sense is actually quite simple but it's quite profound in terms of its significance it reads quote in the case of any original story written by the producer or any of its employees and used as the basis of either picture however the distributor shall acquire the motion picture and television rights in such a story for such picture only that's an affirmative grant of rights and we've been waiting patiently for the athletes to tell us what they think it means what they didn't do is they didn't define it and you cannot in summary judgment simply make up a meaning because it appears more persuasive i agree that one could listen to their position and come to that conclusion but you could also read the se differently that's my summary judgment was the wrong place to make that determination tell us specifically why was your summary judgment incorrect in your view well this on this record surfaces think please you can do it i will actually there are to have a meaning it cannot be discarded we don't know what it means summary judgment was wrong that's the first and the second was the one nine hundred forty four agreement archaeal gave up its rights i have yet to hear the employees explain why when they give up their rights while the only right they have for citizen kane which is right to exploit the picture was not the right they were giving up they never discussed it the court below never discussed it and then of course you have the common law issue which is what happens when you happens if you exercise a termination provision that's not what we're discussing here we're discussing whether the same parties and rich are two different contracts at two different times on the same subject matter such as the two cannot stand together and as a matter of years which is life copyright hollywood was only involved for two years for the production of the picture so if you have two new york residents a contract that is governed for all purposes by new york law the fact that the one nine hundred forty four agreement doesn't have a choice  california cases which probably common law if you look back and here's why i think that this is the one that was unpalatable to the court below it we're in the twenty first century and the result just seemed just a little draconian but that a registration of a photo play covers all the elements in it so the music the individual still pictures the story that's told the this is the script the to some extent to the costuming those are all probably workable elements and they all are part of the bundle of copyrights which are protected by the photoplay that's the thing in this case we're looking at a screenplay and  motion picture is to think into for the purposes of the bundle of copyrights that would be true and i'll give you an example if somebody created another motion picture not using any of the or any of the sound but capturing new people same lines of the original picture that would violate the copyright in the motion picture in the photo play because the script is a copyright element that script according to the act of the frenchman because the music is a copyrightable element that's included except here we have contracts that told us who won what and of course we also have to put the blame from last registered owner we know who the author is it's mercury because both copyright registration argument is the notion that for the last forty years orson welles didn't realize that the copyright in his greatest work certainly it was called to his attention as that the case can be decided based on the operative agreements first we begin with the producer agreement beginning at page forty of the excerpts of record which says that the distributor or arcade show on the negative and positive trends of each of the pictures and all rights of every kind in nature in and to each picture and all parts thereof and all material tangible and intangible used there in as soon as such rights come into existence including but not limited to the exclusive rights of distribution exploitation manufacture record and broadcasting  televising other than in connection with advertising or exploitation of a commercial product or service and reproduction by any art or method and the literary dramatic musical and other works included in such a picture rescinded a right related to the ownership of the copyright misses the mark the copyright was at all times property of r k o and further was not subject reversion to an author if there has been an assignment but this was not an assignment it was a work for hire under the nineteen only nine act further the portion that we've looked at so far specifically conveyed the distribution right to r k o and also the right of reproduction by any clear i don't think there is any term disambiguation that requires expert explanation the contracts can be interpreted and indeed work correctly interpreted by the district court secondly you look at the  to tell you this is now the time to do it it appears though from looking that there may have been something that the parties didn't dissipate and that is home video that came along work into that great oh well that's that's easy the home video is simply the motion picture in a different form it is the motion picture everything in the motion picture is embodied in the home video the home video commonplace that there may be new technologies developed down the road and parties anticipate them in contracts even though they do not know what those specific new technologies may be b motion picture and that is the language that is the catch all phrase that covers home video and any other technology that maybe we don't even anticipate today are we looking at new york or california law on the contract i'm not sure that it makes a difference i think the result is the same either way the one hundred thirty nine agreement does contain a new york choice of law provision the real dispute about whose law applied applied was a dispute arising under the one hundred forty four agreement which did not contain any choice of law provision  however i would note that the contract was performed in california the complaint alleges that the royalties should have his cheated to the state of california there was substantial involvement of counsel or now including of course that the complaint was filed by judge duffy made a point when my colleague mr brown was arguing that one had to look at the two sentences following sentence at the top of page forty three of the thirty nine produces agreements mr brown never got to that sentence that s producer that is mercury shall own the publication radio dramatic and other rights in any such story but shall not use the same in any way to compete with or injure the distribution of the picture based on such story i think it's quite clear from that franklin's that what the parties were saying was that sure wells could have the screenplay right but he wasn't to do anything that would interfere with the right of our kayo to distribute the picture and i note again this is in contradistinction to become one case where i don't think so your honor i think that what's going on here is this is a permissive land well it's a sign i recognize that you have the right to do anything you want with the with the motion picture and to that then i will specifically acknowledge that you've got the motion picture and television rights and because we don't know yet what future technology may bring i will include a catch all pro saying i won't do anything to compete with or injure your distribution of the motion picture so that i think that catchall phrase dovetails very nicely with a very broad grant that you saw at  page forty of the excerpts of record ambiguity around or further i don't see any dispute in the evidence the facts are what they are this is an agreement that was entered into sixty eight years ago i think the district court was quite right  introduce expert testimony as to what motion picture met at the time i think the court denied it didn't he didn't introduce it didn't consider it so the court did not address it in its opinion granting summary judgment but i don't think it makes any difference i don't think there's any issue concerning what those terms meant or how they were understood at the time because the district court said look this is an enabling provision it's a permissive grant it's to allow our k o to exploit the movie and we immediately after that have that catchall we will do nothing to interfere with or injure the rights of distribution as but i understand and at the council you have to argue as you're doing it i'm not them i don't think so at the time parties understood black and white small screen poor quality now we understand klute color cable satellite flat doubt that there was expert testimony in what motion picture men at the time that's the term that was used in the contract at the time and as i understand mr brown's argument he's saying that is significant the court didn't consider it as you that made it and i don't mean you've given up anything i don't know how you could deny it it's pretty clear the court didn't there was an expert there was expert testimony the court didn't consider it now o want to win and that's not going to win it  to compete with war enjoy the distribution of the pictures so what the parties were saying and what the district judge concluded is that there's a specific grant of motion picture and television rights because in one nine hundred thirty nine people could say what motion picture and television rights work but then there's this catch all provision this saving provision saying we're not going to compete with your right of distribution person who was going to distribute it in a movie theater which is what was in dissipated would have both in order to do so now we're looking this is the does that when you give when you sell copies to the public that's a distribution you know those are separate concepts and what this is allowing is distributing of the picture there was nothing here that was intended to i think you would you run it again we have to go back and we look at the language on page forty one that allows reproduction by any art or math and clearly the the method in which the material is distributed ordinarily one distributes copies copies can be in various forms could you briefly address an issue not covered on three sure the judge faris who's asking counsel on a prior matter this morning about the record before the district court here what was before the district court was of course the second amended complaint which doesn't make any allegation about a hypothetical not post nine hundred forty four agreement the complaint simply sought declaratory relief that the rights exactly ration of rights under the forty four green and again the facts are what they are there is no new evidence that would come in a trial i don't think anybody facts giving rise to this dispute in one nine hundred forty four as home video come in home video is not among the motion picture and television rights that were granted in one nine hundred thirty nine that was my initial point and this was not a workmate for hikers because a corporation can't be an employee under considered if you if the court had considered the expert testimony the court would have realized that the specific grant that tells you what happens is the most important your is based upon original story you would realize that they had no right to distribute that motion picture i'm wholly devices sold to the public that's that's what was wrong that's with a thirty nine time track he still hasn't told some of the forty four contract when they gave up their rights on the thirty nine contract why that motion picture wasn't a right they give up by the expressed terms of the contract  general grant does not apply if the motion picture is based on original story it's not so tells you what it's about it says however and quite directly tells you what rights are granted and any of that we don't know specifically what it means in which case it was