thank you your honor again phil talmage and you're representing michael moore artist fields who had a dirty little secret to be kept at all costs and he told the world at large that he was the sole creator of the paintings that he signed when that was the sole creator of this work and he was telling the world that he was the only one involved in there's doesn't that kind against you or your argument of joint ownership with respect to at least one of the elements about an objective concern your honor but i think you have to look at it in the context of this culture of secrecy that this artist propagated with all of his insistence as you know this this proposition about authorship is of question of fact i and particularly in the context of the copyright act these kinds of decisions and authorship summary judgment is disfavored for good reason you want to look at all of the factual circumstances that are attendant on the relationship between the parties and here you had this particular problem with with this artist he propagated this culture of secrecy he had these assistants who were providing this the actual artistic work he couldn't meet the strict standard that he or to kill aides for the copyright act i mean he couldn't identify his work he couldn't identify that he didn't have it a shared arrangement with people all of that was part and parcel of this context of secrecy that you had to consider in looking at the more than happy to judge present and you start with the the issue of control and again the context of the relationship here is particularly critical this was a particularly fluid collaborative effort on the part of the the people involved over a number of years they had a process to which everybody testified and it was there's little dispute that that was what occurred that there was this fluid collaborative process but there was also a problem in that client spent working on the ard i don't think we have a specific number of hours that was identified but it's it's very clear he is how many days does the record show anything about how many days he spent you know it was hundreds of hours because he worked nights and weekends i mean in addition to doing contracting work for mr cho hooley he did he did hundreds of hours of time weekends and nights performing the work that we're talking about as did the other assistance with whom mr hu to whom he actually settle so you had you had a testimony in the record that indicates that mr moore i contributed significantly he controlled his artistic contribution to these to the  artworks issue the two hundred and eighty five artworks that he's identified in a number of to who he series that he was a distinct or to spend and contributor to the to the art that was involved in those cases he was not merely copying a style or you know a overall concept he was independently contributing as piper o'neil one of the assistants testified unique contribution unique work that was being undertaken so you have this this control issue that was i mean on all those respects to who we control well he decided the other what he wanted to do with the artwork and certainly that's something that's the case but in terms of the control test it's the control of the the contribution to the  demerged joint effort that's at stake under the act and there's no question that these systems were talking but each contributed and controlled their contribution to the artworks that word issue as did mr mr mo indication that mr moist pacifically identified his contribution to a specific series that were the output of the truth to who he studio and that that street identification of the specific contribution brushstroke by breaststroke to a particular painting is not necessary under the act and in fact mr julian self couldn't meet the same standard to which he would have the court hold mr morning he could not identify what he did he couldn't identify the particular projects on which he was involved he wasn't even present when some of the words were created and he had others sign his name on them as if he were so he can't demonstrate the strict standard that we're talking about here there was nothing but he's got it we're not deciding this case whether he has a copyright claim we're deciding whether your client does what we're deciding whether they were joint authors your honor right so they go beyond a bit well let me just i just want to just look at this part of the record i thought he couldn't identify any particular work in which he had made a contribution to looking at one thousand one hundred and twenty eight of a are misreading as indicated in our brief he did identify in the record on the record that he contributed to a number of the particular series the burn in pumpkin series in particular burned because of the nature of the the burned a background that was involved in those paintings and that series of paintings he contributed to he testified to that there was a testimony from piper o'neill he offered he provided unique contributions on a number of the of the works that we're talking about in this case and you had expert testimony that indicated that he in fact provided independently copyrightable artistic contributions to to the various paintings at issue in the case so whether he could identify his specific contribution on a specific  painting he said i can't i can't say that specifically but i know that i review of all the six thousand paintings that we're talking about more than six thousand paintings the two hundred and eighty five that he identified were paintings on which he contributed that was his testimony on the record if you turn to the to the nd issue which is the intent to create a coauthored were one of the things that i think is very striking in this all the the non barking dog that abraham lincoln spoke to in the one jury trial you have the fact that mr chu hooley did not seek out section two a one protection in this case if he didn't believe that he was engaging in a shared artistic right he could he could have done that bears eat nothing required in the new way well he is not required to your honor but there's a strong inference that a reasonable jury could have from that that mr true who he was very he comfortable with the proposition that there was a shared artistic endeavor that was being undertaken here and that's consistent with his promise of financial compensation to the existence of i'm going to take care of you and the company is keeping track and so there's an indication on this record that there was in fact that intent to create a joint or you know a joint authored artistic endeavor here is a record show anything about it if i could show it in the end of the record show anything yes the other words if someone was working with the expectation of payment it was not getting paid at some point you would expect them to go in and say where is my monthly or yearly check but did that happen here when he was he was consistently reassured by mr hooley who was a close friend of his that everything was going to be fine and he was going to take care of he was paid as he went along for construction related work but leave us not lose sight of the proposition and i think i was go add this in response to your earlier question judge you have in this set of circumstances hundreds of hours of contribution nights and evenings made by mr moore for which he was not the was not compensated he relied on the assurances made to him by mr hour in at times yes and in times it was barter there were there were you know things given to him in exchange for work that he performed so there was compensation sometimes not on an hourly basis it was a very again  control collaborative artistic process fluid process in terms of the compensation as well as the last the last point is the question about whether there was the you know the there was a  joint appeal of the of the artistic every effort that was undertaken and that the district court specifically found there was a question of fact regarding a clearly the contribution of mr moore and the other assistance to these are words was essential to their integrated final mori offered independent artistic contributions to the to the works that that are an issue and that those independent words were copyrightable this is not a circumstance where somebody just threw something into the pot  it's not like the movie set that was talked about in all my homage you know that was the malcolm x film this was a circumstance so you know in all of the people on a film set being contributors that's not the case or you have independently how did it was assumed joint authorship what does that entitle you to from mr frum to the studios well i think the requesters was for declaratory relief as to what the the precise financial consequences of that would be and well that's been my that's my question you were paid so is it isn't your joint authorship claim at least as far as it seeks damages depended on the promise or to stop all the contributions he made allegedly made to the art were done for free well that's the that's the position the hooli people take he did not do that i mean he's never been paid any but i thought the position they took was that it was a contract employee and was they best part of they let him do this is part of his contract work i don't think that's the case i don't think there's been any indication that he was compensated in any way for their artistic contribution to the works he didn't ok give you a minute for about a thank you out and that the wrap up is in washington law permits in foresman of contracts where you have open price terms where you have a cases that indicate that there is not a specific price that's attributed to the notion that you promise to take care of someone financially right now is sufficiently enforceable under washington promissory stop a law to be enforceable and the trial court here the straightforward application of settled th circuit law of the united states copyright act two a set of facts presented in the evidence for the record before the district court that makes the outcome below not just appropriate but we believe compell it should be affirmed as an initial natter excuse me and tell them we would like to skip a threshold issue in the case and that is what specific worse are we talking about here i know of no case where were status or joint authorship went forward when the outlook and could not tell us what specific words are were at issue i and so i would press on that i mean i think i understand your arguments and in the  k you know if you and i were to write a book together and i could remember the sections i wrote then maybe that would be significant but here he's not an artist and he's basically saying i'm i worked on apparent he had twenty one months between his demand letter and when he came up with his list of you know a couple of one hundred over that period of time we supplied him with the entire portfolio of them is just to look at that's my recollection because they were created on years when i was in the studio when i was president he makes the leave that his presence on those dates which are not even specified assumes that he had a contribution which is the which is suitable under the copyright act to pursue joint author status that is that is the record and it took a long time for him to get that far and our view is that that's not joining this time period i think that today i can't recall what they were but i worked on everything that was there and and he did need whatever other showings were necessary to show show joint ownership would we throw out the claim because he couldn't testify with for sedition that he made up a contribution to this particular piece of art i don't know that you would this case mr moore it was not there every day during those years he was only there some  i can't tell you i'm not certain i'm on a bill to identify it i need the deeds in order to be more more specific i never said down with anyone to try to figure out which paintings i did that's one thousand and ninety and i think very revealing only he said the following i went to the garden last museum but you've only museum of seattle center and i went with my lawyer the purpose was to identify any of the paintings or drawings in which i participated as the part is not i'm not sure about it may not make a difference but i did it later plea i'm not sure that it then it's conclusive that you know he's hearing that he couldn't identify and i don't understand i think the answer your question is it was not dispositive necessarily for the district court because just last week went on to say let's assume he could identify that that's not the end of the inquiry it's the beginning of the analysis and there he goes to the factors under obama but let me let me this question let's assume for the record this soon that for the moment that this record establishes that he never could identify a particular work of art would that be dispositive i think does understood judge press but i thought he said with this court to point out to mr moyo started this complaint started his demand by saying that i have thirty five corroborating witnesses by the time i got to judge and he had zero he places some deposed she didn't give a declaration there were no declarations by any of these thirty five witnesses she was deposed and she's the only fact with this it was deposed and what she said was this i can identify by looking at the images before me and that were full i can identify what i did and which paintings i participated in but i can't tell you a single one that mr boyd did in fact she answered that question thirty times between your four hundred and thirty five and your poor forty four she said the following i can't say for certain i just don't remember meaning let me ask you the question i asked before differently because now i understand your response i suppose it would be fine if mr boies couldn't identify any particular work but another witness could so my question was meant to be is the inability is the app lack of evidence in this record assuming that it's not there that mr moore i contributed to any particular piece of work dispositive of his claims thank you i think it could be but i would for purposes of argument i would say it's not necessarily the case and that's why it's important to understand judge lastic also went through ability they made the decision whether to keep and what to discard when to sell and what's alone and when to exhibit in what the license mr morley had absolutely no control on that and mr  julie had the opportunity to take or leave any contributions that moyo or any other employees who were actually hired assistance but they may have contributed in the way of background color or drops or if the evidence of it but he says i was allowed to create parts of this work and i wasn't told what to do i did it myself it was independently my stuff and so i controlled what i put in it may well on religious and historical facts to make sure that the production was accurate in those regards what the court said was a contribution is not necessarily a joint authorship and here julie had the ability to take or leave anything that any of the people participating are collaborating but on the canvas but on the beaver but on the painting that is control with respect to the nd home an intent it's important to recognize that how is that consistent with him saying it was anything other then and then reasonable effort to lever just settlement it was as judge lasting found with abundant evidence an effort to try to leverage a settlement without having thirty five dollars corroborating witnesses without having the video that he said in his demand letter he had which would prove his claims without any documents that he said he had so my answer your question i guess is not a short as i had hoped it to be only the time that would invested with respect to the defense of the promissory estoppel claim that you all attributed research to the work with regard to as well as any of the others they claim is that right the only only the that was awarded was with regard to work on the copyright yes that is correct but to be to be absolutely precise we we took that out ourselves and judge leslie the course adopted the net result of that so we took it out it didn't have to exclude it i know i'm over mine so i would like to answer a couple of questions that the tennis asked of opposing counsel what is this is the same question i believe the and answer was this elmo hammad out of quantum theory cause of action michael moore they did not it was swinging for the fences he wasn't looking for some calculation of our standard a reasonable rate he went for the big ticket fifteen years of time that was involved so you had you know the idea ability to identify the precise brush stroke on a particular painting amongst thousands of paintings accomplished over a period of fifteen years is just not there but mr mori testified sufficiently to document the fact that there were two hundred and eighty five dollars paintings to which he contributed mr schneider did not deny the fluid collaborative process that was involved here did not deny that mr  many instances physically did not purchase in any way shape or form how could your role under circumstances when he wasn't even present the art work was created by the assistants like mr morley and the