the start by focusing the proportion of a court order denying leave to a man because i think it gets at the crux of what the court had in mind as to the concept of what was required for a case or controversy for declaratory relief the court says until its motion picture is produced or at least reaches some level of tangibility no real dispute could exist because it could not yet be liable for copyright infringement if clean of actually produces something to which liability might potentially attach then the court may be able to consider declarator relief until that time however any amendment would be futile this is exactly wrong because both made you the supreme court case and wrote studios the ninth at that kind of sets five rulings if if we don't have anything sufficiently fixed that we can say that this is actually the work why wasn't the district court correct to say we should wait until there's something more finite well but the point of declaratory relief action is where you're about to do something that could expose you to liability and you've had an exchange of threat letters that we have in this case that articulate every possible theory for why plaintiff should not be able to go forward with the film you have if shoes that are concrete the court below does not say you have to finish the motion picture it says you have to do something and the court says case law requires that you've quote completed all our preparatory work on the product so another something short of the complete motion picture but you've completed all preparatory work and these are well i think that if you if you dig into the case that the court cites in the case that that court relies on you see what the court is talking about the court following its language where it says completed all preparatory work cites the kelly case this is discussed in her opening brief page twenty six this is where the wife of gene kelly who claimed to own the copyright to some interviews that gene kelly had given was approached by the defendant who was a college professor and who was a fan of gene kelly and he was going to publish a book and he wanted a license to include the those interviews in his work the plaintiff that declined and the court in kelley where the language that the court picked up on the court says the court has little trouble concluding that no copyright infringement has yet occurred and even more specifically the court lacks sufficient facts to determine which interviews will be included in the work because the defendant say why haven't decided which works i'm going to include and presumably he was going to try to get a license from somebody else because the interviews have been published by somebody else who had rights to them and at that point the kelley court cites schloss versus sweeney which contains the language the district court picked up on it says a plaintiff does not have to begin distribution of the potentially infringing product in order to have a controversy ripe for declaratory adjudication so long as the plaintiff has completed all preparatory work ok now if you go to the schloss vs sweeney case the because that was the language that the court picked up on in that case the plaintiff was had published a book about lucia joyce who was the daughter of james joyce and he had gotten contacted by the estate of james joyce and the plaintiff was going to supplement her book with some material from james joyce that the vent and the state objected to and court in denying the motion said the court can rule in this case without rendering an advisory opinion the plant does not have to begin distribution of the potentially infringing product in order to have a controversy ripe for declaratory judgment so long as the plaintiff has completed all preparatory work and then the court says in other words the plaintiff must establish that the product presented to the court is the same product which will be produced if a declaration of infringement is a is obtained here plaintiff represented to the court in a penalty of perjury that the contents of what they intended to publish will not change absent the court explicit leave based on plaintiff's representation the court finds that the copyright controversy between the parties is sufficiently definite to proceed i submit to you that that's exactly the situation we have here that we have a draft screenplay that's been submitted to the copyright office and we're committing to stick to that script in producing the motion picture so within the language that the court found eter he's talking about a script being turned into a movie it might be the case although i don't think it is that the script itself is sufficiently final that it could set up a declaratory relief cleaning but there's no dispute about the script there's no dispute we haven't alleged that there's any copyright infringement or any other infringements based on the script this case is about a movie that might be made based on that script so there's a second product coming down the line that hasn't even and music and depict visual depictions which will raise a whole host of additional copyright issues if the music for the script is going to be not marlies music right actually which are not copyrighted and we're going to use music which is not copyrighted and we're going to make a movie follow you script why isn't that the vision preparatory work because this court can't possibly determine what it is it's comparing movie first before you can offer declaratory really what i'm saying is that the declaratory relief that they have asked for which is about the movie can't happen until there is a movie that we can look at and sermon whether it actually infringes any of our rightness of the commitment of the plaintiff to make a movie not a jot or tittle different from the  no no no music of marley we're going to use all music of beethoven right why would that be sufficiently concrete to allow them to get a declar be you could come up with a hypothetical scenario like that absolutely where you could have a hypothetical set of facts where they have a screenplay and they want a very specific declaration that if we do x y or z with the screenplay it does not infringe the copyrights owned by the defendants but that's not what we have here that's not what they've alleged here they have not allege and indeed they don't attach their screenplay to their complaint they don't include there are any allegations regarding contents of their screenplay in their complaint why should the basis for leave because there is no dispute currently about the screenplay we have not alleged that the screenplay itself and they had a screenplay that they were to say this is it we're not going to use any more of the music which by the way they haven't said because the screenplay doesn't fact reference bob marley songs but taking a hypothetical if they were to say here's our screenplay and it's not going to use any bob marley music it's not going to use any bob marley photos it's not going to use any bob marley imagery it's not going to tell any stories about the members of bob marley's family they could be defamatory we would then not have a controversy because we would not be objecting but you wouldn't object to that went back to this record the allegations i would because there's no controversy because there has to be in other words there has to be a dispute about whether there is some sort of a copyright infringement ok there basis for federal court jurisdiction here is copyright it's a declaratory relief regarding copyright infringement so unless there is an actual controversy where they believe that their use of a particular copyrighted work is ok and we believe that it's a violation of our copyrights there's no basis for this cour they can't go to the district court and clean it up because they've already admitted that we have not contended that the screenplay infringes any of their copy of any of our copyrights so they already have judicial admissions in their reply brief page to the script you've got no beef as long as they don't use our copyrighted works we have as long as they don't infringe our rights whether it's our copyrighted works or our trademarks we can't complain we have no basis to complain so so there is no controversy currently regarding the screenplay the issue that we're dealing with here is a future hypothetical motion picture which hasn't been made yet which we don't how the music what music will be used for example how that music will be used there will undoubtedly be if the film is actually made and they use music and they don't get a license i imagine they would make a fair use argument and we would have to determine under the fair use factors whether in fact it is a fair use we have to look at the quantity of the music used what was used whether the lyrics and the sound was sound recordings were used whether it was new performances based on the compositions or whether it was the master recordings we can't possibly make that evaluation until we see in the film how that is used the same is true of the use of trademarks the use of the marley name and the use of the marley trademarks we don't know whether they are going to use the marley name prominently in a way that appears to indicate that the family in fifty six hope road has endorsed the film if they were to do that that might create a claim for false designation of origin underlining back but we don't know that yet it's totally hypothetical because we haven't seen what they are doing yet with the different from a screenplay that wouldn't of you we well again assume it i don't think hypoth i don't think that even works but assuming that they could make that representation that they have a screenplay which sufficiently identifies ever use of our intellectual property that we could evaluate it we might be able to consider that but the current version of the screenplay there is no dispute because we have not asserted that that play infringes any of our copyrights so as to the current version of the screenplay there is no dispute your honor and that's that's where we are so amendment on that line doesn't help doesn't help because it doesn't they still can't allege a case or controversy the other thing that i will point out is that again in their opening brief and in their reply brief they concede that we have never once made an allegation of a copyright infringement we have never once said your screenplay infringed or copyright or something else you're doing infringes our copyright because of that there is no basis for this course jurisdiction because we don't have a federal question that underlies the request for declaratory relief and with that i thank you very much and did not use in rebels or any other royal palm copyrights that stick script and the life story agreement any sound recordings musical compositions or photographs not licensed to or committed to be licensed