nature and the timing of the torches conduct including the time of conversion is best understood in terms of the four converted items and identify those for the court at this time the poster copyrights the film or trademark the poster scrapbooks and the one hundred stet sets of posters or bills stash each one of these items was not disclosed to the plaintiffs and in their in their as beneficiaries of the estate i want to first talk about the poster copyrights and i want to go back in time one step so that we understand a little bit more about its history and how it came about i think it also identif disputed issues of fact there are three hundred twenty five poster copyrights in dispute there were many poster copyrights that bill graham was involved in the ones at issue here were registered in the name of  time he died another type of post or registration which will demonstrate the nature of the disputed facts or the film or corporation registrations the film or corporation registrations had copyright film or corporation right were registered in the name of the film or corporation and they were registered in the same two years that the bill graham registrations occurred they were also done by the same person at the company now the bill graham posters date back to one nine hundred sixty five and they go and of the and they get they divide really in two categories three really the first category are posters that predated the existence of any corporation and that is and of though that's about fifty five poster copyrights of those six nine of those excuse me nine of those were were alternately registered the name of bill graham and these predate the existence of any corporation in the middle are another series of posters and then we fast forward to the last approximately i believe it's fifty five and if you double check my count about the proximate the last fifty five posters and of those they are they were registered within the five year presumption of publish when they were published also in the name of bill graham how do we know that the poster copyrights belonged were owned by bill graham at the date of his death in october on october twenty fifth one nine hundred ninety one we have to go back one step and look at what happened in one nine hundred ninety and one nine hundred ninety one in the record has these all of this this information personal donation and he was seeking a personal tax deduction that donation would have included poster stock and there was some discussion of whether it also had to include the poster copyrights because they would have to be combined in order to achieve the tax reduction goal or tax reduction goal on october seventeenth less than ten days before bill graham died richard greene exchange memos with his law partner in which he wrote the poster copyrights are mostly own by bill graham mostly owned by bill graham not the company and he was talking as the lawyer for bill graham for a tax deduction ten days later mr graham dies tragically in an and helicopter accident the executor of the state nicholas clay knows one of the defendants here assumes the role as executor as selected by mr graham and also as the trustee for the pla us request interviews and does further investigation about the assets of the estate and he says he's now made a determination these changes mind that the copyrights even though they're registered in the name of bill graham and they were registered all twenty five to twenty five of them  his name that they belong to the corporation and he lists some factors now i am not suggesting this court and i did not suggest to the district court that these facts that i'm about to list for you are dispositive of the issue what i am suggesting to this to this court and we we submitted to the district court is that these are disputed facts that these that that the that the facts of how these posters came into existence what who who commissioned the art was that bill graham wearing his hat as an individual or was it bill graham wearing his hat as an owner of a corporation those facts were disputed and they were disputed facts on each issue the artistry of the artist testified who there is who comprise a substantial number of the disputed three hundred twenty five posters each testified that the that that he met with them that he personally met with them that he personally oversaw their their their work approved the artwork had input into what it would be like a negotiated the fee for the work paid a set fee for each posters of approximately one hundred dollars and said you must put on the poster copyright bill graham i call the court's attention to the judge attention back to the fillmore corporation in that in the instance of the fillmore corporation mr graham instructed that the artists write copyright fillmore corporation he instructed the copyright bill graham the posters would be delivered  he said and he said in the end the artist all agree bill graham told them i bill graham own the copyright there is no evidence of the nine posters that predate is existence of a corporation of any assignment of those copyrights there is and the presumption took effect when he put the mark of copyright bill graham on the poster there is no evidence of any of the copyrights through that were registered they both graham that they were ever assigned until august thirtieth one thousand nine hundred ninety five and when it had the court visit what happened there we've already been to the ninth circuit on this assignment in part but we revisit it now because we went back to the court when we were first last  plaintiffs had stated sufficient facts sufficient disputed facts to proceed we've now gone and filled in that record with many more disputed facts that deserve to go to a trier of fact on august thirtieth hundred ninety five mr clay knows as the executor signs a an assignment a true assigning a transfer purporting to transfer the assets to assets are two sets of assets the poster copyrights and ultimately the trademarks some of those poster copyrights are attached as an exhibit but the document itself doesn't say the attachment and list is the comprises the total it simply says all of the copyrights registered in the name of bill graham will be transferred now to the corporation the question arises whether or not that transfer was a valid transfer at the time we must go back a step to determine that that was just to comply with the terms of the contract what's in the area about i don't think there was anything that it was complying with a contract it was a date merely affixed to the document i do believe it is evidence august first and the relevance of that your honor i believe is that on august eighth one thousand nine hundred five the probate court issued its final order and in that final order it stated that all assets of the estate were being distributed to the  assets not identified and not yet discovered and other words in the after discovered assets would proceed and go on a pro rata basis to each of the beneficiaries i submit your honor that as of august eighth hundred ninety five all of the assets in dispute here passed on a pro rata basis to the beneficiaries of the deceased state fifty five percent of which would belong to the plaintiffs at this time and how does what what have they been cheated of just in practical terms they've been cheated your honor of the right and title of the of the three hundred twenty five poster copyrights and in that regard your honor they were not there mr m no signed that assignment he had nothing to assign it already belonged at that point on aug eighth that asset passed passed to the beneficiaries they have as well your honor to answer your question more fully they did not receive the post or copyrights which i would dress independently they did not receive the one hundred sets they did not receive the poster the film or trademark registration which was also registered in mr graham's name there are disputed i come back your honor that there are disputed facts as to each one of these issues but each of these items had value the poster copyright would have had this matter gone to trial would have been assigned by experts who were expert discovery was underway at the time this hearing yes it did it survive this it was registered in the name of bill graham it belonged to the beneficiaries at the time that they sold their shares of the the bill graham companies to the corporation therefore when they proceeded and alex and david graham in particular proceeded into the new company as twenty percent shareholders and were in a position to license had they been told that they had title to that trademark would have been in a position to license it or otherwise exploit it as operators and owners  a sizable a state that that fiduciary can escape responsibility for not passing forward assets and for concealing them and engaging in self dealing for his own personal benefit as to those assets merely because the beneficiaries of the estate inherited a great deal of money or perhaps sold those businesses the sale of the business which i think has been the subject of quite a bit in the briefing from after they sold their their interest to  to the new bill graham company became a part of the that bill graham partnership and then sold to a company called s f x they were they certainly received compensation as did everyone who was a shareholder of the bill graham partnership there their interest in that is no different now the question becomes what is the word these assets part of the sales price we have evidence disputed evidence in the record on that your honor and i think that perhaps more directly answers your question separate had a year and i would submit that had alex and david graham known that they owned that asset had their fiduciary said guess what you own your father owned it now you own it they were twenty play were ten percent partners each in a concert e because of the trademark no your honor because i'd still don't see how your theft orating out the trademark from the i understand the court's question it's not separating from the business the the owners of the registration would have a right to move that asset into corporations that are promoting it whether it be that business or they move to a different business or they establish another business they could have formed another entity it did not have to evaporate in the way it did what happened it could have been well i don't know that the trademark would have been renamed but the holding company for the asset for the trademark asset could have been renamed in fact it was renamed as a fax bought it ok i come back to this issue of the judge by the would get in terms of the practical damages that are employed here if i understand it correctly they differ depending on the group of product you're talking about throw in the poster copyright  claim your claim is they only received twenty percent of the stock as opposed to what they would have been titled to fifty five percent it would pass through the estate you are right there right no honor actually would do respect the we are not contending that these sales proceeds have anything to do with these assets in the documents and in the evidence before the district court is that there were basically commercial archives and there was personal memorabilia the personal memorabilia consist and includes the four concealed assets those assets at all times belong to the beneficiaries it had nothing to do with any of the sales of the corporation they were ultimately sold as a separate  asset they were carved out of when clear channel had it many years later they were sold as ace they were put into a separate entity and sold to mr the least three of the assets we believe were sold to mr to the  j defendants and mr sagan but we are not so we are we are is we are saying that assets that belonged to the beneficiaries were sitting and if you could imagine they were sitting in a and an in a in a sealed locker  passing through passing through the defense the plaintiffs never knew that they existed and as the corporations were sold and after the corporations along after all of those transactions go on and people have moved on and everyone that they dealt with has no longer with the company they find out that there were copyrights belonging to their father at the time of his death or in that or that or that someone else is asserting control and ownership over which would be the b j defendant did receive money as a result of the sale of the of corporations right is a series of sales they receive money as a result of that they did receive money from the sale of the businesses they they sold their interest in the business and they sold but but the assets were not part of those purchase prices there was no they were never appraised they were never included no one ever said in the testimony the record is clear that that no one was purchasing the archives they were purchasing the promotion business when those successive sales were coming the archives were sort of sitting on the sideline as a group but within that were concealed assets that had already passed in title so your claim is archives would give it were just given away no your honor they were they they were known and viewed as sort of an unprofitable at least the commercial part of the archives as arguments are still that they had been valued implicitly then in the sale of the company's well i'm a little i'm a little you have fused here's where i'm confused because you tell us you do we know that the companies were sold this or we know that there was an assignment so it presumably all of the intellectual property that you're concerned about here went with the companies when they were sold as are most companies were were were valued there was a value placed on the dollar value from which your clients receive some money but now you're telling me now you're telling me that that they were never separately valued so is your contention then that they that they really weren't valued when those companies were sold and so they were just sort of given to them later on no the archives were no the archives actually did not receive  to the archives until we see a sale to mr sagan in two thousand and two but there is testimony in the it mr rockwell the point person on the sale said we did not get the archives went along in the sale but they were not given a value in fixing the price now i understand what each of your honor's has asked for and i and i hope i want to reserve just a little bit for rebuttal and i'll try to address that i guess if i could was or what i and if you think you're  graham own personally owned these assets and her answer was to completely skip any analysis of legal ownership and i want to start with the copyrights we know from our very the very beginnings of our knowing anything about the copyright act the way you want to copyright is to create the actual work that is the owner of the copyright and we know bill graham did not create any of the poster our work from there the only way bill graham individually as opposed to bil the one hundred percent owner of all of the companies the only way bill graham individually could own those copyrights is if there was an assignment to him which we know does not exist or if there was a work for hire so our obligation here is to figure out whether or not under the work for hire doctrine as it's expressed in the statute the copyright act attributes ownership to bill graham individually and we know that that test is the instance and expense test the instance and expense test begins with the first one instance what is the impetus for the creation of the artwork the impetus for the creation of this artwork without dispute is to advertise concerts that was the business of bill graham presents those posters were not created to hang on the living room of mr graham's home they were created and we know this because of what they included there is artwork it has the name of the band that was going to perform the date of the performance and the place of the performance those ads were placed all over the city to promote concerts so the impetus for the creation and therefore the instance tests in this case all point to ownership of the company we have no burden on this issue and it's important for all of us to remember that as we have no burden as an element of their claims for both conversion and breach of fiduciary duty they must establish had these posters considered posters to be his personal property specially the ones that were left over after the promotion so what's your response to to the fact that there are declarations that he hired  that he paid the artist to produce them what's your response to whether or not that creates the trouble issue my response is and i believe the district court said it said it is that there is no question that there is evidence of a work for hire arrangement here but that doesn't answer the question the question is is it a work for hire where the employer for hire is bill graham the individual or the employer for hire is bill graham as the president and one hundred percent owner of these businesses and because these assets were created for the business the business is the owner under the instance test for the expense test it's even clear there is not a shred of evidence that bill graham personally ever paid a dollar to any poster copyright artist and what was troubling from the record is that we have known from the plaintiffs and known to the opponents of no from the beginning of this lawsuit that the instance and expense tessa's is at the crux of it and yet when we get to that what we have a summary judgment time is a declaration ambiguous at best and evasive at worst that graham paid for these poster paid these poster artists will graham who we know the person bill graham paid for them we don't know whether use corporate money or their use personal money and we didn't learn that until on the eve of summary judgment we are handed seven hundred pages of documents and surprise declarations from poster artists and mr graham's former wife  mclean was one of those poster art as and they submit these declarations ambiguously stating that graham paid for we had we have the right to take the deposition the district court gave us the right to belatedly take these depositions and every one of these witnesses showed up and testified that they were paid with company checks so here we are with the with the plaintiffs presenting to the district court evidence supposedly that bill graham the person individually paid while they are holding documents and information showing poster copyrights that are an issue there is no evidence that bill graham or anybody paid for them at all and again it's not our bird they have to come for every one of these posters they have to in our view come forward with evidence that bill graham the individual posters and they were done pro bono so he would still be part of this so we need them both it's not instance or expense it's instant and expense you have to create the impetus for their creation must be evidence or at least that inference can be drawn that it could not be for the company for those eight posters ok but the expense to us is where they fail they still have to come up with evidence and we aren't allowed to just speculate or assume he could have paid for them eight months later when he formed the cup corporation make those posters for me poster artist please and then eight months later in march of two thousand and start march of one nine hundred sixty seven when he forms the company then he pays from we don't know but again we don't have that burden and it only speaks to eight of the poster copyrights for the other we think it's one hundred seventy four because of that that was what was before the district court in the summary judgment and they say it's three hundred something because they tried the later after the hearing amend the record th motion for reconsideration was denied it is not been challenged here's what we don't even think there's anything at issue other than these one hundred seventy four but no matter how many posters there are for each and every one of them that's an issue it is their burden to put into evidence some some evidence that they were created at the expense of bill graham the individual and to the contrary i believe we actually meet the burden of proving that all of them were paid for by the company at least where there's evidence of any payment every payment is made by the company there's another point that i'd like to make and it deals with touches on the damages and a number of these other issues that relate to conversion under bill graham as well when we talk about this in our brief there was no specific bequest of any personal property to the plaintiffs and appellants here in other words they are not entitled and have no ownership or legal claim to any particular item of anything not one poster not piece of clothing not one anything what they are entitled to is twenty seven and a half percent of the estate you can't cut posters up into twenty seven and half percent pieces so the executor was with well within his discretion to decide as he did we know with respect to the scrapbooks the actual scrapbooks not not the poster books but the scrap books it has new had news clippings and articles and we know that all that was actually paid for by the company but nicholas and there and for that reason they are not entitled either in occur under a conversion claim or breach of fiduciary duty claim to say i want those copyrights i don't want the money for them which we know they got i want the copyrights i want the trademark i want the of was a transaction outside of the probate court the probate court the transaction that happened was simply the distribution of the shares of the companies and because those companies own those assets necessarily the assets of the company  copyrights and all of that were distributed to the propane proceedings were to determine who the assets and sell i don't know if this don't agree necessarily that it's a ministerial tool a fine assets that should have been determined by the probate court well at the time of the probate court proceedings and if there was a mistake in attributing ownership between the company and bill graham individually that is part of the litigation privilege that the ninth circuit on our bar and i slap motion already determined that not barred if it was never brought to the probate court the fraud if they can prove fraud and it's already been determined there was no fraud there's no fraud there's no fraud claim left in this case and so the privilege does stands up and and says oh my god what have we done here we've got an assignment we're now changing ownership of these assets and the responses there was no change in the ownership of the assets under the instance an expense test didn't green got it right in  and it's still right today those copyrights and those assets were owned by the company back then and they're owned by the company now unless there's any further questions i did promise my co counsel we were going to put time so on and we tell them that i'm sorry they please the court my name is michael elkan counsel for the p g a pelleas appellate seek to unwind the transaction occurring nearly a quarter of a century ago to recover assets that have been changed several times since these assets were ones that the appellant's declined to purchased africa receiving millions of dollars in return for selling their shares of companies for these that cover these very assets we think the district court decision on summary judgment in favor of our clients was correct this was the counsel ward counsel fees award the two arguments that we like to advance with respect to the merits appeal one that in fact there was no ownership interest by the  already been covered by counsel from mr klain also those arguments i would like to focus if i may on the innocent purchaser defense that was asserted and found in favor of our client at the district court level is as the court well knows a purchaser who takes title without knowledge of defects cannot be required to turn over the property and the record here is braf have any  material fact that our clients were aware of any improprieties any claimed improprieties and all the one exception where potentially a innocent purchaser can transaction can be upset is where the transaction is in effect void where the property is actually stolen which is not the case here you have the suit you have a color of authority of a fiduciary of a trust eighteen thousand one hundred thick covers situations like this where a someone is actually protected where they actually take title from the actual fiduciary self this is unlike the case that's been cited by the appellants of the strasburg case where you had someone who was not in executor or it was not an innocent purchaser defense that was asserted there there was no discussion to avoid versus board of will the deal  here was consummated one thousand nine hundred four by clay knows he was acting as a fiduciary and the assets changed hands many times i just want to comment briefly as if i could judge rawlinson on the assignment issue our view is that we believe it was extraneous for the assets the poster cop rights of the posters it issued traveled with the with the sale there was a determination was made it was impossible for any fiduciary to be a little account for everything in the estate with respect to the archives or literally hundreds of thousands of articles that have never been tory at all the reason why the assignment we submit frankly is extraneous if the court were to go down that road is that the purpose of the assignment is simply to put the world on notice as  one of the two sons the issue that they raise as well the so called the property must be exempt because it's personal to bill graham something that related to an interview conducted of our client on t v we submit that that really is a red herring the whole concept of whether something is personal or not is relevant with respect to whether it was exempt property that our client took from clear channel and if you take a look at  record site twelve two three four zero four one this is the retained assets or exemption language and the language actually reads items which bill sagan which one of the defendants here in owner of the  norton and a representative of the seller mutually agree in the reasonable judgment should not constitute an asset because such items are personal to individual employees or members of the bill graham family etc there there's been no allegation there is no proof there was  ever any agreement by mr sagan at all with regard to any sort of example property if i could just turn very briefly to the legal fees issue as the court well knows there's an abuse of discretion standard factors were identified and decided by the district court we don't think there's any question that the defense here for the interest of the copyright laws would norton did when it got these particular properties they were kept in cold storage boxes with poor temperature they were dusted off they were put in a climatized environment they were secure fully  and made available to the public on the various websites in a short our client made available artistic works that had been a bank basically languishing for a number of years the other side makes an issue of the fact that you have as here core facts that relate to all claims as the court well knows in a copyright infringement action there are two elements that have to be proved one is copyright ownership the second is copying of the copyright ownership issue all pertain to because number one miss raynor hand who took most of the depositions actually lives both in l a and in san francisco and so all of the collective travel expenses are less there were some travel from new york by one of the partners and the reason why it was considered to be high is because he happened to be traveling for the deposition at a peak travel times i believe it was in  thank you roger i would like to return because i do not like to leave one of your questions unanswered on damage there are disputed issues of fact on damage i believe all of you asked me what why how do we know whether or not they were compensated as the as that potentially travelled with the corporation the value of what was taken the value of what was paid those are disputed issues they would have been the subject of expert testimony which was in development at the time the summary judgment was her but we know that the assets the copyrights were there was an expert designated to testify about the value the copyrights lost in excess of two million dollars not to mention the potential exploitation the hundred sets there was really frankly that is part of the record he was an expert designated believing that that asset was worth more than nine million which far exceeds any percentage that could be argued they were compensated for if you consider their other valuable assets that they were selling and finally the poster scrapbooks the district court seemed to agree that those were the personal property of bill graham those were not deliberate and but but then said applying the wrong standard the wrong legal standard of conversion said that in absence of knowledge the that the conversion did not take place that is not the legal standard if you read the case that the district court cited and that this court called the quote to the district court's attention i believe in the earlier ninth circuit decision that states that knowledge is ordinarily not relevant it is a strict liability crime where you assert possession and control over the asset knowledge may be relevant for proving about that possession and control but that would be and i want to address a one other couple small issues the income and expense test your honor i think your honors i think that's the wrong lens through which to look at this although there are plenty of this feuded facts on that issue we've laid it out carefully in the briefing the linz is it's agreed it was a work for hire the question is who what happened was the wearing at the time that that it occurred there is no artist of the income and expense test becomes an issue if the artist is fighting with the the person who commissioned the work that's not happening here all the artists that testified to the majority said we've no problem bill graham owned the copyright so the issue and we've placed and he had copyright bill graham and registered in his name those creates sufficient presumption and certainly suspicion disputed issues of fact to suggest that he owned the asset at the time of his death it is not going to be the burden it should never have been the burden of plaintiff to prove what happened is we have a video camera that can go back to one thousand nine hundred sixty five and let's just put a window into every single