he signed a contract originally that said he had no right of copyright is that correct that was the original agreement which was then terminated on to that original agreement also provide that it couldn't be amended except in a writing that is correct however new york law right so on the way could be amended in the writing and you are claiming that it was amended nowhere claiming it was terminated and superseded by a separate agreement orally that both parties agree to that that is what mr kushner would testify to it's only that that's the only evidence that the agreement was terminated and a new agreement substituted right i would suggest that the record is replete with other in disha that the parties engaged upon a new course of action on july twenty first using it could be terminated and orally yes your are new york law this was not an issue that the judge forced decided it was however raised in some of the briefings below raising the issue because i think that it's close to sanction will be behavior sanctionable behavior on your part to claim that agreement that says that can only be amended with  writing was amended orally your honor the new york law separates and distinguishes modifications that are oral where there's an oral modification provision from from terminations that are oral it did not have a no oral terminations clause is there or is there a terminations in the record that i missed the terminations of the first terminations it was terminated unilaterally no the parties did in fact it was ms terraces suggestion because she wished to engage him as a ghost writer at that point is it is this the writing the termination apart from the verified complaint anything that i can look at that would convince me that the book both parties agreed to a termination well certainly there was some text messages where mr terrill stated that she felt that had now not only gained a writer but a friend at that point where she sent him a check five figure check that was not consistent with the collaboration agreement the written agreement this memorializes essential e her understanding that they are now on a new course of conduct but your theory is that the terminations was oral that has to be yes how does that get around section nine which says all notices  israel view chopra twelve new york third one fifty eight two thousand and nine looking at g d l g o l sorry fifteen dash three zero one it distinguishes oral termination modification agreements agreements that have no oral modification from agreements with no oral terminations this agreement had a no oral modification clause it did not have a no world terminations was and explain the significance of what you are saying to if you don't think of terminations as a modification no your honor do you concede that absent this alleged ghostwriting agreement he has no claim to the construe what that means are we talking about that being just a simple joint authorship where there memorializing yes where he isn't really not our author but an editor at that point you have any claim to copyright that's what i'm asking you i would suggest he does given the changed circumstances given that i don't believe that that was an assignment of rights but rather just an memorialization as to joint authorship but five point one says crutch more relinquishes all rights to the work and it also says this section survives any terminations of this agreement so how can you have any claim to copyright in the work well for whatever he did and i would submit that the work done prior to july twenty first two thousand and fifteen is sincero sinister may have a claim to to the extent it actually then survived into the work itself and certainly the court can go through and figure out how much of that pre twenty one work ultimately was published and is what we're talking about everything after july twenty first and when we go through the record when we go through my client telling mr terrace he's writing ten thousand he's writing fifteen thousand write however many words he's going and giving her fifty percent sixty percent seventy percent done updates with writing the book itself that new material would not be covered by a terminated agreement where he was not performing the work under that prior agreement but performing new work how was the agreement terminated that's where we started this discussion in a conversation between mr pressure and oral conversation yes your honor you heard the sections of the contract that judge at just read to you that said  couldn't be terminated except in writing it does not say that i'm sorry i think you'd object he was reading the section regarding the rights and us and how that survives the contract if we look at section twelve point one it's talking about modifications and it says no oral modification it does not say no oral terminations and new york law does treat them separately we did not brief that issue because it was not part of  one of the things that judge forrest decided but below it we did raise it and the case i cited to your honor before supports that new york does it maybe for a little funny under law i recognize that it's unusual but new york doesn't fact distinguish modifications and terminations and this but this did say all notices shall be in writing you're saying terminations did not require notice and the next question then would be why would the terminations know it why would mr cresswell be the one who has to give notice certainly if both parties are jointly deciding to terminate mr cripps personal term and he's not has to give a notice himself to the other and having to give a written notice to him they came to an oral agreement and i ask you another sort of high level question your thier overarching theory here is that the relinquish relinquishment of rights and the collaboration agreement was no longer effective one way or another and an assignment of rights had to be in writing yes your honor but the the ghostwriting agreement was an oral agreement yes  honor and with all those are true then doesn't it follow that even if ms ten taro's had paid the full hundred fifty thousand dollars you would still have a d m c a twelve zero to climb because she was misstating the owner of the copyright because he owned it at that point yes your honor however the parties were prepared in the usual and customary course to execute supplementary documentation which is customary in the industry certainly that if you have an agreement before you write something after you've actually already written it you know what the law is not actually clear as to whether or not pre creation assignments of work are effective or not and everybody after the fact goes through and says this is the work i am assigning it and he wouldn't have had any concerns and he would have waived his right to attribution certainly had he been paid he was not so he was under no obligation to waive that right and he is fully entitled to assert he acted appropriately under an abundance of caution filing the claim under seal assuming some aspects of it would still be confidential below arguing first amendment rights the court ultimately agreed with that but he is intitled to claim authorship if the parties then want to work something he can it's a little late sensually to say he's not the author but he waived all of those rights in the original contract which was then terminated so you say and that is  issue i sense in the air a tendency to look at towards a twelve b six issue so all preliminary address that and then all move on to twelve b one i believe that the district court correctly dismissed the case under twelve b six because there was no credible claim pled in the complaint and there are a number reasons of that first as a predicate matter the complaint itself allege the distance of an agreement between contain integration clauses such as the one which the record clearly shows existed here and i will also point out that this was converted to a rule fifty six motion so the court properly had before at the integration clause and looking at that integration cla the court correctly decided that the entire theory of an oral agreement was absolutely precluded by the parties agreement if it was possible to get around an integration caused by simply saying well the oral agreement started with the oral modifications started off a twelve b one issue of the twelve we want to issue that result from the twelve the six issue is that the the the complaint admits on its face that there is a trip wire of state law issues that need to be adjudicated before you can even reach the threshold issue of whether there is a copyright claim involved and as the court as we believe it's correct was correctly noted the existence of the integration clause automatically precluded any claim of the of the of a copyright claim because the parole evidence rule is a rule of evidence it's not an affirmative defense therefore the existence of the parole evidence rule extension would require the judge to start off with the state law issue and start with any analysis in this case would force need to stop with the state law analysis and there is no authority to say that subject matter jurisdiction can be asserted on a federal question which starts of what the point of the potter is is a state law issue and i think that was the precise holding of the tb harmes case which says just because you have a federal agent a creature of federal law that is the subject of a straight law dispute that does not create federal because of the intent issue there's a heightened requirement of intent which was a knowledge in appellant's brief and that is simply not present in this case because even assuming we're going to take if even if we're going to put aside the issue that this actually became a twelve rule eight fifty six motion putting that aside and even looking at this as a as a tort rule twelve issue is still a ledge on the face of the complaint that there is some kind of agreement which was a ghostwriting agreement a ghostwriting agreement meaning that there's going to be complete secession of ownership at the time of payment therefore miss ten terrorist could correctly  whether that would be a correct conclusion it's impossible to say that on this record there was an intent to communicate false content because there was even looking at all facts on a route from the rule twelve standpoint in favor of the appellant it would still be nothing showing that there was a foal's intent moving forward there's another issue which is and it's also reaffirmed in childress versus taylor a joint work is entirely own by the joint onerous and i believe based on supreme court case law it's analogize to a tendency in common on their ordinary property principles therefore under those ordinarily under established law a joint orthe there is out one hundred percent owner in any joint authorship except that there is a duty of accounting to the other owners under these facts the appellants have not shown any authority that allows  based on a jointly owned work so i think this court would be correct in affirming the district court's order on a twelve b six grounds based on the fact that there was no credible the claim because there is no intent and even if there is intent on their existing case law both owners are one hundred percent owners and second and there's no authority to say that that could constitute a violation on the circumstances and secondly the entire grand theory you're just simply precluded by an issue of state law which is the pro level and you don't believe that this agreement could have been orally terminated it could be orally modified we know that but could it be orally terminated i think that is precluded absolutely on the record because it's a well established principle of contract law and that contracts aren't good are interpreted in light of the whole looking at the contract as a whole there is a provision which provided a bush provided a allowance for miss ten terrorists to terminate the agreement without any further consequence or penalty rate if at the i believe it was the completion of a single chapter and thought out provision in order to ensure that if mr coachman's work was not satisfactory the agreement could be terminated so the agreement of unilateral whole shows that there were specific provisions provided to allow an exit ramp as a parties discuss that without in a certain circumstances which those circumstances where in the event that the first chapter was six satisfactory there is nothing and allergists in terms of terminating the agreement after that step and therefore that clearly shows there was no intent to allow a term nation within which would operate in a bring the issue before us i don't believe so because if that was enough to make bring the issue before the court then as i mentioned before there be absolutely no utility to an end to a no written modification cla accompanied by an integration agreement in modern comest its principle its a principle operating procedure of how contracts operate and even assuming the correctness of mr of the of copyright infringement claim in that case you say well there is a copyright and therefore i'm going to assert personal jurisdiction then dismiss your claim on twenty six this is very very different over here there is no copyright whether registered or unregistered the question is if mister mr mouse comes into this court and says if i do succeed on the declare the clara torrie judgment cause of action then then in that event i might have some kind of ownership insurance which can right he did that in the original agreement that was terminated so if we assume no you say yes and that is for a jury to decide so on the question of subject matter jurisdiction here we have a c sections twelve o two and twelve o three do not have a copyright registration requirement unlike a claim for infringement in fact for example sections five zero one five zero four specifically refer to registration of copyright under four eleven section twelve zero two in total of three make no such mention because other people in fact have standing section twelve zero three speaks of any person having the right to bring a claim it doesn't require a cable companies bring twelve one claims under section twelve zero three without owning the copyright appellee mentioned that this is a not credible questions of credibility are for the jury he's claims that they're sophisticated parties submit that they're not this was her first book she came to an agreement in january of two thousand and fourteen to write it with the publisher six months later and that was to be done by october twenty fourth teen or site june or july fourteenth six months later when she failed to deliver they got an extension and then six months after that that's when she approached my client to help her write the book and when that helping failed under their collaboration agreement in may twenty fifteen then on july twenty first twenty fifteen a new paradigm was done but you know what paradigm is the ghostwriting agreement but isn't it the definition of ghostwriting that the client's name is going to be on the book and not the ghostwriter and if that's the case it how could it plausibly be alleged that she intentionally was interfering with someone else's copyright when she called the book hers because although that may have been what the parties were contemplating certainly when he would ghost write the book at publication when that came down to it in march twenty sixth in the naples when he sixteen she knew she hadn't paid him she knew she hadn't acquired the rights she knew he was the author and hadn't waived his more rights at that point in fact she was then pushing for a brand new non disclosure agreement if that brand new non disclosure agreement were required that evidence is her belief that the earlier confidentiality clause was ineffective why because it had been terminated by the parties and certainly a jury can come to a different conclusion it could weigh the evidence differently but here the court dismissed presumably under twelve b one which it should not have done since this court has previously held and say well that even registration itself is not a jurisdictional requirement under twelve b six it would have been just wrong as a matter of law since section twelve zero three and twelve o two do not require it so we're here on that and then we can look at yes there were on the declaratory judgment count yes there were errors as to failure to consider supplemental jurisdiction or discovery for diversity and we can get into that as they did with respect to determining cart or judgment but i would suggest that the harms still under that were saying was there an assignment that's not a question of contract law that's under federal law was there an assignment thanks very much mr orme thank you your honor gave you some extra time as well as