the court i'd like to reserve five minutes for retirement i'm going to say the opposite of what i said to the other cases i don't see why this needs to be a twenty minute argument so if you could finish that earlier that would be good   counsel the issue presented by this case is the focus upon the trial court's rulings pertaining to the souvenir book the court found that it was a souvenir under the retail licensing agreement as well as the trial court's rulings on the issue of copyright this case involves a retrial of case from twenty fifteen as well as a retrial which took place during june thirteenth through june seventeenth of twenty sixteen it relates back to conduct as far crates the origin of the dispute and released a man by the name of joe klein who was a high scaler in the black canyon which the colorado river which is where hoover dam was construct between july seventh we really do know the facts ok thank you as you let me ask you a specific question isn't it a fact that the defendant admitted i want to talk about the book the souvenir book isn't it a called the retail licensing agreement and the admission of an oral agreement by the plaintive mr the great and he had he admitted that in volume four  the purpose was for the branding of the restaurant ok but the issue that directed verdict was on was whether the book was a souvenir correct and my understanding is that you did not bring a real fifty p motion to challenge that that directed verdict and that would have been in volume eight and i believe it's around nine thirty one twenty four to one thirty three we challenged the book as well as the copyright issue at that time we filed a motion at the close the plane is evidence which would have been the volume six  the plaintiff made a motion saying the book should be determined to be a souvenir we said it should be shown that it's not a souvenir and that we should be granted a judgment on the that there was no evidence of a breach of the contract relative to the souvenir so there were counter motions the judge accepted demotion from the plaintiff and rejected our  see it on the page as you're talking about that they're discussing the fifty ok it was an intent to use all provisions of rule fifty a and b i do not believe we limited it solely to fifty eight but you have to file another motion at the end of trial that you do that we did not that i'm right so i don't think we have this issue before us so maybe it would be good to move on to a different one ok we can't consider an issue that is a challenge to if you have of how the fifty we can consider it i think i would i would disagree but i understand the court the court your honors decision in regards to the issue on copyright we challenged at every court's copyright decisions we challenged it in volume three one eighteen which would be the in the motion for summary judgment on the eve of trial are you bringing up copyright to talk about the jury instruction what are you talking about right now we're talking about your instruction and we're also talking about the motion of the denial of the directed verdict because in volume one page one into the notice of appeal under item three specifically referenced although the judge's copyright decisions in that in that case we specifically referenced the court's denial of a remote directed verdict under fifty eight you're not moving on from that you're still talking about that no i'm talking about the copyright issue because in this in this case there was no evidence that we had to cook so that directed verdict was on whether something is a souvenir there's a copyright issue in the jury instructions on vicarious copyright infringement is that why your time a copy talk about instruction being against the weight of the evidence and the question is why should my understanding is that the there was no reliance on the carious liability and therefore didn't have to be instruction i understand that it was secur to seek some type of clarification because the court had allowed the jury to hear evidence at the time as to certain evidence which the court later decided after our motion was not evidence of infringement because what happened is that what is the problem with not going is the only issue here whether there should be about harris liability instruction no that's not the question that worth addressing here that's not the only issue on copyright vicarious or contributory that the court that the court run is they denied a motion i understand that i ask you to put that aside for now ok all right as to the vicarious liability issue why should there have been about carrie's liability instruction we want to the highlights to the jury that the information that the court had allowed the jury to hear but in fact and that we had objected to but after our motion the court had determined actually there was no proof of bi curious by showing that we could have highlighted to the jury so they could understand the differences between directed interact and that the evidence that was submitted was even insufficient for purposes  instruction i had against you if he had given about kerry's liability instruction you might have gotten the verdict based on vicarious liability instead as i understand it he said you can't have the seven when that you know shouldn't consider this evidence vicarious liability but the evidence was already met i mean that the finding by the jury was direct liability yes but there was no evidence of that so how did that so i mean you should be arguing sufficiency of the evidence of that but there was only a theory of direct liability so why would anyone give an instruction vicarious liability we were trying to insulate and knock you laid against the issue that all the evidence that was being allowed for direct and direct liability was actually poor evidence and and the judge considered an adequate evidence for indirect or contributory liability and the purpose may not have been th tactical decision that everybody is made we were simply trying to have the ability to argue to the judge jury not only do we have no direct liability we also don't even have contributors no one was arguing that you had vicarious liability when that just have been distracting to the jury to give an instruction on a theory that no one was arguing you were guilty of it could have bent yes your honor and it seems to me that the really significant issue contract and through the retrial many of these theories were thrown out but as a result regionally the plaintiff was requesting a five point five million dollars verdict by the time that it was retried we were limited to a verdict of forty six thousand so i understand your argument that you actually were the prevailing party but say we disagree with you about that then your opponent has argued that not only were they the prevailing party but they were wrongly denied all of the fees they should have been given and in your brief all i saw was a response no no we were the prevailing party have you given any response to their argument that really they should have been given fees for the first trial because they didn't do anything wrong in the first trial if that was in your brief i didn't see it so i'm wondering if you have a response i have a response and one of the interesting things is there is forty six thousand dollars or generalities about whether anything from the period of whether it was right to discard everything from the minute this case was filed until the end of the first trial everything that's because that's what i understood  would be argued that the everything from the beginning until the second trunk should be excluded because you think you're the prevailing party but put that aside say we disagree with you say they are the prevailing party they're saying at the first trial we did a lot of work and the judge didn't give us any fees for it even though we're the prevailing party what is your response to that other than that they're not the prevailing party is there anything that you think they did wrong in the first trial that would justify not giving them any fees for pretrial or trial of the first trial well that's we're just trying to break it up and saying i can give you the component parts and that's the reason why i believe that the judge made the correct decision of not giving him anything well for the first time in the first trial before the first trial they hired an expert and  they put her on and she wrote an expert report and presumably they paid for it and then she went on the first trial and then in the second trial she came back i understand you're complaining about that but use the same theory and and testify everything having to do with the expert in the first before the day before the end of the first trial is just can't be charge she did she made a sex report and she rebuild for the second group work if there was a minimal amount of i think the lawyers had to deal with her at the time of the first trial and then tell her at the time the second trial was in a play they don't have to repeat everything they've done with her at the time of the first done before the end of the first trial that lessen the amount of work had to be done in the second trial because there was overlap that's one question for and the other is whether it was proper to for clue everything in the first trial because the judge thought that they had a stupid theory although it wasn't thrown out i mean i gather the real issue is was this theory that was ultimately just allowed is there some way it should have been handled to have gotten it thrown out earlier so they didn't have to have the whole trial and was more than lawyers at fault for not doing that was at fault for not doing that well and said bag anybody probably saw or at least in part well you just that bad people are doing something improper or it was an outlandish crazy theory or something like that maybe you have a different view ok we objected to it at every he he provided an image to a friend free of charge which in other images is ok quite had paid fifty dollars the reason for the second trial was because of water bottles and snacks but the problem was that the there was a damage request for water bottles and how can they then if they were in good faith pursuing a theory and you asked them the judge to not let them pursue the theory and the judge did let them pursue the theory why does that lead to the conclusion that they did something wrong in going  you're asking me to assume that they're the prevailing party for purposes of the first trial when the court determined that they want to target for over all of the case at by the end of the second trial they're the prevailing party let's assume that i know you've contested that but if we assume by the end of the second trial they are the prevailing party then why shouldn't they get some payment for the work they did leading up to at least some during the first trial because i believe the judge properly if recognized that they didn't prevail on all of their claims even in the second trial ok but so so he could apportion for that but instead what he did is say i'm going to exclude the entire first trial i gather because he thought they'd engaged in some sort of misconduct but it's not at all clear what that misconduct was or whether that makes any sense where we don't have the complete reasoning of the judge whether he simply didn't for simplicity sake by saying i'm going to give you nothing for the first  almost everything for the second trial even though they did not prevail on any of the two of the three issues that they were pursuing even have the second trial they didn't drop all their claims until the trial they didn't in fact they didn't in this case has been about the fact that a different case was tried the first time and then was tried the second time and no challenge was made to the theory of that first case until after the first case was over there is some argument that it wasn't a theory in the first case i mean it wasn't in the in the complaint and it wasn't really argue to some final to the closing argument is that true or not i'm not i'm sorry your honor i didn't understand i thought that the contention or the judge's suggestion was that it wasn't really the theory of the first case that in the first case it wasn't in the complaint and it wasn't really raised in the  evidence was put on it wasn't actually articulated as a theory until the closing argument in the first trial is that right or wrong it was articulated throughout the first trial what happened in the first trial was that mr luxurious theory of the contract was that the branding of the store and everything that had to do with the branding of the store was covered by the contract so his theory was that everything that was used in every way that that that his artwork was used he should be getting a royalty for that and that's the way it was argued throughout the first case so in the first it was it not until closing argument that it became clear that everything in the store included likes consumable items water and snacks that might not be considered souvenirs i think that's the point that i thought the judge got upset about and did that not come out to a closing argument that it included all the food and snacks that didn't come out until after the verdict and after the first judgment he came out in the motions afterwards and actually came out from the judge because it wasn't in the motions so the way that it was our way to how did you get to the amount of damages if you were including the water in the snacks there wasn't a limitation to souvenirs in the first trial it wasn't limited to souvenirs until the second trial in the first trial the theory was every way that it was used and so in the first trial it was pleaded in argued to the jury in the alternative and that's why there were thirty nine copyrights before the first trial not after the first trial and they were only listed in a single claim of copyright and it was an alternative claim the reason it was played that way and argued to the jury was if you find that there's a breach of contract give us the midges for every misuse that there is under the under the contract because it covers everything and if you find that as the trial counsel argued then you won't find anything for a breach then there's a breach then there's an infringement on the copyright what happened is the jury will all returned a verdict and the verdict was damages for breach of contract one point two million dollars and also one hundred fifty thousand dollars for the infringement and then there was a motion brought afterwards judgment was entered motion brought in the motion said those the verdict is inconsistent you can't have both the way that it was pleaded then when judge magistra judge fully reviewed that he said yes and this is where the it first came in he said you construed the contract to broadly and the contract only covers souvenirs so you can't have this the verdict inconsistent and then he considered whether or not to not allow the damages for infringement and that didn't work under the theories and he did the other one that didn't work either so he granted a new trial but he limited the new trial to souvenirs only now we have a very different case because you can we have a very limited license now we're not arguing for a complete license it's a limited license for souvenirs only so if i use or if mr hanson uses that limited license outside of the the bounds of the limited licenses self that's of an infringement of copyright and so you could have both damages for not having paid the royalties and you could have infringement of the copyright outside of those damages that are available and that's where the vicarious liability stuff comes up because the theory then is  the issues are related some of the out of the proof for that group a breach of contract is also some of the proof that goes to the infringement of the copyright but the damages are clearly separate and the district judge or magistrate judge was very careful in instructing the jury correctly and keeping those two concepts separate but what has happened in the briefs in this case of the appellant is that he mixes the concepts consistently and so he wants to have he wants to be able to argue that there is no breach of the contract because i had a license a limited light i had an implied license to use it so if i had a license to use the  artwork there couldn't have been a copyright violation but he had a limited license and he argued throughout it he argues throughout his briefing he has also an implied license the issue of implied license went to the jury the jury was completely instructed on the issue of implied license and was instructed that if you find there's an implied license that's the end of the case you can't toward any damages the jury returned to two separate verdict forms specifically finding there was no implied license so threw out the opening brief we see arguments and they're always based on there's no evidence we didn't have an implied license there was a ton of evidence there wasn't an implied license the first time they started selling to have usually either why are we getting into  plants license problem what is that to do with the current issues before us it has the only thing it has to do with this is that the concepts of been mixed up like that what is the relevance to what we have to decide there's no implied license in because if there was a limited license there could be a violation of the copyright and the argument that keeps being made is that that there can't be damages and a violation of the copyright because we had are right so could you talk about why you think you deserve fees for the first trial and why that you work was useful to your ultimate success all of the work and all of most of the discovery and everything that had to do with the entire case before the first trial and we didn't do anything wrong in that first trial in fact when the judge came construed the statute and gave her i mean the contract and gave a new trial he never suggested that there had been any misconduct or improper what the attorneys fees or i'd cut off everything until the end of the first trial the the attorneys fees that were awarded go from after the first trial to it so anything having to do with discovery or the original complaint or any of that was you don't get fees that's right and all of that discovery was useful to the second part to the second trial it had to be changed in some way for example expert carol had to take out of her report the damages numbers and that's all she did she took out the damages numbers that had been not allowed her her methodology was the same we had the very same problem the real problem here was that one of the major breaches of the contract was that mr hanson would not allow us to get the documents even if you see her it was there a hearing before the district court about the whether you should have fees from the first trial like were you ever able to argue to the district court look i had to draft the complaint the complaint was necessary to win the second trial i should get at least my fees for that i mean did you ever have a discussion with the court about this it was briefed to the court but i don't believe there was a hearing on it my memory of the record is that there was a stipulation to have it heard without my understanding is that such felony has retired is that right i'm sorry that magistrate judge foley is retired is he retired i believe so i would have to start over with a different card i don't know about that i know that he's what he's one of the magistrate judges we've had for a very long time but i don't know if he's retiring at that so i mean in the briefing was it their idea that you shouldn't get anything until after the start of the and whose idea when did it first come up that you wouldn't get fees until after the first trial is over i think it was all addressed but it was addressed in this in their briefing they said we prevailed we prev that was their argument it has always been and it continues to be their argument and we argued that we had prevailed we argued for for damages from the very beginning we had never heard it was in the decision itself denying the damages was the first time that we heard from judge fully that that trial counsel during the first trial had in gauged an improper conduct it was then it just didn't happen before he had never suggested it before it and there was no improper conduct there was it was argued the way that it was presented the theory was never questioned it was never questioned until after the first judgment was entered to limit the theory of under the contract  to what the damages could be and at that point you didn't seek or reconsideration saying oh wait a second even if you take out the first trial we should get the money from the draft in the complaint and doing discovery because that clearly relates to the second trial you didn't ever try to get him to change his mind had no we had  argued in in our motion papers that we were entitled to do it from from the beginning we had made the argument all of the arguments of that even though there was a there was a trial in the middle the case started here there was misstep here which nobody could have foreseen the decision was it wasn't even actually that the issue that was addressed in the post judgment motions it was the way that judge foley dealt with the inconsistency in the verdict step back from it ask question is there any point in our asking in light of this argument asking suggesting a mediation between the two of you were talking about money and nothing else  least on the fuse question rather than sending it back so when more of this would you be willing to do that we have a very can be the heirs and tash the ninth circuit they do a very good job we could at least have you talk to them about whether there would be a point it would be helpful to have some mediation sessions settle all this yes that would be ok with you yeah i i'm sorry i don't understand exactly the question would it be helpful to mediate the issue of whether you're entitled to more fees i think that i mean i haven't had any opportunity to discuss that with the client i'm not sure that i mean their position has always been all or nothing in our and our position i'm not sure that mediation would be helpful certainly if it were suggested and you know we would see the problem here is that with a district judge the way he did it seems very questionable on the other hand there is a whole set of you know complicated attorneys fees law which once it's been to term and who's the prevailing party you then ordinarily and i don't know whether th another way that your fees would be cut so if there is a lot of we said to back there's going to be at least the prospect for a lot more litigation about the phase then maybe it would be nice to see if we could just cut this well we believe that we presented all the evidence that demonstrated both we had two bases for getting our fees which we were under nevada law we prevailed on the contract issue and we don't have the law that was relied upon in california where you weigh it or anything we prevailed on a significant issue in the contract says we should get our reasonable fees about a law doesn't do that kind of weighing that california does right it doesn't preclude it but i mean it's still in the discretion of the district but the standard is that if you if you prevailed on a significant issue in the case that your reasonable fee is but the question is what's your reasonable fee is the question is what's reasonable fees but since we prevailed on the entire case  both halves of it involved the contract issues and we would have had to bring it all at the same time under nevada law we should have gone that also under federal law it's a matter of discretion to award fees to the pro veiling party and i think we definitely prevailed on brief multiple times that we were seeking five point five million dollars and copyright claims it's not true we never made that argument to a jury we never made that argument anywhere we asked the jury to give us we went to the jury on the copyright claim and ask for the statutory damages because on a case like this it's difficult to prove actual damages and you can go for statutory damages and the jury was instructed that if it found there was a willful violation it had to award damages between i don't remember the bottom number in the top numbers one hundred fifty thousand dollars and that's what it did they did the jury awarded one hundred thirty thousand so we prevailed on that claim even though we didn't go to the jury with different theories about violations of different copyrights we went to the jury with the theory that the copyright had been violated we prevailed at trial with evidence so the judge concluded that that question should go to the jury the question went to the jury the jury found in favor of mr luker and that was the second time the first jury found in favor of mr liberals well even though it didn't recognize that it matters well let me ask you a question isn't isn't it a fact that the judge gave attorneys fees to the prevailing party and isn't it a fact in the if he's that he didn't give he wrote him an extensive explanation of why he felt that they were inappropriate he he when he went into a very he would examine everybody's position he explained why he felt people were or were not entitled to a tourney correct that's correct ok and and he did that based on everything that was in front of him at the time based on the pleadings he felt that there were inconsistent pleadings that the complaint and the way the plant complaint was worded and the way the case was tried were inconsistent and so he went through all of that to explain why he didn't feel the that that you were entitled to feast in certain areas for the first trial correct that's correct but then there the basis for not awarding the fees for the first trial was a very short and there was only one reason for it the only reason he gave was he said that the presenting the theory the way that we did in the first case was under reasonable and it was improper and that had never been suggested before that theory was the theory that was the motions for summary judgment that were that were against which which were denied the case was allowed to go to trial that theory was from the very beginning it was argued at trial it was argued to the jury at the trial nobody said that the theory was an improper theory or that it was improper to present it and even later on when the by your opponent at the time of the closing argument in the first trial there were no objections and no first trial it to any of the arguments that were made the suggestion was never made that the theory that was being presented was an incorrect theory that didn't happen until after the first trial was over and at that point there was no suggestion from anyone that there had been improper conduct on the part of any of the on the part of plaintiff's attorneys it was only after the second trial and in the very very final order the for first time he said it was improper conduct on the part of counsel to have made the argument in the first trial construing the contract differently and we think that the contract can be construed differently a decision was made not to pursue an appeal at that time because the contract is ambiguous and it could be read the way that the judge didn't and so we went forward with that but there was no bad faith or improper conduct on the part of the plaintiff in presenting the case the first time it just ended up that based on the way the verdict came out in the way that judge foley then looked at the case that it had to be tried again all right you know i think else i have nothing t always worth a shot tom callahan ok and i'd like to emphasize the reason the copyright damages are incurred are incorrect because the plaintive in the trial said did you have an understanding as to the branding of the store which is what they allege the infringement was on when he said he was such a trial first trial or second trial the second trial came from him and that's the record at three eighty one and now what about the branding of the store was that part of the signed agreement if that is something that happens and he says if something happened that he wanted ok so was it more of an oral discussion on the world agreement yes he admitted there are multiple times that the branding of the store was licensed and he didn't have the ability from which all the copyright damages flowed is as you've heard counsel is arguing that they have the rights to breaches for the sale of souvenirs under the licensing agreement and the licensing agreement therefore license the use and he had the oral understanding when he gave him the image to brand the store yet somehow the jury found out based on some of the confusing evidence that came in that there was an infringement you know how could there have been an infringement when the plaintive by his own words suggests i give it to him to is there anything else you want to say very fast ok very fast as to the feed their images there were many issues that the judge considered for example there were fees from a firm from a prior litigation that were thrown in i know if that is it but in the end he took everything out before the second trial is that not true that's on the cloud that there was improper contact that's what he said because despite what counsel who was not  said we did object and so it's not true that we didn't object to that theory and there was an argument i'm sorry when did you object we objected at the motion for summary judgment we objected at the national argument and we object and we made a so so then that's even worse because if the judge didn't grant any of your objections then what's what's the improper conduct about continuing to argue it because in afterwards the court said there was improper he said it was but what was improper about  about responding to an objection and winning responded to a judge and winning and then having it reversed he bought i understand the consideration but the judge at the end of the day consider