second that while it was in required by the federal rules only to consider admissible evidence it considered evidence that was not fairly supported by adequate foundation for a meaningful and adequately supported in order to establish custom and practice counsel on oh sorry go ahead with the third then i'll ask you certainly on and third while required by the federal rules and by presidents from this court in the supreme court to consider all facts and to construe the most favorably for the plaintiff in consideration of this motion it did not do so with those three fundamental errors in  by themselves would be sufficient to require reversal together they have failed to cancel what i was looking for to see whether there were proper copyright notices whether publication was limited what constraints were put on it was that those old magazines or movie still figured probably somebody would have hung around and used bookstores picture to marilyn monroe are still marketable yes and xerox copy of microfilm and i couldn't see the part of the magazine that says the pictures on pages thirty two thirty nine and forty seven are copyrighted by so and so the rest of the pictures  the court not to consider those those documents that were being offered me with bad photocopies of bad microfilm excerpts of newspapers and magazines vouched in by counsel seems like your side could have done it as well as their side well we don't know of any you're the side that's claiming the copyright are if we're claiming copyright ownership so it seems like you could put it in and say see see that's very fair copyrighted we couldn't find any on it we haven't got any  defendants who were claiming that these were generally published it was their burden to establish that they were published without your claiming they were copyrighted they're claiming they were published and there's nothing we can really look at to make this easy they're copyrighted by virtue of creation and by the but i know that he also had a right copyright with the cd and the circle and the date and who is copyrighted by unless it is a limited publication which yet is not required to do so our position has been since the outset that these were limited publications provided to a selectively defined group of persons for a limited purpose and not for further distribution and i don't understand there are two categories of things one is things that were published in magazines that were of general circulation and the other is published but he still says and i'm not sure i understand but i think those were given out as widely as possible in order to promote the movies so i don't really see how that's when their publication if i've got the facts right well we go back as we always must to what was the evidence of any distribution of publicity  fact there was no this is what we acknowledge we acknowledge that milton green took these pictures he was the author with knowledge that he provided these photographs to the studios for purposes of promoting the movies those i have knowledge facts we don't dispute those facts they are records beyond that what specific uses were made by the studios the extent to which they were distributed or handed out to anybody is not established by any admissible evidence  the declaration of mr whitener we have the declaration of mr white snow who works for a very short period for columbia pictures long after the relevant time period is an academic some time academic with some universities with respect to film who  did no investigation with respect to the two studios that were involved regarding what their practices were and whose testimony simply could not support what his conclusions were kept so i shared your skepticism about whites nor frankly because you never worked for any anybody who will take them you've given to them you go to concerts they hand you promotional photos of the people that are singing and you walk down broadway people hand you cards promoting this and that the whole idea of promotion is to  spread the word and get people to discover something that they otherwise would not have spent money on in principle i agree entirely with which honesty but the fact that there was a promotional use does not make it less of a limited publication there are cases that are all record i don't really get there can be promotion that's limited publication for example if you're trying to sell the photos and send them to modern photography popular photography in american photographer you haven't given up your copyright have by trying to promote your own photographic business have by selling those photos but this isn't like that this this isn't green trying to promotional use it was clearly to exporting widespread recognition they stated martin luther king another case the famous speech i have a dream widely distributed yet found to be a public a limited publication and not a general publication the mere fact that they appear in newspapers or magazines by themselves do not establish that these are not a limited publication the case is a legion the marker written keep thinking it's a recovery case that mr maest documentary skates work all found that providing the work to the news media for advertising and for promotion is not does not take it out of the scope limited publication the question that ultimately this case turns out is what did milton greene do that would have injected this into the public domain as a general publication and the evidence of record establishes only one thing that he did he gave the photographs the studios for a limited purpose that even the district court acknowledged if the limited purpose was to only and only to promote those pictures those movies nothing more and there is no evidence of record that there was any use by anybody outside that scope the record also includes some photographs that were sent by the agencies used by the studio to newspapers and magazines with restrictive legends on the back they clearly ascribe some place where we can look at the restricted legend have a back to us going to the court actually cites to it in the order itself at page fourteen of the the order and motion for summary judgment it's in volume eight page twenty five seventy and the legend there is that license for display only in connection with the  custom in practice was and then concluded that because there is such a custom and practice these pictures were widely handed out and distributed there is no evidence of record of such a distribution what is a record of very poor copies of newspapers and magazines that do not adequately show the images to even allow us to be sure that the same image was used as opposed to the second frame over your honest understand that photography  knowledge of his father's routine practice yes he worked for his father for many years he swore to that it's in our reply brief the specific quote from his deposition testimony it was before the district court yet what the district court said is his testimony is conclusion without foundation and it's an expressed statement that says i worked in my father's studio for many years i have given recollection that these pictures and pictures of this type all had copyright notices on the back is not not lacking in foundation it is evidence that should have been admitted and at least would have created a disputed issue of fact the ultimate question the honor is whether or not the three prongs in the publication were stablished by the defendant will not matter what the defendants in the court acknowledged and it is clearly the pictures were provided for a limited purpose it then said but there was no showing of any restriction against for the use of distribution that's inconsistent with its finding very it was for a limited purpose it is also inconsistent with the very language of quote showing that there were restrictions against further distribution of use it also said that there was no showing that it was to a definite definitely specifically definite group of persons a limited group persons and yet the only evidence of record is that mr greene gave it to the studios and to nobody else no contrary evidence to that there is no discussion going to district court or explanation of how the court concludes that it was provided to somebody outside that limited group the court really concluded that it was not with specifically defined group of persons attorney your honor that is a document we did not have our client never have then this possession it was produced by the defendants from sources they have yet not identified that's true we do not know what other documents in that transaction exist it is our understanding that when there was when the agreement between marilyn monroe and up looking green was first entered creation of well monroe production can thing else you know now i wholeheartedly agree on that and that is part of the problem we don't know great deal about that document of the circumstances of that document we have no basis for foundation that it is genuine that it is complete that it represents the discovery in the original case no with a request for production that would have included a very extensive request for production with respect to all documents associated with the relationships between the parties we produce they had a request for you made a request for production of the other side for whatever documents they had regarding the relationship of the parties i think we asked them with respect to all documents they had in support of all their positions with respect to all of their defenses and it would have been in compas within that and three meetings that in response to that we got responses we got some production we did listen to my question did they produce that document in response to the request for production i know they'd raise it and they made a similar request of you i think it correct and we produce all documents we if and i will engage in a moment of speculation of your own to allow if in fact there was disagreement separation agreement that required and provided that the that marilyn monroe productions was to own and retain the copyright in this presumably they would have asked for an up to the original negatives he has negatives still to this date he recorded and registered his copyrights in the copyright office the state which is the president which is the successor in interest never objected to the copyright has never challenged that ownership is never cancelled those rights it is now challenging it in other litigation today but it did not for fifty years that's what the state of  good morning may please the court andrew j thomas on behalf of the defendant appellee b and you business media inc which is now known as nielsen business media will continue to refer to it as being us we have a brief for the sake of simplicity i would propose to first address the appeal from judge taylor summary judgment order and then to discuss the appeal from judge butler's attorneys fees order unless they have a question of bothers me i don't understand a couple things about the case one thing i don't understand is why we don't have the photographs that were handed out these problems to the stove front and back originals that you can get they have mountains of publisher the stills of marilyn monroe pictures that use book and magazine stores and i also don't understand why we don't have the magazines from used book and magazine stores we don't seem to have anything we can really look at here well your honor we do have a lot of material in which these photographs are published although there's a great deal of m marilyn monroe memorabilia don't you have when i look at what i was looking for when i when i read a magazine i often notice that a page through or three or four the magazine there's some fine print about who owns which copyrights and it's so where they have photographed these things are frequently sorted out also out when you look at magazines and journals of all sorts there is often a footnote that says whether the journal owns the copyright or the author does and i didn't have anything where we could just look at it everything that seems to be speculation your honor on some of the the  have seven photographs at issue and we did an extensive investigation to try to look at the seven photographs and any one hanging around and used book or magazine list or a lot of used bookstores we looked through public libraries in new york or los angeles we looked on e bay for collectors we did all kinds of research on it with respect to the magazines we found the number of magazines in which the photographs were reproduced we made all of those magazines available to the plane of the magazines don't have copyright notices in built in greens name we also found  pictures of the pictures and the reaction same for one thing they're black and white and for another thing they don't have the intermediate tonalities but many of the pictures originally were in black and white on their properties and he black and white photographs have intermediate tonality says don't the same but was which with respect to the copyright notations if there had been a copyright notice elsewhere in the newspaper or magazine in the name of the publisher then as they speculate that would not have preserved  copyright for milton greene the author of the photographs because the collective the notice of the publisher in a collective work doesn't provide copyright protection to that the author of the individual work that's from the new york times versus the seanie and from cases from the serve the circuit including self realization fellowship and others the if there had been a copyright notice in the name of milton green in elsewhere in any of these publications that would not help their claim here either in fact the reason that i believe they didn't look for this and present to the court is if those copyright notices had existed in those magazines in the name of milton green then that would torpedo their case because that would be an investing publication that would that would have provided a statutory copyright to milton green at that time it would have lasted for twenty eight years and would have expired in the mid one nine hundred eighty s the the evidence in the record is that there were no renewals of copyright in the midnight in the one nine hundred eighty s by milton greene in fact milton greene never registered any copyright to his photographs at any time during the loyalty to your case is it really doesn't matter with what they said if they said copyright it would be expired and if they didn't say copyright it or be public domain to be a general publication at the time i get a fifty other why don't you come on on a public general publication defending your right to publish pictures where you could have bought the rights for a hundred seventy five thousand maximum your honor we would like to know that too we this is a case where the initial damages were never high i mean the license value these photographs was low there was no profits that were made by the publisher we lost money and we tried to get out of it was early publisher didn't mean to lose money meant to make money on the books because the speculation that the money that matters is it would have been so cheap and easy to buy the right to publish the photos from the milton green archives that i am wondering about the reasonableness of the attorney's fees even if the hours primes the rates are reasonable at the supreme court has advised this we should also look at the reasonableness relative to what's accomplished what's accomplished here is to avoid paying a vastly smaller sum for amicable agreement and permission to publish the photos but i think there's a couple of responses to that just like the first at the time that the book was being published the the  the book publisher and the charge the author was with locating photographs to be used in the book the author went to photo fest which is a photo archive in new york that's well known and widely used and asked for photographs that came without  archive that deals in a in a vast amount of public domain material the photos that were published in the magazine were published in our my client's books that were obtained from photo did not have any notation on them that they were taken by milton green  well i think it's a different situation if you're if you're showing a saturday night live it was that everybody knows that if you see copyrighted content here we have photographed publicity photographs of the one nine hundred fifty s that nobody knew who took them there was no indication there was no photo credit there was no copyright notice  marilyn monroe for well that's the testimony of the case from from the author and from the publishing personnel at watson guptill the book publishing division was that they did not know that they did not recognize the photos as being taken by green these are by the way by milton green so he was intimately involved in all aspects of the production of these movies and he was the photographer as well but he was a photographer on other movies that marilyn monroe made i have a more fundamental question for you that the attorney thing it doesn't appear to me that either judge startling or judge taylor ever really exercise their discretion under applying the forward factors in deciding that that attorney fees were appropriate here indicates that she is walking through every one of the factors in that discussion please talk on page eight forty six she talks about the requirements under the supreme court in one circuit precedent with respect to objective and reasonableness indicating that she was cognizant of that phony factor in the supreme court's requirement that you consider that she continues through the following five pages to discuss the other forty factors i think the the  it's clear regardless of how the precise wording that you used in looking at the order it's clear that she has considered all of the for the factors and has discussed them in the order the standard of review that applies in the manner that your honour's might have written or that plaintiffs counsel might have preferred that she write it but whether she abused her discretion in deciding in a cage in a situation where she clearly considered the forwarding factors  nevertheless it's it's not an abuse of discretion and in that case where the the court obviously consider the factors reduced the defendant's fee request paid careful attention to the the it and i i frankly had trouble understanding the punitive element in light of oscar's case and the martin luther king case it looked to me as though those cases make this public domain i arguable your honor i think that the public domain issue is clear what what what i think one source of confusion is that in the plaintiff's argument because it was say why it's clear and not arguable despite those group in our situation we have distribution nationwide as part of a national advertising and marketing campaign such that tangible i will be there to look after i was there the day of martin luther king's speech i was right there at the lincoln memorial and the whole idea of that was to make it as nationwide in the words of the performance everything had the maximum impact on the nation possible it was all televised there was a huge crowd there must have been three hundred thousand of us  you couldn't be more public with respect to both the words and the performance exactly the performance your honor and that's the key to the martin and the worry says the words in the performance but both both of the cases that have addressed the martin luther king's speech there's a southern district case called mr m now the interesting thing about the eleventh circuit the solution is a fractured one the one to sit one decision the three judges have three opinions but the interesting thing about that is there is a consistent line in the footnotes of all of the judge's opinions which indicate that the decision would have been much different  if it is established that tangible copies of the speech were actually distributed to members of the public and that in that case like many of the plaintiffs cases is a case about performance not distribution of tangible copies like we have in this case and in particular in the martin luther king case there's a footnote for that explains that if c b s could establish that copies of that speech were available in the press tent to members of the public to pick up that would argue in favor of a general publication and then there's also the fact in that footnote that the speech itself was actually republished the next month in the newsletter of the southern christian leadership conference without copyright notice and the court indicates that in that in that situation if that was with authorization of martin luther king that would have been a general publication because in that situation a tangible copy of the speech would have been in the possession of members of the public it would have been published without copyright notice the result would have been different but there was a factual dispute in that case about whether he had authorized that and so there was no summary judgment on that point that's the critical difference when it comes down to the third prong of the white versus kimmel test which is whether the distribution of the photographs that milton green authorized when he provided them to the tia's and the public has to further distribute to publicize and promote and advertised these films that he had produced whether there was any prohibition on their further distribution of those photographs and in this case the evidence is that there was not  point there's an important prince to be drawn from keeping the negatives and you can make more prints from negatives to act keeping the negative suggests he wanted to let people use the use of the picture but he would keep the right to ask further uses why isn't that a legitimate inference well i don't think there's evidence of a record that he that he kept the negatives but even if there was he just he provided these photographs to the studios and  publicists with the intention that they would reproduce them that they would create stills that would be distributed that they would put them in these press books if they would give them to the press and with that they would create a situation where they would end up with thousands of reproductions of these photographs being distributed to members of the public to anyone that had money to buy a newspaper or to buy one of these screen magazines that were popular at the time would end up with copies of these photographs that they would have a possessory interest in it which they could do with what they wanted whether they could sell it to someone or linda to someone or give it away the display of a copyrighted work where there was a prohibition on copying the american tobacco case was displaying a painting with a strict prohibition on copying here we have an authorized nationwide distribution of these publicity photos to advertise motion pictures with the intention being that they're going to be widely reproduced widely distributed so that they end up in the hands of actual members of the public when you look at these press books which were the document catalogs and promotional documents that were sent out to all of them the theatres they had the photographs printed in half tons of they could just be cut out and given to the newspaper to be reproduced in the paper that there were opportunities to order copies of these photographs in lots of a thousand tell i have i can tell that from the exhibits all those are in the exhibits for the for the press books and we've just for write them in the brief with citations to the particular pages of the press books that indicate that some of these photographs can be ordered honor and i'd like to i'm glad to give an opportunity to clear that up we did not have that document at the during the discovery phase of the case we did only receive it after the case was at the summary judgment motion of a completely free we received it from counsel for the estate of marilyn because it was a contract that his father entered into with marilyn monroe productions which was the company that he formed with marilyn monroe it's quite surprising to me that it that they didn't have a copy of it and they didn't produce it in discovery pricing to me that you didn't either well we're of general publication versus limited publication we have to be very concerned what can be considered at summary judgment level and what can be ultimately determined at trial on summary judgment will look at the evidence which was admissible and on the record and the evidence that was admissible and on the record does not establish that there was an unrestricted distribution all authorizations it does not show that he offered those photographs to anybody other than he specifically selected group of persons for a limited purpose the defendants did not carry their burden of establishing that there was a general publication and summary judgment should not have been granted to them the important gatekeeper functions of the district court with respect to the evidence were abandoned in this case and they should not happen and the strong warnings and directions and teachings of the supreme court and this court that the evidence must be construed most favorably for the nonmoving party was not complied with we asked for the reversal of this judgement thank you thank you counsel