship with first of all in the mass general brief we point out many discrepancies in the description of the record in this case so when my brother says that mass general was aware of all these activities what's prohibited by statute or regulation material can be incorporated into a contract by general reference something the court has already noted in the mcdonogh case which is discussed on pages twenty two thirty of a brief directly on know for do sherry duty exist mass general had no obligation to disclose to dr green particularly what dr green was representing to mass general that he was going to read the policies that nice generals out franklin was in the fourth principle was the c has already alluded to as well is that if someone to sign except a written offer without fully acquainted himself with all terms and provisions he's nonetheless bound by those terms and vision those four principles  as the find in the copyright act in iraq with respect to loose language you will note in a footnote in the courts this record summary judgment notion is that she accuses dr green of loosely using the terms joint into riveter as a ship can be established only one of which involves the copyright or the first is by contract governed by state law the second is by operation of state law such as program it was in only if there is neither of those two  operation does want to look at the copyright act and that's in cases where who ownership that ownership resulting is alleged to result from statutory co authorship under those circumstances the copyright act applies that is not the case here it was a written contract here between doctors screen out on as author and the publisher that contract included a hand written edit and mischel by both doctors green and album law stating that the copyright to the work was to be jointly registered in their names the book was referenced as a single work there was no reference to a compilation there was no reference to a derivative work and if a copyright is registered in two people's names without qualification each of them all is undivided undivided interest in that copyright that's what the contract says dr green doesn't dispute sign describes seem to acknowledge they strider about it intending to create a joint work in the process of not go very well for his point of view and so he ended up doing most of the work that's that says a cal and so the of the time they submitted the manuscript that original intent they're going to do a joint work as he would put it no longer applied now are there other nevertheless viewed as a joint work well when he first say that that analysis is applying the copyright act so i don't even think that analysis applies because dr ablow one's interest in the copyright is established by written agreement and so you don't even reach the copyright act in your disk describing is the and mr burns the president is describing is the analysis to determine whether something is a joint work under the formal provisions analysis in that this court can affirm that this record decision on any basis and i think the contractual argument on this record is so clear that the court need not even even reached that issue and it just makes the resolution of this contract in order to convey an interest in a copyright there has to be a writing is the statute of frauds and copyright act signed by dog or his authorizing agent conveying the copyright none of that exists in this case the book itself the the offices neither of the doctors took issue for years with that designation no one ever sued the publisher nothing of that nature ever  question let's say for it perhaps you could help me here just say for example you have an author of a book the author of that book then gets together with a playwright in they write a script for a play based on the book does the author of the book then lose the copyright protection visa v the person that he collaborated with for anything that that that that the the playwright the second person then draws from the from the script from the play script even if it was clearly drawn directly from the book the answer to that question is twofold if there is a contract  which the author and the screenwriter agree that it is going to they are going to go on the copyright the answer is yes if there's no written agreement you apply the copyright act and you get into the question of what was the intent of the parties at the time of the writing of the screenplay if the intent was to merge the contribution of the first author into the stream play which becomes a unitary interdependent work then the answer is yes the intent is that it's solely derivative if the intent is that it's only derivative then each author only has a copyright and the original then it is a derivative work as of the first work and the authors in the second work showing that doc at one had access to the explosive child and that the whole point slides were sufficiently similar to language an explosive child that a fact finder could infer copy this work but i would suggest that in order to proceed without fear of an infringement action by author a author b must also be able to use language to his probative lee similar to language in the