from appearing on behalf of gerald wayne harbor and g g one ten productions incorporated the issue in particular is rather the copyright act precludes application of the lanham act to communicate of works such as soames or in this case on musical are later incorporated into films or television series there is a seminal distinction between that case and bar and the situation in daystar which daystar actually addressed accurate presentation of what the court said it said if they did repackage the goods as their own that there would have been a case here in daystar the important part of that if there was that they didn't fight in any respect to the copyright act they said if you repackage someone else's goods even if it's communicated work that may be a violation under the lanham act and i am talking about page thirty  d or to chrysler to put in their cars that little man cannot claim that they were the manufacturer of the engine outside of written agreement or work for hire situations which is not what occurred here they cannot you say that that's their engine and take credit for the stream of commerce and mislead the consumers in this case the consumers would actually be forward and not the purchasers of the car the end product in other words just because the engine is later are afforded different entities under or the different television program sister sister sometimes we would see our client get the credits and sometimes they would not and this is i and a very popular site amongst the consuming public and people in the industry so when they would go to the site producers people who actually look for people to make these cues for their television shows they would see  rather than harbor they would see a different person they would contact that different person they would not go to the actual source of the goods which in this case in many cases was my client did your client produce something that was  honor i agree with your ear assessment obviously with regard to what the court has said they're hoping and again i'm relying completely on the dig and it may have been something that had not considered this problem i do not believe that the and being prepaid pursuant to that license was the crux of the claim part of it there is a breach of contract claim and here because they weren't paying being paid the rates they were supposed to be paid so from our understanding alas there is permission rights and was getting paid in fact it was when these rights changed when it got reduced from fifty to twenty five percent that my client was actually alerted hey what's going on here started doing some research on the internet and this was in two thousand and four when when quite finally said hey i'm not even getting the right credits very soon after that we were retained and we filed suit again under our interpretation of what happened here the facts there was no one strange meant there was just tell you to pay according to the license that was given forth work for hire in fact if there is no work for hire contract nothing written it's very difficult for someone to claim that's what happened but of course it's the intent of the parties that controls and you can look and see if someone's an employee in getting paid and so forth  in this case that's not what happened then and again a very good indicator of that is the fact that our client retains fifty percent of the copy composition copyrights and was getting paid pursuant to those to those rights honor what happens if i believe in most cases and perhaps it's not it didn't work this way on every single case i mention sometimes there are mistakes but sometimes what happens is they talk about the music they want they make the actual cartoons or shows and my client will watch them will sink music to the particular show there will be a time where let's say they will need seven seconds of music or fifteen seconds of music or so on and so forth and it's something we don't think about but it's inherent in every t v show we watch the music is there my client is someone who provides those services and creates those cues puts them on tape so that they're perfectly sunk to the end product and what happens is if he's not the intermittent things if there's a high tension area for instance you'll have louder or casual type arrangements but basically are the music that you will see in the shows and if you watch any of these shows you'll you'll hear it through through you don't think of it now but someone is actually taking the time to think ok i need seven minutes of music sometimes it'll be very simply just cutting and there won't be much work at all sometimes he has to change what's on there so that it will fit neatly into that seven second window but that he looks at it and it's an artistic decision and he'll say ok we need this it we can go with the main intro music or we have to change it into something different very often  that way it went well he would look at it there was some artistic decisions involved but there was basically time we need this certain amount of music and there was some type of collaboration and it was some indication of what was wanted from farquaad in certain instances but  was original music from my client general duane harbor and he won ten productions he made artistic decisions and very often mr and again there was a lot of different situations sometimes they would work together it might have provided a problem with certain portions of the copyright action claim but the deck in that case was not intended to indicate that the holding but it communicative product can obviously protection under the lanham act should only turn on whether or not minor instance the music it is the music that the t v producers are purchasing or rather the right to think the music to the video shows that they're producing is not whether or not the music comes with certain changes or whether it comes from council client or my client services the t v producers purchased from my client were to obtain the right to license the music to sync it to the video and that is what was given to t v producers who di television show into a single format in certain instances that could be done and provided to my client as one dac tape with the show already on it or could be provided separately with just the music use provided but if i sinking to the completed show and that it was was provided to the t v producer is not what was provided according to that allegation is not what was provided to my client therefore it would fall directly under daystar we're not talking about a situation where we're given for example album or as the d and we've just taken off the label put on our own label and provided it to the t v producers and said here you go here's a product you asked for instead we'll get in something that we don't have to do something further with which is to think it's the final of the problems with with this issue is that the court judge gave plaintiffs an opportunity to amend the complaint after briefing and oral argument regarding the daystar case and the problems that the complaint faced with the days of our case and instructed defendants or what defendant gave to the television producers or the film producers and that's an excerpt of record twenty four and the second amanda complaint failed to address that second flaw what was it that far clark gave to the defendant the television producers and judge fisher hauled in excerpts of record ninety two plaintiffs do not allege the defendant stole the tangible product in other words the dac tape that was provided  plaintiffs or the cd rom as provided to them that the plaintiffs allegedly produced they refer to themselves as the producers of musical goods and services that are sold and or licensed to various television and film production companies in addition they refer to digital media containing their music that they gave to defendants however players do not assert the defendant actually gave this digital media to the television show producers and the court was referring to paragraph fourteen societies know how to pay the various artists but think of it nothing more than just music it's just it could be five seconds of music as opposed to an entire song so for example when live performances used to occur and you would have somebody sitting at a piano or an orchestra sitting with a conductor and they would play along with the live action as it was happening right in front of you sometimes it would be silent sometimes there'd be someone walking across the stage and playful music a crying for two seconds those are all cues the difference now is that saying that the plaintiffs don't have other remedies here is just that this particular remedy is not the proper remedy when what they're seeking to do is protect their creative content we know the origin of the musical basis or because the day star case wasn't concerned with whether or not it could be proven that you only need to give credit to a single individual or if you could track the track the chain of title and there is no problem and you should go ahead and for credit own and selling them what he was selling to the television producers was the music itself not the dot tape or the cd rom on which it was provided complain as to the pundits and that's what judge fisher recognized was the failing with the second in many complain a publisher of the music and music publishers typically typically have a written agreement with composers or musicians who provide cues for television shows and films and the agreement usually states what level of credit is to be given oftentimes t for the written so i'm not quite sure i haven't done the math yet and as i just like this ruling i think where it gets a little bit confusing is that if you look at days for any think about the services that were provided or the goods that were supposedly provided in that case and this goes back to your honest question regarding whether or not there were edits or changes made in daystar the completely film that was the subject of the dispute involved segments that have been taken from the campaigns video and then additional works that were added to the other part to the beginning and end so you could look at that segment as a component and it doesn't make a difference it was only one component the fact is still that the entire product was what was represented to the public was the defendants did not the pla table leg that had been provided to him by the plaintiff and incorporated the table leg into a sample table which was then offered for sale and the court said that it makes no difference that the defendant acquired the table leg which was only a component of of the table for the plaintiff because the district was not concerned with the source of the component parts it was interested in a table that conforms to the bid specifications and the sample met that requirement so it really doesn't matter whether we're talking about a component whether the music user on a component of the top finish television show or whether it is the product itself it's still a communicative product that was what was being sold and that's what the second man complaint repeatedly alleges was misrepresented to the television producers the closest they come to saying what was misrepresented is that defendants represented to the television producers that they had created the music as opposed to giving proper credit to the plaintiffs for having created music it wasn't about whether or not a tangible product being sold in the marketplace had had a label removed and replaced with defendants it was about whether or not  llectual property was being given proper credit and again they started spoken on that  in the television show in the completed television show and if you look at i m d b or other websites looking for the credits for it you're looking for the credit of torrent providers of segments or components of the television show and is the essence of their harm as the largest yet at the same time they want you to ignore that it's the final television show that's at issue and instead focus on what did defendants provide directly to the television show producer and they need to do that in order to overcome daystar but they can't have it both ways if the credit about which they're complaining is the credit not afforded on the television show which is shown in various places in the second man to complain that they can't say but at the same time ignore that for purposes of a long list maintainer claim under daystar and instead look at what was represented to the television producers not really an issue here with the television producers were buying was the music and the right it more importantly t tell television producers for the television producers create the final product which is the television show television series sister sister died and it everywhere in the complaint that so much what was provided to the television producers makes it clear that it was the music and not some tangible good and the distinction cannot be drawn to remove this case result have received published credits for such services which seems likely to cause confusion or to cause mistake or to deceive us to the origin sponsorship or kubel of plaintiff services or commercial activities by another person doesn't specifically sure found an amendment to be necessary certainly would be easy to say upon information and belief the labeling was changed another thing that was discussed very much it seems to me that there is this thing congress and i know i've discussed this a little bit before but the fact that it's later subsumed into another product seems to be a big issue and it should not be the consuming public in this case a marketplace where other people it's being passed along and people think that the wrong person made these goods they'll watch the shell and think that someone else handed these that tapes to these to the producer or someone else them and it will cost my client b origin of goods within the meaning of the lanham act define the term origin and not to cause to have any preemptive act with copyright law with patent law for instance the issue with the example that i gave earlier and that's in the brief with regard to an engine in the when yes you are on earth with with with all with all the discussion about the intellectual property rights and again that's why and i made it is dicta but it's important that it qualifies what did starr was trying to do in determining the again and again and i apologize continuing to go back to it but what they said was there would be a land and i claim if they simply repackaged it again if it wasn't out of the public domain it would be a copyright claim as well they were not intending to law or copyright law or anything like that we're just saying that we're talking about the random act it's meant to protect the goods and that's what we're here to talk about that's what might my claim that is alleging was misappropriated that  that tapes were presented to t v producers and whether labor was ripped off or whether he handed these to the producers in a bin that said far quires that tapes however he misrepresented the origin of those goods to the t v producers the result