with our st case on the docket oil wall a versus roc nation at all should be responding to as well if it's part of the argument no it's just his latent statement of what we've already said legally ok perhaps try to work it in in the st part of the argument just in case there of the punchline music sound repeated performances where he repeated that phrase many many times often times much longer than the song itself it was so popular he created and published a song with a soundtrack that was copyright office consistently granted his application as a reason why copyright defendant had lifted a key signature phrase from my work they knew about my work and they failed to seek a life in court so i believe the motion to dismiss was improper because the complain was basically fun there were facts there for he just that where he stated the coin for relief he also believed the decision was in error because in moving to dismiss the defendant themselves did not overcome the production that his copyrights week secondly people leave the service was actually in fact proper the judge did extend time for service and he did have all of the defendants that are here in this real engagement on that unless the record is more fully developed we're saying that the lower court should not grant a motion to dismiss when discovery itself additional its government could have easily provided relevant information there was not enough information for the court to make that determination what other information would be needed to determine whether the use was transformative who believe that this matter is highly context sensitive and so there were questions that should have and usually are answered before making this particular determination questions regarding for example the factor regarding the amount and nature cannot be explained assessed without as basic questions like why did the defendant use the song why did they use the phrase sorry in their song questions like why is the phrase recurring throughout the song what purpose was served by selecting that particular phrase did the defendants ever consider varying the wording of the phrase the answer to these questions would then give us context as to whether the extent of the copying was consistent with the rule the castle rock ruling quoting campbell talking about whether there was more than necessary that was copied for the purpose in character  are you willing to put in the record that he is still a part of the hip hop community he's still a part of collaboration of some of the top hip hop artists common nas i don't know if the names are important but these are top charting artists that he still do in collaboration with he's doing still he's still doing albums with the test of what collaboration he might as opposed to the original song and it overlaps in the market with the songs that are using the term know why that is important we believe is that if he is a part of this community of people at this point other artists are assuming that he's done a collaboration with the defend and most of the artists that are coming and wanting to use that phrase they're going to the defendant to get the license so his market is being completely blurred is very market as of late we only have one artist that has actually asked for a license from him for that particular phrase prior to he did have ours coming to him but because they took the words of the phrase they just took over the market from him but the confusion is because he's still a part of the hip hop community in fact we were just talking about him being at webster hall and the music was going and the t os going and everyone's assuming that he did a collaboration with rita ora oh your song oh your song is playing and he's like no that's not we didn't do a collaboration but this happened to him on a i don't want to say daily basis but based on our conversation quite often people are assuming that he was on a collaboration with the defendants and and so best therefore that's why we believe that that information should have been for the court the record should have been more fully developed  the only thing that court said was that the audience is different and therefore the market could not have been usurped you don't think that the court having heard the two songs couldn't make a determination without more that the nd song and how it use that phrase was transformative absolutely because they should have that the prior the prior copyrights for this phrase included performance and in the performance that phrase goes on and on sometimes two dollars and three dollars times longer than the song itself and there's a copyright for that if you look strictly at the lyrics and how the court determines that this is simply a poem it's only at the end but most people within the community when they hear when they think of his number they call it party and bullshit they don't call it revolution which is actually the name and a lot of times when a hook takes over a song we'll just call it oh it's called party and bullshit so that's how important that particular phrase has become to his work for the entire song and none of that was considered so the court didn't consider the market the court and instead or the community none of that was in front of her in front of the court when the determination was made and therefore we believe that the motion to dismiss should not have been granted at that point even this court i believe in a television stated that even though some courts to the side by side comparison at this point it's a little early which means done it summary judge motion after a little the record has been developed a little bit more and so we because i discovered a line in my most famous numbers with use by a number of artists without my permission the line party and bullshit comes from a number i wrote in one thousand nine hundred and sixty eight the poem talks about the black experience and the fact and various  within the black community and the line was said by me repeatedly so that the reader or the listener and the hearer could have a clear understanding of what was going on at that time that line has become so important to reinforce what's going on currently so well times he was listed as an expert to discuss the connection between older rappers and today's rappers and that article was appeared in the easter sunday magazine section of the new york times and then he goes on again to say that a lot of people assume that community the collaboration with artists has licensing with seven streeter and he wants to be compensated for that usage thank whether the district court abused is discretion in dismissing the claims against those entities for lack of service and abuse of discretion in not granting scientific additional time to effectuate service in those entities after the district court had already granted two extensions of time to effectuate service on the last occasion said that there was not going to be any further extensions of time to effectuate service a process with respect to cobalt music publishing ltd there's no dispute on this record that the process server didn't even go to an office of that entity or seek out an employee of that entity they appear as the office of a separate entity cobalt music publishing america in entity had the plan to search the secretary of state's website in new york he would have found that they are not authorized to do business in the state of new york and on this record not a few that have no offices in the state of new york so they didn't even show up at the right end of the to find an employee that  a with respect to downtown again on this record is not disputed that the person they served was a receptionist a low level employee when given an opportunity to submit an affidavit in opposition  elements to to make to make that case before this court there's no allegation that they were directed to these people that any employee said that these people are authorized to accept service so th were not reached by the court below with respect listening to the songs in issue in this case which are incorporated in the complaint and clearly within the province of this court to look at demonstrates conclusively that this is a classic case of serious that there's no one factor in the fair use analysis which is more important than any of the others the supreme court and this court has stated otherwise transform e this under the st factor is the heart of the inquiry and i submit that there's good reason for that because whether something is transformative informs all of the factors say for the issue of whether the work of the defendants works in this case or commercial in which they are but that factors not determinative under the law and the issue of the nature of plaintiff's worst work which we're told in numerous cases is rarely if ever determinative in the analysis so i'd like to go to your question of counsel judge livingston what more would you need to hear on the issue of transformative since what is transformative in the words of the supreme court and the circuit is what is reasonably perceived to be we've got a reasonable miss standard subject to plausibility we have the admission of play and pure and simple that the words that were used party an something is transformative is is the admission enough i'm not sure your honor that that's the work the work is taking a different slant on the phrase well if you purpose different character also during the st with new expression meaning or message kerry makes changes to manifest a different ascetic swatch doesn't have to alter the work itself to be transformative use blanched used as raw material and for this further into distinct creative or communicative objectives that's different authors guild most recent communicate something new and different from the original or expands its utility i submit that you take any one of those definitions and the words of the song as plaintiff admits and you know the admission plays into it show that this work is transformative what does that mean if a work is transformative then that what is reasonable to take the amount and substantiality of the taking on both the qualitative and quantitative basis varies with the purpose of the use and what was taken here is a three word phrase one of which is and and that phrase is not quite obviously quantitatively important to plaintive song make a difference of if the phrases sound recording case it's not a performance case we're talking about what is protected under the copyright that plaintive claims to have which is for the musical composition which is the lyrics in the arrangement it doesn't go to any particular performance or any given performance for limited to a thing just the written composition yes that's correct and then finally just i know i'm over my time but finally on the th factor we know it's about market substitution  we also know that the more transformative the work is going back to the st factor the less likely there is to be an impact on the market for the original and yes i agree  and it's fully consistent with the cases that we're not really focusing on the market for potential derivatives it's derivatives that have actually are likely to be developed and it's use or patient of that market not criticism which is lessons that market i'm sorry to have abbreviated so much but under the circumstances i think that shows why a this use affirmed on we have three issues we'd like to address before the court st is in order to come to the court seeking relief plaintiff is required to have a copyright registration in the complaint as a player has not played the ownership of about copyright the copyright at issue in one thousand nine hundred and seventy was owned by douglas music that certificate is considered to be prima facia valid and there's been no facts otherwise showing it was designed or transferred to plaintive given the supreme court's recent ruling in the th state that is an absolute bar to bring a case or for to have standing in this matter another ground this case could be affirmed on is a short phrase doctrine the phrase party in bullshit is simply not enough to warrant copyright protection under the law but it's interval to this piece though i mean it's an important phrase it could be an important phrase but there's no i mean in fact the reason it appears the reason why  defendant used it was because it was an important i would say the defendant used the phrase because it was main go or something that's common in culture and people use different terminology and words at different points in time there is no allegation in the complaint here that plaintiffs coined this phrase crafted this phrase created this phrase in fact councillors argued it was popular in the sixty's this phrase very similar to the phrase when the revolution comes was popular in sixty eight so you can combine otherwise unprotected all elements and get an overall copyright in the poem or in the performance or in something like that but the phrase itself is not independently copyrightable or standing alone those original song and that analysis of the temple and the speed in the type of song is very similar to the very use analysis so i won't really review that given our shortness of time and all the different factors here but we  submit that either the copyright ownership the short phrase doctrine or the substantial similarity doctrine are three alternative grounds on which this panel is able to affirm the lower court decision and less to have any questions phrase song i want to speak to the fact that the three words are not enough my client never sought to get a copyright for three words he copied he wanted the song copyright which is what he did and the courts have said that specific and now it's is where you look at more than just the sound she just did what it seemed to be and are all just listening and so she was until she made the determination and we thought that it would be a more fragmented literal similarity test that should have been done and i think  time they just they didn't to just take the word they took the hook the beat if you listen to it it just sounds it's absolutely same is identical and they haven't actually denied that they said that he couldn't claim but they didn't say that it's not i