good morning may please the court i'm courtney merrill on behalf of  in this case the district court erred in granting summary judgment to defendant career builder on its implied license defense and applied license as an affirmative defense to a copyright infringement claim as this court recently held in the mohammad all the verses first call case which is cited by the district court in this case in the record there's at least some evidence that a jury could find that line coral condition but no such agreement is reflected in the two thousand and eight contract it sells and the agreement of course expires after six months given the various bits of other evidence contradicting the existence of such of the agreement how come we say that this prison some fact question but your honor we agree that that is the evidence in the record that we're relying upon and that the two thousand and eight agreement that expired is silent as to the payment of fees and specifically that sections two point four and two point six so what you have is a situation where there is a written agreement and under that written agreement which did not speak to the amount of fees customer renewed it had to pay it career builder customer it renewed its contract it would pay career builder ten thousand dollars career builder according to mr sheen it's testimony would then pay line  three thousand dollars and when the customer renewed again year after year each time the customer would pay ten thousand dollars or sometimes more sometimes for up to forty thousand dollars and it each time line corals entitle to a fee whether it created an entirely new work or it merely did just a label or nothing and it was a rare instance when they did nothing because of the customer's going to pay ten thousand dollars they want to least have something in these are job use the designs created by lying for all were subject to an agreement that career builder pay line korolev renewal fee every time a customer just renewed a job posting and mr show on hold seems to have been totally unable to identify and occasion on which the party said entered into such an agreement and if you look at the that agreement was corroborated if you look at for example exhibit one is the e mail beginning of the relationship it was negotiated among blake miller and brian donohue and mr sheen it's not there's no way whether they evidence in the record or mr sheen has paid a full renewal fee when he provided an almost limited or or or no work that in the end he was as he testified to he wasn't aware until two thousand and fourteen when the parties agreement began to deteriorate that he learned that there were certain situations when the career builder customer would renew and not pay a renewal agreement and as to the waiver agreement and demanded that they pay royalties a paid renewal fees if they were not going to continue to provide him the thirty five thousand dollars of work each month that he had in fact received and been promised it well he seems to think he's the only one that had such agreement there was that two thousand and eight agreement expires after six months the parties continued their working cristo on career builder there's another e mail we recognizes in the in the record in which he said he's going to go in for the kill and the evidence in the record also shows that mr sheen also saying similar things to rebuild he testified that in two thousand twelve he told brian donahue the senior executive who has worked on this project that he would sue career builder for copyright infringement mr sheen told another employee lauren morris and with twenty fourteen that he would undisputed that line coral owns the copyright to the work and that was the first that the first defense by the defendants was that they own the copyright then and so we moved for partial summary judgment on the issue of ownership the judgment that copyright ownership does lie with line coral but but as to the issue of the waiver that the district court relied upon part it can't be a waiver when mr sheen holt is telling career continue to use it in the face of lyme oral telling them that he was the copyright owner and that he would sue them those the testimony of the district court relied upon are is evidence that career builder could use to or this court's decision and wallet and we have an appeal the district the in the in the in the district court line call made it plain for renewal payments all the way back to two thousand and we've abandoned that on appeal and we've only asking for renewal payments from the so it's text and graphics that causes a website to to look and feel like a website that you would see when you go to the privilege dot com website that's what the product is and it's been copyrighted the copyright office is registered we've register the copyrights to it and if it's used year to year without change  a horrible position if you will in it the d if just if career builder did not want to pay a renewal fee they could make the work itself without using  sale to sign another dream and he did not do so and he testified one of the problems was they didn't get the guarantee of the work had they wanted to get the copyright ownership and not have to deal with this situation today they could have unless the court has any additional questions i would serve the rest of my time for a bottle thank  may please the court i'm kevin may on behalf of career builder i'm the undisputed facts in this case establish that career builders rights to use these designs were not limited to one year increments followed by annual renewal fees but were ongoing without any additional payment required and as judge wrote in a pointed out counsel just conceded they have one piece of evidence that they purport to rely on and that was mr shane holtz's declaration i'd like to address that straightaway mr shane holtz testified in his deposition that he had no memory of a conversation with career builder where career builder agreed that its rights to use these works would be limited to one year increments unless it paid annual renewal fees months later in response to summary judgment mr sheen holds came forward with a declaration that is directly contrary to that deposition testimony but even aside from that problem mr sheen holds his declaration cannot create a genuine issue of material fact in this case because the purported oral agreement he's talking about in his declaration would have been superceded by the parties written agreement it was the six month agreement that was spoken about earlier that was at the very beginning of the party's relationship and council again and mr shane holtz agrees that that's when the oral contract purportedly occurred now this two thousand and eight agreement was fully integrated section it was in it had an integration clause section eight point one five said that it constitutes the entire agreement between the parties it supersedes any previous written or oral agreement and that it may not be changed or early this means that line coral cannot assert an oral agreement as a matter originally the original agreement did last six months but the important thing to think about in terms of that contract having integration kleis is that it superseded the oral agreement that mr shane holds is talking about in his declaration and that oral agreement if it was superseded by a written agreement didn't spring to life again six months later after the six month agreement expired and the parties proceeded on their way to do business together without a written agreement if it was superceded line coral cannot rely on it to survive summary judgment the reason why it superseded is that it's directly inconsistent with the that the written agreement the parties came to who were used no oral agreement because it's not written it's confused with the subsequent relationship yeah well the way the relationship went down is the parties talked about having a relationship coral said career builder would get full on or ship of the ip rights they entered into a written agreement that was short six months where career builder would get all the ip rights ongoing rights ownership rights for all rights the agreement ended after six months and the part spoke and it's undisputed that they agreed they wanted their relationship to continue and lime coral admitted at deposition didn't recall any change that the parties discussed to crew builders rights to use the designs and so then the parties moved forward for another five years and thousands of projects without a written agreement the law says that in that instance career builder is entitled to an implied license and we all agree that career go there was entitle to an implied license so career builder has met its burden of the stablish ing its affirmative defense then one coral comes in and says ok yeah you had an implied license but it was limited by our oral contract so this case really boils down to can line coral come forward with any evidence from which a reasonable jury can determine that the parties  into this oral contract and what i'm saying is and in its reply brief in its reply brief lyme girl makes the point that there was no schedule a attached to the two thousand a degr and that's where the agreement to pay or in the renewal fee would have been documented can you please address that point and the related argument that the two thousand a degree mill was only partially integrated delay yes your honor i think it's important when considering the fact that schedule as a was missing from the final contract to focus on the language of section two point six of the contract because that's where schedule a is introduced it says career builder shall pay contractor for final product delivery per the fees contained in schedule way and we're missing schedule a we have to ask ourselves ok what information are we missing the language here is very clear we're merely missing the amount contractor with pay quote for final delivery unquote that's important because it's a very narrow fact that was missing from this contract it's not about what career builder might pay years later three years four years five years later it's solely what career builder would pay for final product delivery so that your honor i would agree there is one open question in this contract but it's merely what they would pay when they received delivery of the product and if if one coral was suggesting an oral contract on that amount like oh it wasn't three thousand dollars that we paid when you delivered it it was thirty five hundred or something like that they might be able to argue an oral contract but what they're suggesting is an oral contract that is far different and far broader my point being that to the extent there is an opening in this contract it's a very narrow opening that relates solely to the amount paid upon receipt of the product and they're trying to it's a it's a fairly open window that they're trying to drive this oral contract through and there's not enough room because they're all contract it is quite different than what career builder would pay upon file product delivery and it's also important to note that it's not just section two point six of the gree it's also section four that's the ownership section and that's where the contract said curricular you're going to own this intellectual property and that in and of itself granting somebody ownership of copyright is in and of itself directly contrary to the notion that the parties had agreed to limit career builders rights to one year increment unless it paid additional fees and you grant ownership you're granting everything forever and for always and you don't grant ownership if you want to limit somebodies rights to one year increments unless they pay for the next year and the next year that's a license agreement we've all seen those you because all this was a simple as any other transaction you have every day yes somebody to do a project for you they do it you agree on a price they pay it you walk away you never see have to speak to them again now these guys did lots of those and sometimes career builder asked line coral to make provisions and they paid them they work that out on an ad hoc basis but revisions have nothing to do with this case because th case about what career builders obligations were when line coral didn't do revisions just and and you know just another year of career builder using the product that it purchased it's a simple as that current forever seem to be would this kind of product you that are constantly updated it really would make revisions somebody says it's really not as complicated as it might seem these are just graphic designs just to answer your question earlier about what are we talking about here career builder has a website where employers can post their job openings and line for only gotten volved when the employer wanted to enhance the appearance of its job posting and curricular a little bit more to stand out have their brand have their look their logo their colors so they pick rebuilder a little bit more career builder would hire line coral do these computer graphics for us we're talking about a lot of builders and customers yes he has lots of customers and there were lots of these projects and career builder would look to land poor as a graphic designer and lots of other graphic designers but the important point here is that it comes down to did these parties enter into an oral agreement and mr sheen holds his decoration even drawing all inferences in line corals favor cannot create a genuine issue of material fact because that purported oral agreement would have been superceded by the parties written agreement along with who are we can and we do and that's part of why a career builder was leaving lime coral one cor was happy going along and getting its three thousand dollars and tell career builders business changed and didn't need them anymore and then he pulled out this card that he'd been holding in his pocket and that's what some of those e mails were about apparently been planning for three or four years if career builder ever stops giving making me happy by giving me but the there's a whole host of undisputed facts are drek the contrary to the notion that these parties had this oral agreement initial discussions said that line cora would give career builder ownership of all intellectual property rights to be used in in line corals words not just for the present campaign but for future campaigns was referring to use in the future that's directly contrary to an agreement to limit grillers rights to one year increments there's a two thousand and eight agreement which we've already discussed the full ownership made no mention of annual renewal fees and that section six two point six that we looked at doesn't open the door to argue an oral argument an oral agreement of the kind they're asserting because it's specifically limited to the feed that would be paid upon delivery of the product when the when the when the agreement expired as we discussed the party said they wanted their relationship to continue and they didn't discuss changing it at all there's a course of conduct here that six years and more than two thousand projects long were line coral was never paid an annual renewal fee and never asked for an hoping for a big payday what happened when the when the relationship broke down it one call wrote to career builder and said hey you're still using my designs and you don't own them and i do and i'm revoking your rights unless you pay me x dollars that's the holding career builder hostage point that gets discussed in the case law about why we have these implied licenses to protect purchasers of copyrighted products that didn't get a written assignment and so they said aha and they sprung it on him but here's a key fact that's undisputed one coral during the six years and more than two thousand projects wasn't even checking the career builder website to see whether career builder was using these projects for more than one year and if they can provide no basis for why they wouldn't have as their owner testified take a couple of minutes to look at the publicly accessible website that he worked on every day why if he truly had a contract with career builder that their rights were limited to one year and he was entitle the annual renewal fees if they use it for more than one year why wouldn't he at least look at the website and see whether they were being used for more than one year so that no one wouldn't behave that way yes we are seeing that that's not the case  happy with of the way things were going to get this three thousand one time three thousand dollars one time payment getting it this work he was fine he wasn't he wasn't looking for that three thousand dollar annual rent a new ity that he's now claiming until the until the relationship broke down there isn't nothing left he says aha i'm going to go after a big windfall here whose career builder paid more than three thousand dollars since that initial agreement over time to line corps off i think that the answer is that they typically paid three thousand dollars perhaps not every time and when they had revisions that so when they had revisions revisions were dealt with on an ad hoc basis and the career builder in line court worked that out sometimes line coral got paid nothing big for whatever reason they decided this one isn't going to get paid on sometimes it got this appeal is just about renewals which is career builder using that product for another year without asking for any revisions whatsoever thank you thank  me address the bad faith declaration his deposition testimony is inconsistent and within the deposition itself i believe it's page one sixty five of his transcript where he says he was paid renewals and had an agreement with blake miller later it says it can't remember an instance the jury can reconcile that with his own direct testimony in this deprivation that he was talking about there wasn't a discussion about it after the two thousand and eight agreement expired the agreement to pay renewals was entered into at the time of the two thousand and eight agreement now i want to address the superseded issue that two thousand and eight agreement was integrated and two point four two point six zero that green meant address fees and they talked about a schedule eight the part of disagreement there was no schedule and the parties did not deal with the payment of fees in this agreement they just simply didn't there's a host of evidence in the record talking about payments of three thousand dollars or ten thousand dollars it just isn't part of this agreement agreement was partially integrated in the issues of fees is not barred by this provision  fifty percent of the work expired the greenman expired but what remained was an obligation to pay renewals if they wanted to work with one coral letter of course any questions my time is  taken under advisement