of the game indeed individual responsible for reducing the game to quote concrete form and quote despite this unwavering evidence the lower court decision completely broke history finding instead that  court made below it is don't you have to establish well isn't it clear it was a work for hire by someone just a question of for whom it was it seems to court found that chambers in israel did most of the creative work and actually reduced ideas to expressions if that's the case then it doesn't matter whether it's markham or kramer who was the  and again you know it's sort of related to the late defense for sixty years you know the record was clear and there is no hint suggestion that anyone other than bill marcum created this game physically and as a whole  this late defense and then the story that came out at trial well let me ask you this if if if one believes the testimony of chambers in israel how do you then argue that they w the creators of your r o l answer it this way the testimony that came out at trial in no way rose to the level that these individuals created the physical prototype forward absolutely not i was denied quite frankly are our griefs make it clear not only do we believe it was abuse of discretion to not only have the defense allowed it in but also and our alternative discovery was not what was going on right chambers in israel listed as potential witnesses the defendants they actually were and the other point i want to make real quick is that these two witnesses were represented by this by the same year written record had been up to that point up to that point as i mentioned there was no mention of this chambers or mr israel period in the written record for sixty years their name out wasn't it but the district court so that was the foundation quite frankly it's what they think it opened the door for the judge to find on a theory that neither party had put forward and half of which was the late defense i e that someone other than mr m separate times so when you composed chambers in israel you had every incentive in the world to ask them what they did when did they do it which of them did it and what did markham to the they did and was a good child just like consistent the deposition testimony absolutely not it was it was built upon it it was much more recollection and quite frankly that's the harm that we were put in we were put in a position of you know trial by ambush of not having you if you impeach him with a deposition it was brand new testimony so yes we certainly attempted to do that and it was again a different story that had simply never been told at trial that contradicted something they said when you did post them that the st one that came to mind was that they created they were unaware of who that the rights including the copyrights would quote revert end quote to markham under certain circumstances and again because my time is so over and i mean over time i'll just be very quick this inquire non of the reservation rights is the intent suggests that there was an agreement that could undermine the presumption established by the instances expensed us but this document does not do that what this document talks about is it's a basically a belt and suspenders provision that states that to the extent to which mr markham may be entitled to a panel plea of intellectual property rights then certain obligations arise including that he would have to honor extent he has them there are the actions that he needs to follow and i would submit that the subsequent behavior is entirely consistent with the fact that he didn't have any copy right interest because if you look at what happened thereafter the only thing he was ever asked to do was to asked to apply for a pat he was never asked to apply for a copyright copyrights were applied for but never by him never with his rights attached to that at the same time mr claim or this is prior to even the assignment agreement being executed was acting as the copyright owner he talked to his lawyer to make sure that all copyright interests were being protected he talked  bradley to explain to them what was the best way to protect the copyright interest so yes there is that contemporaneous provision but that hardly savile's has any kind of clear expression of intent among the parties of copyright ownership that would override the presumption to the to the question that was asked earlier of the incentives that mr palermo had during discovery it is certainly accurate to say that they had every incentive in the do that in a copyright law one of them is your own legal author on a work for hire basis that's obviously out you can't prove it that way because that's an exception to three or four c so the only way he could prove it was to show that bill marcum physically created some aspect of the prototype which is the subject of the copyrights so he needed to prove that bill maher concrete physically created the prototype so he had every incentive to ask those witnesses who were on the ground who created  and it's entirely inaccurate to say that they said anything inconsistent at trial with their testimony their test their deposition testimony their testimony at trial really elaborated on their testimony at deposition the answer all questions truthfully and accurately to the extent we asked more at trial to fill in the gaps none of that was inconsistent as your honor judge thompson mentioned you know if that were the case they certainly had the opportunity to cross examine and peach with that deposition testimony they didn't because there was nothing to impeach clearly the factual record establishes that justice findings were not clearly erroneous to the extent that they said that we were seemed to be a novel on this was theory by them we cannot understand how they were trying to prove authorship because they were offering no evidence and when they started to ask these very specific questions about the employment relationship between mr chambers in the street israel on the one hand and mr markham on the other over time even though it was not disclosed it occurred to us that they must be trying to claim their work as his own and we merely responded to that by saying well if you're going to do that and you know as your honour's observe read it right at the outset well that's a work for hire too so that doesn't get you out of your your box so that's what we did and i would observe that mr claimer and  doesn't say he has authored that that's that's exactly right so this is been the fundamental disconnect that we've had with them from day one bill marcum and reuben claimer provided ideas we have never said from that we've never asserted at any point in this process that the market did not play a role in this process i will concede that he played a meaningful in this process that does not make him a copyright author fundamental ideas he's still not a copyright author except he became one by virtue of the work for hire to the extent the markham came up with the idea of the spinner as they claim and we haven't disputed because it doesn't matter that doesn't make him a copyright often and that's been the fundamental disconnect we've had with him from the beginning they say look at all these documents all these documents tell us that he was the person that invented in the zine didn't did all that but that still doesn't make him a copyright author now he could have been for a moment in time in the kind of legal fiction of a passing from mr izrael in the chambers to him to mr clymer right but that doesn't help them because real foresee except that scenario for mitch rules so that's so i'm glad you're on our list because that's the fundamental problem they've had with this case from the beginning they've never and that is why we also have an alternative basis that they never prove authorship because the only thing they've actually proved is that he played a role and perhaps an informal but they never put in any evidence to show that he physically created anything and even if they had judge smith on a very well supported record has concluded that he is not created he did not create anything so even before work for hire i guess in the theory that they have to meet their elements st they never actually p ship to begin with so there are three in our in our view there are three independent grounds upon which there was this appeal the district court came down it seems to me on the grounds that it was a claim for whom a work to hire was done the alternative ground is it was markham for whom a work to hire was done the common element being that it was a work to hire if we were to affirm do we need to specify does it make any difference whether we specify which theory it does not make any difference at all because that because their fundamental point has  angeles and they brought the whole board and they dramatically put down the last piece of track to show milton bradley the completed work that's not physical creation that everything was created by in terms of the board was created again patricia glaser to please the court i am mr claimers attorney and i can going to try to answer a couple of the questions that were have already been asked of other counsel it doesn't matter to completely on the same page on that however the copyright holder is rightfully mr claimer and that recent she's lost her voice i think you're and it's uncontested the evidence was determined by the court that all of the following people were telling the truth this your claim or this church that mr israel mr chambers the court found and that you have to have clear evidence to the contrary are clearly a mistake and it's there is not even remotely that opportunity here mr the game to this restaurant was referred to as an expensive restaurant that expensive restaurant and it was literally people just assembling what mr chambers had designed and wrist chambers had built so the notion that he literally put the truck on the board is of no consequence whatsoever it was built by mr mr chambers mr israel did the fox nobody contested that and this notion that they had different testimony at that deposition then they had a trial is completely wrong it's not even remotely the case and i know i could go through it percent i want to be so clear about that yes sir we are arguing and not just arguing we think the record fully supports the notion that claim or comes to markham that says to employees on this  and that they were paid completely in promise to be paid well before the five thousand dollars advance was made by the no bradley folks and nothing bradley now has run and no question about that and nobody suggested to the contrary well what if could you help us what difference does it make to you if we start out assuming that chambers in israel were the authors what difference does it signed to link what why do you care which road it takes under either theory you are partially correct your honor in our view either theory there is no terminations rights i want to be one hundred percent clear so in that sense it doesn't does not matter where it matters is who is the copyright holder and the copyright author of forgive me and the copyright author because it was uncontested at trial that claim the only thing that was conte they create this it's game and it was supervised he steer all the time i'm glad to answer any other he's he's there any any directs both of them on what you do what's acceptable what's not acceptable that's why we think the evidence is not been refuted at all in your honour's i'm glad to answer any of the questions i'm still having difficulty understanding why why claim  it matters only in the sense he does claim or is the copyright holder claim or behaved to see this if you were the copyright owner from the st instance before signing the so called assignment agreement he asked his lawyer to you but barry wait the game to determine it was copyrightable all of this is in the record all right the sent a letter to milton bradley offering suggestions about the game's copyright notice thirty years later issue i'm going to answer in two respects one you are correct it does nothing to do there are no terminations rights period having said that the reason the evidence was all before the judge and it was not refuted about incense and whose expense this was handled it was always mr claimer and the evidence that nobody has to go outside the record or make a reach and any any respect at all it is clear that mr claimer is the copyright author and it should be recognized as such and we don't think that's a stretch at all it's they are one hundred percent on the record thank you very much he had no firsthand knowledge about this chambers and mr israel's contributions to the game and only nd hand knowledge in other words he was told by bill markham what they were doing and so that's the story that changed from the trial testimony and it's quite frankly a seminal to the story the words untethered to many facts in this case the written record that is the ultimate problem here they came up and that you know the policy rationale cannot be understated about what's happened here they've literally taken a racer out so you're saying that claim or never claimed earlier that he supervised as creation of this game and eighty nine he was asked a question did leonard israel work on this game and his response was the markham told me that he did and that's exactly the problem we have and so it's literally this case comes down to the mound quite frankly surprisingly large mountain most contemporary evidence that we have versus answered a slightly different question than the one i asked i'm trying to figure out if the one thousand nine hundred and eighty nine there was any testimony because today he's saying that he he actually supervised and managed the creation of this is there anything from eighty nine dollars in which that so indicated absolutely not and that was a critical piece that was a truck and so you bring up an interesting point your honor that i want to just address very briefly rights of bill markham that speaks volumes about what he believed at the time not sixty years later you know based on what they can muster up as raechel lection i do want to be very clear that the average age of three witnesses all represented by the same counsel on the other side was ninety eight years that was the average age and so we just case boils down to is you have an answer and at the time mr kramer didn't think it was important enough at all to seek  assignment rights from what he believed to independent contractors chambers in israel and that's exactly because it didn't have any rights to give and so i'll cite oh give you the site so that case if that's spells out that point