superseding in one nine hundred seventy five grand from her and her husband at a time when she had the president right to serve a term a nation notice she precluded the plaintiffs other heirs of alb sr from subsequently attempting to terminate the author's one nine hundred seventy five grant during the second terminations window but the district court and plaintiffs have acknowledged the validity of goldies assignment yet plaintiffs urge this court to do something that no other court has ever done and that is to decide that a controlling heirs post one nine hundred seventy seven grant leaves a window open for a later termination other errors and effectively terminating a post nine hundred seventy seven grant by an air which is not subject to terminations under sections three zero four d or section two and three of the copyright  one one kind of orienting principle as you know for all the copyright act intricacies tell me if you agree with me that this really is a case that comes down to contract interpretation in terms of what the one nine hundred seventy nine assignment did or didn't do we know we have the seventy five agreement the seventy nine agreement could extinguish it that's possible but isn't this case really contract interpretation well as a cover it lawyer i'd like never think that anything is just left to copyright interpretation no known contract interpreter but i believe that certainly one has to look at the contract and under state law in missouri which basically says different from new york and california that where you have an agreement between the same parties dealing with the same subject matter and then have the subject subsequent agreement the same parties in the same subject matter that the second agreement automatically supersedes agreement it looks like a back of the envelope type thing that someone then decided to type and sign that even of commas this one is a whole lot better but there's a little more to it and so you could see them saying well we're doing this because of concerns about derivative works or other types of copyright interests that they you know they could well have had the sons two sons might have had so it's not obvious to me that seventy nine seventy nine one is opposed to adding to seventy five supersedes it that thing i don't quite understand ok i would agree with your honor that neither agreement is the model of what a perfect assignment should look like indeed the one nine hundred seventy five agreement which of course was an act was signed prior to the an act in and that meant that the seventy six act basically treated copyrights the a treated office furniture and copying machines it was just another add on it only talked about we're selling our copyrights didn't talk about which copyrights and it didn't talk about what interests  hundred seventy nine agreement is somewhat better in that it specifically dealt with renewal rights which was not mentioned in the first and it  terminations right as it were so that assignment say something about terminations rights it didn't error and the and the courts have held  most recently the the d c comics case in two thousand and thirteen the ninth circuit made it very clear that that there is no federal requirement there is no statutory requirement  for v for intent to be explicit within the document and indeed missouri law makes it very clear that you have to read to remain in some fashion which will not create you've already established it doesn't create a knowledge because you just acknowledged the seventy nine agreement with some topics the seventy five agreement didn't so we've already cleared that hurdle haven't we we would like to think so and that was the big distinction between the mmu boring case why does why do you think that helps you i'm trying to i'm trying to i'm thinking it hurts you because your argument is you've got to give some content to the seventy nine agreement i guess what you say is the only way to get content  seventy nine agreement is that it supersedes the seventy five agreement but i would think it's just as possible to say none of the seventy five agreement is still there the key thing about the seventy nine agreements it adds some rights it deals with say we're no rights that doesn't pro supersedes number one it doesn't prove it addresses terminations rights well of course in one thousand nine hundred seventy nine i'll fly away was already in its renewal term so there was no purpose for there to be a reference to a renewal verse who knows what congress is going to do right and derivative rights in the future well derivative works would be excluded from terminations no matter what but that you're making it sound like all they cared about was terminations that's not necessarily so and it's quite possible the seventy nine agreement is by people that are ignorant of the seventy six act it's quite possible that that most people who signed these are ignorant of the say that place actually in your smile reveals just what i'm thinking they had no idea what they were doing well i think they did i think there are certain things that we know and unfortunately mrs bromley is no longer with us to explain what she did what we know is that in one thousand nine hundred seventy nine goldie bromley as the owner of the rights as the fifty percent shareholder owner of terminations rights as the sole beneficiary testamentary beneficiary of her husband transferred company right ownership to the two sons but she wanted to own the copyrights to the extent there were any deficiencies in the earlier agreement those deficiencies and were addressed by mrs bromley otherwise they would have been no purpose for her doing this at all you know intent is we don't think intent is a significant factor but the one thing we know about the the tooth the one nine hundred seventy nine agreement is that goldie brumley wanted her children to already have given them earlier well because the nineteen seventy nine agreement was within the statutory terminations window under section three zero three zero four c she gave them the only thing that she could give them was the specific right to own these copyrights irrespective of the right of termination from i think eighteen eighty two that you don't have to look at whether she intended to bargain away her terminations rights because you can assume that that it supersedes this supersedes the prior one i'm struggling with that argument based on recent missouri law that that that indicates if you're going to claim an ovation then the recent cases require evidence of the parties intent to enter into that innovation and that it is your burden to show that i don't think we can assume that she intended to take care of the  the terminations but if if if but if intention is it is she then you would have to show that she understood that or had some sort of you would have to have evidence that that was her intention and i'm not finding that in the record and i think that your burden and center ok well you say her only right in seventy nine would have been giving up terminations right but that kind of goes back to what we're talking about before that assumes everything was taken care of in seventy five if there were she did she could give other rights that were not mentioned in seventy five right i guess i'm just not following all in one thousand i'm sorry one in one thousand seventy five there was no  terminations there was no seventy six act there was no right to terminations i understand that but i'm making the point that the seventy five agreement doesn't necessarily cover the waterfront of rights that the husband and wife could have given that the two sons the extent things are not addressed in seventy five that she addresses and seventy nine that shows that it's not quite accurate to say the only thing she could assign and seventy nine was a terminations right there i'm not sure what other rights your honor anytime i'm sorry or any time that you assign a copyright you're not assigning past rights you're assigning future rights you're assigning the right to own that copyright for the duration of copyright and what was changed in  eighty six is what duration of copyright was and the duration of copyright became instead of two terms of twenty eight years it became a life plus fifty and then life plus seventy what about this variation and judge tranches question that if there's one thing we know about the seventy six act in terms of legislative into town is they were unhappy with how the renewal right regime had worked that it it unfairly allowed publishers to get the renewal right and the copyright at the same time and they were come to lightly contracting these things away if one if one thinks of congress focused on that problem wouldn't you think congress would expect courts to be careful about saying someone after seventy eight had contracted away the terminations right wouldn't you want a little bit of instead of presuming that it happened when she would prefer to see some clarity that that's what they meant to do oh forty one could assign not only their original term of copyright but the renewal term of copyright as well what congress tried to do is create a regime under which at a certain point in time under section three or four all that i'm trying to say doesn't that lead one to the conclusion that that policy choice should make courts skeptical of too lightly concluding someone had contracted away a sign determination right after seventy eight well i understand what happened when i think what happened i'm as well but what happened doesn't that lead to this conclusion no i don't think so your honor because i think that again it may have led to that doesn't the policy the one policy conviction we know congress had was about just as they were anxious about too lightly letting authors give up rights to renewal we don't want the same problem to have with terminations rights which would seem to lead to a situation where when you're not sure what an agreement does you should conclude it doesn't give up this key well right it was the key point of the seven no your honor i think that's correct are obviously that's correct the the issue however is what do you do in one thousand nine hundred seventy nine when you have a widow with fifty percent of the terminations right and six children with fifty percent of the terminations right it would seem in congress for the widow who wants to transfer and make sure that her children her two sons own the copyrights for the duration of copyright to send they terminations notice which by the way would have been ineffective so what i think your honor is saying is that had there been a specific reference to termination hundred seventy nine grand reference to assigning her terminations rights ok but that's that's a fifty percent interest she doesn't have a right to terminate she just has an interest in that write shows pretty valuable it is pretty valuable but it's a fifty percent walking right so what you're what i think you're on are saying and i don't think congress was saying is we we expect there to be almost wri like that there has to be a specific reference to terminations especially when the party making that reference doesn't own determination right owns only half of it not sufficient to terminate so i think the congress who struck was trying to address this perhaps not particularly well and certainly not in a situation like this what about the last question i have it for your rebuttal is if you just like the plain language of the statute why isn't this in agreement the contrary i mean i think you're take the view that well agreements the contrary are really referring to pre seventy six or seventy eight agreements but of course as many that much of the cases seem to suggest after seventy eight you can contract this away but that's not i'm not sure that's what the language of the statute says well i think namor who you know supposedly knows a lot about this area thinks that agreement that language covers a situation like this no matter what we do with the language at home or supposedly knows the answer i think that never also suggested that there needed to be one free moment of time between congress has made it very clear and even newborn inciting the history legislative history said the congress did not intend for the ability to enter into contracts to be limited in any fashion whatsoever that that parties were free to deal with with with these issues contractually one one looks at a an agreement almost in this context as an aberration it's not an aberration what it is is the way everyone does business in this business all the time it is a very valuable right to have a terminations right but that terminations right under thr c happens fifty six years after the fact under three or four d it's seventy six years after the fact it's it's a valuable right no doubt but it's fifty six and seventy six years later it was a dream to the contrary only applies to agreements before the seventy six days i don't know i think i think i know i think i think that you have to look at three seven the eight agreements one way i think you have to look at post seventy eight agreements a different way and i think once you have an agreement post seventy eight that is within the the window of opportunity to terminate you have to look at that differently the same way that they looked at it in steinbeck the same way they looked at it milne the same way they looked at the c comics and frankly it's the same way they looked at it in new born as well all of them start with the same basic principles of what is or is not a terminations right mewe born went off on different facts which are totally different from the facts in this case firm decision of the district court for this reason the right of terminations as we all know was and acted to give a second chance to the author and to the heirs it's an important right and one that should not be casually or impliedly waiver and in an agreement that is singularly silent as to that important right thanks she had put in there i want to give up my right to terminate i think she either had to put it in there judge siler or there had to be circumstances that made it very clear that that was the inference to be drawn that she understood that she was giving up that right because every case that we've looked at the milne case the d c comics case the classic v bourne case all of them stand for the proposition that they a subsequent agreement does not automatically supersede as my respected adversary argues it does not automatically supersede unless there is clear language to the intent of the parties to do so and or that there are circumstances that there could be no other fair inference drawn in other words it was it would have been clear that goldie had intended to leverage as the cases we've looked at to leverage that right of terminations and a better agreement one but one way of putting his argument is ok fine maybe the seventy nine agreement doesn't specifically mention but it is hard to understand what's left of the seventy five agreement and so is a matter of contract interpretation i wouldn't consider it unfair to say seventy nine supersede seventy five in other words if there were ever any disputes about what goldie and others had you just would look to seventy five you'd look to seventy nine and if that's true that's problematic because even if seventy nine doesn't mention terminations if it supersedes the seventy five agreement then you're in a world where you don't have a pre seventy eight agreement to terminate and that's just as bad for you so why can't you come at it that way with it which i think is hurtful to your position but what's the answer to that i think if you do come in it that way you have to say that in one nine hundred seventy nine agreement which does go further than the seventy five one to a to assign future renewal rights means  nothing and it it clearly does it clarifies it upholds it affirms the nine hundred seventy five agreement but why doesn't it supersede though it goes it covers i mean it's almost like a venn diagram this is seventy five and seventy nine enlarge law to say that somehow it automatically supersedes if you read those cases you're on i would say if there were dispute about the rights that had been obtained from goldie and albert you would say even today you would look to the seventy five and seventy nine agreements not the words forget terminations rights about royalties and you would say both agreements still be relevant if they should be read in tandem with each other and and the reason is if you look at the missouri cases cited b appellants those cases stand for the same hornbook contract law that exists in virtually all states possibly with exception to york that the parties can enter into innovation in stone all the time in real estate contracts you simply say we extinguished old contract and we substitute in its place this new agreement that was not the intent nor was it expressed anywhere in the ninety seven down agreement by by ms goalie brumley and and it's important to note also that mr brumley is right was not vested at the time she signed this agreement i think it's a fair inference that she probably didn't know or pre shared fact when she signed the seventy nine agreement that she was invested i mean she agreed that at that point she could sound her fifty percent contingency interest if she was clear about it and there was consideration what would it have been worth though without at least cobbling together one of her children because she could i would have i would have paid fair money for it i would have money for that distinction here and the reason i bring this up is that in the mill case and in the steinbeck case in the mill case christopher robin milne had a present vested right that was eminent and could have been exceptions sized by him alone wants to protect the legacy of her family she doesn't want it divided over six people she wants to know that someone is in control of our flyaway why is that not an obvious intention that we can draw from that entry of the nine hundred seventy nine agreement well had she chosen to do that in a testamentary instrument or some other instrument that would have given that intent i can't read that into the into the agreement itself now clearly clearly there was something of rich's i'm going on as far as the mother choosing these two sons or perhaps it was not favoritism perhaps it was privatise i'm good at what she was thinking want i want one or two in charge of what's the biggest money maker that this family is ever going to city and i want to be sure that it is promoted and protected the way it ought to be that's not it an exclusionary necessarily concern if it's a protection of the legacy concern i think that's what you're opposing counsel is arguing and i understand the argument but had that been a maternal concern on her part to preserve that family heritage wouldn't it make sense that she would have at least gone to the trouble of specifically naming that right it was the only thing that had real value at the time it wouldn't it would seem to me that if it was that couldn't pour into consideration that she would have taken the steps necessary to least consult with a lawyer and maybe she did i don't know but but that should have been pointed out we we respectfully submit go back to congressional policy and just branches point you know one thing i'm pretty sure congress was not interested in was precipitated interest family disputes they were worried about people outside the family ripping off people within the family and the family roddick the way the law is being applied here absolutely judge sutton and i think the family context is an important one in this  case because there was a nominal consideration both in one nine hundred seventy five in one thousand seven hundred seventy five it was one hundred thousand well for the transfer to the publishing company it was one hundred thousand that's correct and certainly when the brother william later well if the court should find that indeed there the second agreement is a super seeder and completely above relinquishes or extinguishes completely the nine hundred seventy five agreement then i think frankly the bromley heirs are in some some difficult waters to try to have fun of a lawyer because you don't know i don't know it either even when i'm saying the word germination and in the second document there's no word of termination anywhere in the dock so what it would be i mean i realize the statutory language agreement the contrary you know in one sense it's in your self interest in your client's interest to say ah that applies to everything i don't care when it is but being reasonable that just seems like that can't be it it seems to me i mean i some you think the millman steinbeck cases were correctly decided and those were cases where you have what look you could call those agreements to the contrary but when  up happening is they got serious money and so those courts pretty lightly you know say wolf course you can do this despite what never says how do you look do you think we should look at it is well the way to think about this is clearly if it's a pr seventy eight agreement that's the just follow language if they purport to sell something at does not count that's exactly what the agreement a country language is about and then would you say post seventy eight agreements you then just engag contract interpretation i want to see if they meant to sell it and then if they did and fair consideration then it's enforceable without regard to that language is that how you would look at it your honor i think that's how we would view it i think there is a distinction to be made between pre nine hundred seventy eight of assignments in post seventy eight and i think the milne to answer your question the milne case and the steinbeck cases were decided correctly they just were a far cry from what we have here in this case as the classic met classic media case court held that those situations are far different where there was an immediate imminent threat of the right of termination in and the parties clearly took that into account and it and even expressly referenced it in some instances where where the parties were clearly focused their focus was on that right of terminations here it was not of that's true his brief that in the ninth circuit's analysis in that case it was clear that the suppose that will be agreement was before the termination window had opened so it really counts as a priest seventy  later in seventy eight she and all kind her other two sisters enter into a new agreement that assigns again as your arm recalls the motion picture t v and radio rights which of course had with the same as those of the earlier arraignment but there was a more expansive ride in publication and roll to be recovered so the court in move more not predetermined ation window whereas this case unhappily for your side happens during the germination window that's what makes your case a little harder than your born granted it if it occurred during the first terminations window set by the statute however i don't think that i think it is still critical a critical distinction that in both of those cases the milne case and steinbeck the person who was assigning that right of terminations alone had the the right eminent right to exercise it  in this case that wasn't the situation goldie would have had to go on to one of her six children so i think the class and it seems unfair i think i'm asking the right party this question but isn't if you win under the district court's decision so it's william that sold his interest in the company his share in the company stock it doesn't send a termination rights i get all of that but boy it sure seems unfair that he pays all that money i mean or that that exchange happens and then you're still going to get a situation where his heirs are going to i mean his children are going to participate in this so in other words william collects four hundred thousand for the sale so that's a pretty good deal and now his children are going to participate in that determination right interest that seems like a windfall to me i understand the technical point about the only sold his share in the company that has nothing to do with terminations right i got it but it happened at a time when terminations rights existed and it just you know it just seems like a windfall to me to have lee and i i don't know i don't know the legal answer to that problem i don't know that there are there is one i haven't contemplated that that the fact that there would have been a windfall of four hundred thousand dollars is a sizable share or removing aeration for his share  rather and the other four children or their heirs whom i represent certainly have not seen any consideration from the songs you know represent william's children yes that's right  bromley in that it was the widow who had a fifty percent interest so the widow had fifty percent she didn't have fifty one percent the same way that goldie didn't have fifty one percent and mr crane does represent williams children in this case because i think to be clear in eighty six there's nothing about that transaction that's about terminations rights it's about shares in the company they were selling a car they were selling half of the company that was selling the copyrights in that company or his rights copyrights and consequently it is unfair to terminate a grant that was made within the window of opportunity yet again i can't say that the you know that this was a model of copyright clarity but it clearly was a transfer within the window by william the same way that was a transfer by gold within the window the problem with this case frankly your honor from both sides is that this is not the poster child for copyright terminations you know we try to shoehorn it in because we have no other choice but the fact of the matter is the goal of hundred forty seven he he sold his copyright to hartford music in one thousand thirty and then within fifteen twenty years he bought the company so he solved that problem so everything that congress was worried about was addressed by albert with his own self help he bought the company he took care of the company he brought his two sons into the design totally get the argument just there's no language in the statute that gives you traction with it that's the problem  think there is language in the statute i think it is clear that the statute and legislative history make it clear that one wants to a lab no transfer agreements to be made between parties as i was  saying before your honor the right to terminate happens fifty six years later how many works of art how many copyrights are there from one nine hundred thirty that we're still whistling that we're still listening to on the radio very few it is a real right and it has real significance with respect to certain works but in the normal day to day operation of the company right industries if a songwriter enters into a deal with a music publishing company for work like i'll fly away and the publisher now wants three or four or five years later to enter into a new agreement for new songs what typically happens is the writer says we'll be glad to sell your new signs but we want to renegotiate the first deal now what i think the see your red lights been on for the while saying complete this point yes with a sentence or two with not that many dependent clauses tough tough you know there is a need to benefit authors biolab going them to renegotiate their deals during  lifetime of the copyright and then for those fortunate works that have the ability to have value after fifty six years or seventy six years the right to terminate goldie did it she did it in clear language she didn't use magic words but she made it very clear who she wanted to own these works and whether that's under federal law or state law that contract should be upheld and not be treated as a thank you or thanks to both of you for excellent