work for hire issue and a finding of preemption of california civil code section three three four four concerning rights of publicity on a without argument the premier or the the scope of the employment copyright issue i think is pretty clear cut from the briefing it's essentially a contest of facts issue and you know we feel that the facts are strongly in our favor to the extent you know to the extent that there was not only a disputed question of material fact but that the material facts are clearly in plaintiff's favor that this work was not done within the scope of her employment and there was you know nothing else like a signed writing or any kind of contract  sufficient to transfer copyright to blizzard so i'd be happy too entertain questions on that i have a feeling you know as we argue in our briefs that perhaps the district court was is was operating under just a misapprehension as to what was involved with mrs miss looses duties which can happen i mean this is a dealing with pretty new  you know in the fact that all the participants and players of his game paid fifteen dollars or more a month to participate it was certainly more than adequate to fund that kind of instantaneous support and counsel i want to ask you just as a preliminary question you have your federal claim your state claim yes as to your state claim it was alleged in the initial complaint that the nyssa complaint was if i remember correctly case child custom insurance company that says under these circumstances the planet has waived her state law claims because it was an initial complaint that was dismissed without prejudice and not realized your opponent in a footnote page forty six of the red brief note thirteen makes this are you now it's not the most development argued but they do make it and yet you did not respond to it in the reply brief so i want to give you an opportunity now why isn't the state claw state law claim just waived sure your honor i guess there's there's a a bit of a spectrum between permitting amendment or dismissing without prejudice and subject to rule have been commercial misuse of her quote mean for the signature photograph or whiteness that is not fixed in a recording ok those are that's a lot of conditions while always subject to rule consistent with roulette and therefore we had to cede you know this was in substance a dismissal with prejudice on this point subject to the manner in which the district leave to amend it was of the kind that was in your view excluded with prejudice as being preempted because yes that's i mean she said she says the district court judge said to the extent it's because amendment does not appear to be few tile men a men subject to these conditions and this is my understanding of you know a based on this reading of the wall we did not feel that that gave us arc to the extent point of musical composition in particular is copyrightable then the voice misappropriation claim fails and it's preempted  be protected under copyright law if that's the case then point of cannot have a copyright in the subject matter of the dispute but yet they're still using her voice and that you know puts us at a dilemma but we would assert that you know and we think the statute makes clear that to the extent that what is being appropriated by defendants is not covered by copyright law it is very much protected by state law and actually you know i was thinking of of you know again there's a case like was in other things avoid that situations when there is a conflict and when it looks like there's going to be a potential conflict they say well hold on state while preempted have a nice set in this case again if there is a clear determination as there has to be somewhere along the line that point of contribution is not covered not within the scope of copyright but it will be covered by state law questions and i think a good  fifty years later someone creates a song which the samples that you know somewhere between ten and thirty times to service the backbone of the song well under the defendant's understanding of the particular to deal with these situations that are not covered by copyright law you know we think that the correct interpretation and as would be the case here is that you morning your owners may please the court mark may or counsel for the defense in this case blizzard entertainment and activision blizzard your honor the core issue in this case we believe to be the work for hire issue our view is that this case presents the classic parodic matic example of a work for hire what we're dealing with here is we're dealing with a few minutes of voiceover recording contribution that was made by the plaintiff while she was a full time employee of our client a blizzard doing work that was contemplated under her employee handbook and her job description doing work that was related to directly related to and at a minimum incidental to her broader responsibilities  blizzard into the world of warcraft team doing a task that was invented and invented by blizzard not a test that was self motivated or self directed doing work at blizzard's direction under blizzard's control at the blizzard recording studio using the blizzard recording equipment which was set up and maintained and determined by a blizzard employee this is during business hours while she was on the clock she paid her regular salary and for the very purpose of making a voice to be used in the game there was really no other purpose for for this project the facts here were undisputed there set forth in the briefs  employment to determine whether it's within the scope or for employment courts then look to the restatement of agency and they apply this three factor test as we understand the plan disposition two of those three factors are either conceded or are all but conceded there's no question there's no dispute that all the work was done on company time on the company's premises and there's also no dispute that it was done for the purpose of  benefiting blizzard and certainly actuated with the intent of providing a service to her employer within the scope of her employment as to the first factor whether this was a work of the type she was employed to perform we think the job description makes that clear the job description specifically provides that among the tasks she has been employed to perform is assisting with the creation of content during the ever ongoing development of the world of warcraft game that is precisely laws because this isn't the kind of thing she was doing on any kind of regular basis appears to be a want to off and that that may be true that this was not something he was this kind of recording yet no i would i would no your honor that the call for voice over work was given only to the game masters this was an opportunity that was offered soley to the game masters it was accepted by one hundred twenty three game masters now the test necessarily is broader then what an employee's day to day tasks are and it necessarily has to be broader because from time to time employees may be asked to to work on something that may be a little bit of a departure or something different from that day today and when that happens well we look at as well what's the relationship between the work that's being done the particular task and the employees other tasks that they're doing what is the job description say was this incidental to the employment this is something we might expect an employee to do in the course of their employment is it the employees were weren't required to do this task it was offered to game masters because of game masters particular expertise and knowledge and involvement in the game interacting with the game knowing all of the ins and outs of the game one hundred twenty three offered offered their services to do this work miss lewis was selected to do it the fact that she wasn't out of how many i don't know the answer i would imagine  curiosity but i can imagine somebody want to do it my son plays the game i suspect if he had a chance to contribute something he'd jump at you and in fact the testimony of ms lewis is that when she took the job she had heard that other people were given these kinds of opportunities it was something she hoped to do she is a fan of the game as is as are many of the people that work at blizzard she welcomed the opportunity to do this kind of work she hoped that she might be able to do this work and he went in with the nature of the unemployment is if we're talking about someone who's employed in a completely unrelated field they do something completely different it's not in their job description it's not related in any manner to their other work then that might be a different conversation here we're not even close to that situation we have a woman whose job is to work on the game to work in the game to be present sometimes as a character in the game to interact with content in the  game and her job description explicitly provides that among the tasks she might have to do wolf is working at that working on world of warcraft maybe that she needs to assist with content he may be assigned to  different team he may be offered the opportunity to volunteer to help out with other projects but this is specifically contemplated as within this as within this  job and i'd like to know just speak briefly to the preemption issues because i think that the state law claims and the preemption issues are extremely straightforward and we're guided by  this court's decision in the laws case preemption as it is a two part test under section three zero one of the copyright act the first question is are we dealing with content or material that is within the subject matter of copyright and then second does the claim seek to vindicate rights that are equivalent to rights under copyright laws and the other cases we said to jules jordan case the butler case make very clear that when the claim involves a sound recording or the use of a voice as embodied and encompassed within a sound recording those are claims that are preempted those are copyright claims they fall within the subject matter of copyright in this case a sound recording or the vocal performance as fixed in the sound recording and they seek to vindicate rights that are acquittal and her claims in this case are very simple blizzard took the sound recording which contain my voice and they put it in the game and they synchronized it into the baby creature and and character that is exactly the situation in laws that's exactly what  contemplated by the kind of claim that would be preempted by the copyright act now the plaintiff makes the point that this was sort of an alternative claim because the defendants have argued either that the noises are not copyrightable or that there is no musical composition or that they're de minimus that is not relevant to the preemption analysis the preemption analysis does is concerned with whether or not the work is within the subject matter of copyright a sound recording is within the subject matter of copyright now whether or not that recording is copyrightable whether it's whether it possesses sufficient originality to to become copyrightable and protectable doesn't take it outside the subject matter of copyright that's made clear we discussed as a pages fifty three through fifty five of our brief it's also discussed i think most notably in the motorola case that was a case which involved the basketball n b a case involved transmission of sports scores the issue was well the facts and the scores are not copyrightable can there still be preemption and the point that the court makes is whether or not the content is copyrightable or protectable it still falls within the subject matter of copyright and this case the subject matter of copyright is the vocal performance as imparted in those sound recordings and it was the sound recordings that were used this was not a sound alike case this is not equivalent to the the of stroke backwards you know motorola n b a cases second circuit case we don't work that hard to distinguish it because it's not this court with regard to the preemption issue again this was dismissed on a motion to dismiss and there seem to be a lot of room for debate about this there are we will concede some quotes that one can pull out from cases like laws that appear to go and what the meaning of the was defendant just argued that this material with respect to the work for hire appeared in an employee handbook and a quote job description it actually appeared in a training manual and there were numerous contradictory paragraphs some much more specific that go against the general use of the word content including one saying essentially your job is a custom you know so essentially your job is as a customer service representative and five other things and you know and that's the facts of the case and again you know this was given on summary judgment where there was very little factual development and testimony and you know this can happen that i've seen this happen in cases where kind of individual documents or go all gone to and the context the broader cont gets ignored and we think in this case look at her job you read to raise the example of other parties working in the company i mean essentially what they were doing is trying to save a buck by saying hey what's our what's our biggest employment  that i would do i mean that would render you know any case where this takes place as a tautology you know if she she received new training and there was maybe a jump in wage s there's a case that is cited by defendants i believe it's a southern district afford a case where they actually did find the work was work for hire in terms of creating cooking manuals for pasta which was not what the guy was originally hired to do but the district meets pacific findings that this is the individual's job changed and there was a material shift in what he was a yes when we consider the reporting much more significant than the composition of the song and her use of the voice that she created thank you very much thank you thing both counsel for your he