review in the merits appeal an issue of statutory construction and i characterize it our way because it's really not an issue local to copyright law the issue is opposite of independent contractor and that from our perspective disposes of the case let me ask you a question ryan we need a consistent approach to identifying what is someone a principle that is across the board every single federal official federal budget legislation and the rationale that the supreme court stated for that broad rule of statutory construction i believe was set forth in the dark in case you know our b v darkon which is not a copyright case the court criticised the previous method for construing these terms employee and employer and employer as being result  wanted to include independent contractors in a statute could have done so but where congress uses this word everybody in the country irrespective of what the statute is will know what the word means does indeed denote an independent contractor however they can test whether the cognizant hyphenate word employer is subject to the same principle of construction and they have to get us for it says specifically when the words employer employing me or for that matter scope of employment appear on defined in a federal statute they all are to be analyzed under the common law of agency meaning the read opinion that it's called a historical statement the historical st nick was by the supreme court was said generally under the one thousand nine or the cases construe the word employer as i am now formulated indeed plagiarised some of our briefing below so our argument was never presented in the hogarth case never considered by the second  historical statement one can only surmise but i guess i would say hopefully when and if the second circuit is presented with the real argument that the word employer means employer that will be viewed both  binding precedent from the supreme court and sufficiently strong to overcome the prior circuit precedent i guess i'll make another comment in response to your honor's question unlike the second circuit this circuit i think it first opinion of this court in cleary on which i believe judge nelson was the on the panel stated very clearly what what i'm calling my view that employer means employer and the relationship between an independent contractor and a commissioning party was one of an implied assignment resident of vesting authorship in the commission party i have an issue we can talk about this circus six or seven cases in detail and it is difficult to harmonize with them but i do think it's fair to say that i'm like the second circuit which was brought into this you who work for hire doctrine applies to commissioning parties  the circuit does not have a strong president and i would argue that the center of gravity of the circuits president is the opposite indeed it another piece of evidence garman it was one hundred seventy six our case but the circuit seemed to go out of its way to signal that if we had to decide maybe all over again we're not sure we would have come out that way so long on both grounds t construction were appropriate look at the word employer employer and you decide what is the mistress to be addressed how should we construe it well based on this court statement of policy and what it did was it said we see no reason to distinguish between commissioning parties and employers period and therefore we're going to from now on considering both governed by the work for hi so you know i guess the statutory language was not a reason to distinguish between the two but in today's world of construing statutes carefully that is a very good reason for distinguishing the word employer you i think unless the panel has further questions at this time i'm going to reserve my time with the courts indulgence mind are generally factual issues that are resolved after trial and fact finding that on some of judgment in accordance with some of the discussion that we've already heard this morning in other cases this court remanded for trial and fact finding on that issue the live testimony of his own long term editor the district or specifically described as a very reliable witness with a trial yet record uniformly showing what the district were found on the basis of that record is that in fact the answer to the question this court find this court on appeal provided the evidence supports those findings i think harvest was about that because if the copyright to a work for hire in the commission inquiry as soon as it is created patron or proprietor as opposed to the creator in circumstances like this when work for hire is an issue the question is this court recognizing its prior appeal and has repeatedly recognized it's simply a question of the mutual intent of the parties what did the parties  intend what did they want what were they looking for what do they expect to get out of it that's the question at the heart of the work for hire inquiry under the ninety nine act and the score put in the liberal case the question is the mutual ten of the parties that the title to the copyright shall be in the person who commissioned the work is that what they want and neighbor says morgan how the question is did the parties expect the play employer to own the copyright it's not a question of when did it convey simply question of what did they want when the work was completed and published and determine that intent this court has always applied the instance and expense test and that's half of the course where where the commissioning party encouraged was living influence for the work and paid for the work but the consistent line of cases the unbroken line of cases not just the circuit but everywhere and not one circuit not one anywhere ever has accepted the stars you  here despite that fact the creator of the parties agree that the creator would in fact reserve for himself the initial copyrighted work if you can show that the part of contesting that the copyright can prove that is a matter of fact then the presumption  own the copyright in the book i mean they paid made enormous human and financial investments and resources to get this work written on the expedited schedule that both parties agreed need to be written on the paper around the clock secretaries they flew double days top editor across the country to work with them on this they pay for fact checkers to check facts and do research provide additional documentation the pay phone bills copying something or other expenses that come up in trying to get a work like this get at what it is the parties wanted to accomplish through whatever legal transactions they structure in order to get a book like this written the agreement was according to the just of course fine it's not contested now on appeal that i don't know it was a contract in december one hundred forty seven that eisenhower would write a book for doubleday and that agreement would be that eisenhower that doubleday would pay for the book the uncontested testimony is that double the suggest that in those particular circumstances the one can govern or can be significantly influential of the other that can be true to its our point it's our point not the tax laws you're relevant doesn't mean anything at all it can mean something and if there is sufficient evidence to show that the tax treatment eisenhower received completely changed the practical realities of the under budget evidence frankly that on or about evidence that he wanted to write this book for doubleday and agreed to write this book for doubleday as a work for hire because of the fact that he wrote it only because doubleday encourage him to do so and because because doubleday paid for the creation of the book the presumption that arises there is that he wanted that book the initial copyright to vest the initial federal copyright to the best in doubleday and didn't want to own it from self that's the test this court has repeatedly applied and there's no basis for a suit concluding that the district court erred as a matter of fact in deciding that the tax treatment while relevant didn't change the practical reality is that this is exactly the kind of contract the kind of relationship and exactly the kind of book that the nobody else in the family denied it nobody else with any relationship with this transaction whatsoever ever suggested that it was eisenhower who owned initial copyright and not well that could also be explained by the fact that  i'm sure that the general last president was well advised by legal counsel that had he taken that position it would have jeopardized his tax position because either he sold capital asset and got favorable long term capital here now the tax laws have changed partly responses transaction we don't know exactly what the the i r s the treasury department you know how they would have treated this had there been an audit we don't know what the answer is and the reason there was this it was at the time with regard to why he structured the tra question which is a quite different one as to who encouraged that and who facilitated the writing of the work by paying for it and thereby who who which party to the parties intend to own that initial copyright that's the work know i hereby assign rights but that doesn't undermine or change the fact that under copyright law however the structure of what we're asking is who encouraged it and who paid for it and what the presumption that ar the tax treatment or want to believe the tax rate is controlling here daystar still doesn't work itself because to get the tax treatment eisenhower wanted to get him something wrong with that remember he just kind of minimized tax obligations and gets advice about how to do that that's what people do all the time and a case they say i described as a loophole treatment wouldn't work now i'm not saying that that proves that our side is right in this in our view of the tax it doesn't really prove much of anything except that and this is the dispositive point the copyright law and tax law are different you can't always look to the one to say whatever result that at all that's a relevant factor but it's but as you said in the three boys case another copyright case and this court talked about it like this morning it's relevant as a question going to state of mind what the intent of the parties was this the district court considered that ar paid for the work made enormous investments counting on counting on owning the initial initial copyright and was a party responsible for creating it and given those facts and the facts that this book was treated differently from other books that we know and i want to primarily address judge wilson's question regarding the effect of the assignment but before you that i think it will be more efficient for me to first responder judge harrison's comment about nontaxable costs and then amendment it was quite a controversy eisenhower made a lot of money and it was viewed with alarm by many citizens and congress took rather immediate action so capital gains was not treatment was not available subsequently want to answer another answer which i know is in at least one biography of eisenhower i don't know if it's in the papers is that mathematically it turned out to be a disaster for eisenhower to do a capital gains deal on campaign crusade in europe because even those in the ordinary income level was confiscatory he would have made a lot more if you had done real royalties because the book was an amazing bestseller for decades  as for judge nelson's questions regarding the effect of the assignment an assignment is the direct opposite of a work for hire arrangement and assignment means that there's an initial copyright owner and a subsequent copyright owner so it is evidence that the robots work for hire speratus it is true that extrinsic evidence is admissible because there are assignment contract the handshake and december forty seven was that eisenhower's rights will be granted six months after he completes the manuscript why did the court error the court mixed up conflated the contract formation date which factually she found in favor of plank us on and we're not contesting that with the assignment date there was no disputed evidence that there was then a different assignment on either it seems to be there was no extrinsic evidence of that sort of the expense of governance in this case was eisenhower did a deal with the i r s that could not exist if this were a work for hire the asset could not be a capital asset held by him if for work or hire he could not have held it for six months before work for hire and he could not have assigned all three elements of capital gains treatment are impossible if you were another one sure sure but there are fewer the commissioning party don't you want to make it crystal clear not only to the independent contractor but also to the world at large that to the extent that there's any question as to whether it was ivan howard doubleday who had the copyright when you put language into the agreement they made it clear that it was doubleday yes and douglas black the editor of double pay was a lawyer and deduct but the language he chose was not this shall be a work for  manuscript delivered it right on the explanation for that right eisenhower didn't want any suggestion as far as r s s concerned that there was a handshake deal and december one hundred forty seven so he wouldn't want language like that in there because presumably the i r s may have received a copy of that contract if he ever bought it the tax treatment well i'm not sure actually from a tax love perspective whether the i r s cares whether there was a handshake deal earlier but it does care that there be no transfer of the literary work the copyright until six months after completion of the work so i'm not i don't really question eisenhower's motives i think he was trying to comply with his understanding of what the i r s requirements just i don't know if i completely answered your on his previous question just seems to me that it would be prudent if one is in publishing business to make sure that there is evidence that is clear and unimpeachable that you are the current and lawful owner of this copyright from now on for every right and there are two types of i or somebody to do some work for you you want to foreclose any future claim by either that party or errors of that party down the road later come back and play with him and you know that this is our top right and we're titles a there are two ways to do that as a prudent publisher and an assignment is one work for hire agreement as the other and both were frequently used but i guess my question is why would you include that language in both the green for in assignment is the opposite of a work for hire agreement off times you'll see if you and i are talking past one or excuse me i think the real practical question i'm trying to figure out if i'm in the publishing business regardless of how i characterize my relationship with the other party whether we call him an independent contractor or the author or whatever you want to call don't i want to make sure that the contract contains provisions that make it clear that the copyright is mine yes ok that's we doubleday are the owner and author if a court some day finds that it's not really a work for hire then you hear by assigned to us your rights and that would have been evidence that doubleday and eisenhower intended it at least initially to