the thing that baffles me the most is that you contend that copyrights belong to kaiser right that's correct well then why are you paying for the extension of the media coverage on them if they belong to you why would you pay for it well i guess i have two responses to that  all contention and testimony that's media usage related to the extension of the model right and that's a completely separate issue but i think the more important issue here is that the media use is dealt with and separate documents which really are not part of the contract that ought to be controlling the proceedings i mean there is a very clear agreement between the parties the engagement agreements which sets forth they actually the photographs were worked night for hire that they're owned by understand if the judge is right that the media used to you know dealt with something else what the agreement was between the parties but that kind of poor old evidence can't really undermine a clear and unambiguous agreement on the issue of copyright owners of copyright ownership i agree with you to the extent that there are agreements and forces that the work for hire provisions and they are pretty clear question i have is it seems to me that there are coverage to the extent that the agreements weren't enforced or specifically extended then you're basically left bare and of course we know what happens then with independent contractors and others copyright works so would you agree that were not enforced that kaiser would not have any copyright protection i know your honor let me explain that all right i mean the timing issue that the district court looked at there were ten libraries at issue preprinted estimate form three days later the engagement agreement was signed the court gave no effect to the engagement agreement in that case relying instead on the estimates between the parties as  agreements quote contain the final complete and exclusive agreement between the parties to your two and any prior agreements promises negotiations or representations relating to this does it matter of this agreement not october and early november one thousand nine hundred well it's unclear when exactly the record is not clear on exactly when they started taking pictures but it's very clear that's a project that's project was not completed for several months after  agreement what went on before then and that whatever copyright rights that they would have were not assigned or not work for hire for that interim i know the district judge covered that whole library but focusing on a subset of what he focused on just say that that wasn't the case i think the time spent covers there too he looked at section thirteen you have what is commonly used in the intellectual property area as a complete set up for kaiser to own the copyright it starts with a work for hire docs from which i believe your honour's addressing that is the creation began before you make it a work for hire right even if that continued and other words if you create something after the fact and let's say that you can't i believe you can and i believe there's case law to me think that you can say that you can't ask when the assignment provision kicks in actually thirteen of the contract it clearly says if for any reason these words don't qualify as words made for hire under the copyright law then can our  hundred ninety two thousand libraries which are the ones that the district court addressed its injunction to is that right and the contracts cover those libraries and as to the first contract it was entered into three days after the estimate so i think you know if the court wanted to make the assumption that work began before signing of those engagement agreements and continued for several months afterwards and you can look at it two ways the work for hire doctrine i think would why wouldn't at least for that three day period whatever photographs it took for three day period wouldn't be included because the contract covers all photography services and the contract supersedes any prior agreement and the contract provides that the ownership of the because it couldn't cover just anything well i think the court is focusing on the period covered by the contract yes that section thirteen really focuses on the work being covered by the contract and  all right title and interest in the experience including but not limited to copyright proprietary rights really there are some i mean i think i'm still having a little conceptual problem that maybe you can help me with i understand it might not it's not necessarily just a time period term but it has to be at least the subject matter that is the focus of the contract so that in your view that subject matter then would come under the  my question is how do you know which subject matter falls in that contract if there are photos that are sort of close in time but are not within the temp started from what before it doesn't change the fact that the payment they're receiving that the the the contract is for those services and the intent of the i c s agreements as they state i an argument could be made that he hasn't but it could be made to that effect that that was those were mistakes but of course if they were mistakes by kaiser then a judgment has to be made as to whether to ask for it back i think the real problem and i think it's a time thing that this court recently dealt with  said no no you know that gives you the copyrights by simon or work for hire you the way i don't want to sign them did she have a contract claim based upon your signing keyser signing of the first estim yes well i mean if you look at the record there's some question as to whether any of those were ever transmitted to kaiser and that's you know was a disputed fact which the court noted it was quite troubled by it was clear they were never on the reverse side at most what may have happened assuming that that they did get it does that prove what does that estimate create terms of a legal obligation that was as you argue superseded but before the superseding had there been no agreement on the california law and certainly this document that was only time by one party could not suffice to create a work for hire agreement under the copyright code so i'm not on that point it couldn't have been a contract but even if it was a contract and if and in fact if it was a contract then i think it would clearly fall within the prior negotiations agreements cetera that are to be given no force and effect because of the  contract interpretation in order to reverse the district court well i think i don't think you would need to look at it from the standpoint of the use of discretion because the questions of law on the contract can be reviewed contract interpretation simply faulty but i don't think it's contract interposition actually i don't think the judge gave any effect to the contract in effect for those two libraries because he determined  somehow the estimates trump the act and became the contract when he looked at the contract in terms of the other eight libraries where he found that the estimate didn't precede the signing of the engagement agreements he agreed contract determination when a full record is there the district court may make a different determination can we really focus just on his contract interpretation issue with this stage of the termination the images that was subject to this point mary injunction motion was denied and the judge felt it was a factual issue as to whether there was a publication or not a publication in a factual issue as to whether a supplemental registration could take care the any publication problems and and that he felt it is par for the complaint was concerned because registrations were allege in the complaint that that gives him jurisdiction because the subject matter jurisdiction and the copyright act then he'll have to dismiss the case that's correct is that issue before us here because we usually have to have power to make a decision but we make a decision do we have to make a determination ourselves independently as to whether or not they're subject matter jurisdiction before we even make a ruling on whether the policeman ery injunction should be granted should be reversed or f not have to be any determination as to whether it's valid or anything off for plan or injunction purposes all of it you have to show is that you actually filed a registration even if the copyright office later down the line rejects that registration the nature of the argument is that the copyright registrations are invalid so therefore there's no copyright registration and therefore no jurisdiction as a factual dispute as to whether it was publication before the positing the copyright application it and to be attacking the actual certificates in the final that's at the trial level has to be determined before a final judgment can be made but for this court has jurisdiction to hear this case just by allegations that there problem with your cases what is your point of signing these five agreements if they really don't have any meaning as the declaration of character in our indicated you know they had entered into any project contract for a lot of advance and it was a request for an advance was actually the same exact estimate contract was permitted to kaiser requesting in advance and they said oh you get your advance before we can issue a check you have to have the service agreements in place and then that's problem because she did sign the agreement and if you look you know i'm sympathetic because many artists are not familiar with the intricacies of copyright as we know amen particularly these later changes on work for hire doctrine but she did sign the contract and the contract basically says that what happens on work for hire whatever essentially anything under this contract is agreement i have to ask myself what is being assigned and so then you go to the service agreement to see what work we're talking about and says under compensation all the work the work we're talking about is go negotiated on a project by project basis so now the judge has to go back to the project agreement to see what's really being signed and then he has a valid contract there with all kinds of evidence technically all the photos she took between the shoot started in october correct so the photos she took between october twenty first and november eleventh could have been copyrighted correct yes but they weren't  ct so we're dealing now with the volume the copyright is for the volume of the library and the library was and then the existence at the time the november twelfth agreement was correct well yes the project was not completed as of november they are not exactly what they envisioned copywriting didn't exist yet so why couldn't the copyright when it finally came into existence why couldn't that have been the in the signed under the november twelfth agreement well because apply black letter law the contract you know the price was there the terms were there can i ask you these i have the estimate here is they have to go through all this or on november twelfth saying now or said look i'm not signing this agreement i'm not giving up my copyright well expenses are subject to normal trade variances of ten ten percent and nowhere does it say that the kaiser is accepting agreeing to pay one hundred thirty thousand dollars just an estimate i'm looking at right there i know i invoice estimate constitutes a contract one of the terms of the contract is that it can be cancelled correct within forty eight hours and so now they enter into another contract is in their consideration for the not the other contract that they're not canceling they're entering and and what does really work for hire because you have to go back to the project and all of a sudden you have a contractor with the project that described it to your license and then all the conduct of the parties and you know from the very beginning to the very but i don't think that that matters john or because there's no requirement that the to your license be in writing and in order for in there's no requirement for current canard to have the copyrights that that has to be in writing and there is no question from the conduct of the parties drop the previous year i have been told that the right license is required to be in writing you know they're not so your argument is no different from the ninety nine library and two thousand library even though kaiser and not your client signed the first one and neither signed the second you don't think that has anything to do with anything absolutely not your honor because the testimony from mr tomlinson it was declaration was that i you know this thousand was negotiated it was negotiated on the on the terms and conditions that were provided to me and then i approved those terms and conditions and paid on those terms and conditions and then i didn't even know this service agreement existed when i negotiated this with this canal or for the two thousand library the evidence deals with things prior to the game is my understanding of those strikes me as you know i thought you had a pretty good argument on the first one because you need those terms and conditions in the estimate as the foundation of your argument and i can see an argument where even though she didn't sign it and they made your agreement subsequent instances both sides have to sign any any other agreement i could understand where you could argue we have that you signed it and that's good enough but in the second one the person scien yet the district judge that second estimate even though unsigned by the parties should be a part of the contract agreement because those terms and conditions i mean they were those terms and conditions were actually in writing and sign correct and your argument has to also be that that cannot be satisfied by the subsequent agreement even though it specifically says that it's not in the can and because when you go look at the adventureland service agreement it  s actually incorporates the project terms and conditions into the service agreement which you know puts the district court in the position of having two contradictory terms i mean because it actually incorporates those project ruled so to speak in favor of kaiser on the other libraries because of the timing of the service agreements and if you read the articles to your honor's that's was not the case at all the judge  there's been some talk about the parole evidence but the contract is the expression of care and can ours intent not her declaration saying what she would have done that that puts this right back into the warren case where you have a party creating it works and testifying about what they would have liked to have done with them contradicting the contract just to talk about judge wallace's comment per minute on the california parole evidence that's really not different than the federal law  can't modify them with parole evidence requires writings signed by both parties there is no such thing and so the terms have not been modified as to what's covered by the assignment the contract does defin materials and i just wanted to point this out at section thirteen and i won't read the whole in my half a minute the whole long description but certainly the photographs taken as part of these libraries and these libraries are are the materials that are covered