applying state contract law principles and the manner that's inconsistent with the copyright act and basic principles of copyright law the district court implicitly held that a copyright owner cannot withhold consent to use of a copyrighted aren't those plans necessary to some degree for repair models copyrights they don't have a right to keep the plans so that they can deal with issues that may arise regarding construction of the houses if they have rights to keep the original plans but that's not what they did they  used those plans created after it was that but i'm asking if you want what an injunction require them to return the original plans not the original plans so what would they have to return dispute if they go to court that's correct and there's have to have the original plans for phase one which are the plans and i'll just provide it but they also would have the derivative works the new plants the created from l g s so that's what they do they create new plant iraq's machine and xerox the points and hand them out and you want to copy fact i think i'm trying to figure out physically what you want physically we want the new plans that they created using l little attention it was a different name for our plan one of you tell me something about the thirty six hundred the way it looks to me from the record and i want you to educate me if i misunderstood is the deal was to reduce the thirty six hundred plus sixty dollars per unit clotted they started using the plans and they are they either offered or paid i forget which sixty dollars per unit plod correct and that's what you said give us their four plans give us thirty six hundred times for correct they said oh we'll pay the additional thirty six hundred once but not four times ab but they never actually seen a check for the thirty six hundred if i got that right yes with one exception we we we dispute that they ever tender the thirty six hundred we tendered the sixty dollars per unit plot ins well tendered is the legal word it's not really a factual word what physically happened they sense a letter they sent a letter saying they would pay thirty six hundred saying that we will pay sixty dollars per unit plotter and the for sixty dollars per times one hundred eighty one and then we wrote back and said if you also a little thirty six hundred dollars times four and then a check for sixty dollars times what times one hundred eighty one one eighty one and we demanded thirty six hundred times for if you look at your fifty five and fifty six that's the letter transmitting sixty dollars time hundred eighty one and then but they never seem to check either thirty six hundred or thirty six hundred times for the threat said they'd be willing to pay thirty six six hundred times for plus sixty dollars per unit to reuse the plans i believe so to remember a letter like that in the record i believe so why isn't that what are written permission to use the plans so long as opposition but would have given authorization upon payment of the full review but it's our position that all just was entitle to withhold permission to reuse the plans and its discretion thought maybe this was the architect association defending it's a on a standard form that's not it well they haven't not directly but my client is an architect and he believes that architects have been at the mercy of home builders basically doing whatever they want with copyrighted architectural plans and he wants to make a stand and he has under the copyright act in the contract he has the absolute right to withhold his consent to re protect the author and hence you rely on states canons of contractual interpretation only to the extent that such rules do not interfere with the purpose of the copyright act and in that case the ninth circuit cited the fifth circuit concordia would be willing to do that the reason why that did not happen is because there's a lot there's an element of this that's a little bit more than just the dispute over the thirty six hundred dollars and how that's calculated and that is in addition to the thirty six fact that i'll give you permission to use these drawings if you pay me the working for an additional fourteen thousand four hundred dollars which is thirty six hundred times for and here's the critical part you pay me that you shall receive permission to proceed per the licensing agreement dated july ninth two thousand and three now what has happened in this particular case is we originally had a licensing agreement dated two thousand and one and it had a critical provision in it that was important to concordia homes that licensing agreement under which our reclined one was built and under which we wanted to reuse the plans for our we're going to said that l g s architects could not sell these plans or distribute them to any other developer without our permission and of course that's important porting the concordia because we don't want to see google because of our house the house is being built all over los vegas to compete with us and when we informed accept this new term capital i have two questions about this my first one relates to what you just said i don't really see why it is that the architects have the developers over a barrel or the architecture in a position to sabotage one hundred fifty million dollars development by holding up the developer for arguably more than the i get out reading this contract with its architecture so chief you could just say well good bye then we'll hire another architect and for a negligible amount of money you've got new architect new plants and you proceed with your development understand your point your honor but i don't think that it's quite that simple why not because in order frankly just reusing the art we're going one drawings  much cheaper if you wanted to bring in a completely and talk a much cheaper like twelve thousand dollars as opposed to eighteen thousand dollars on one hundred fifty million dollars development and it's not well let me back up for a moment this is only about the twelve million dollars development but also when you start from scratch you've got the architecture you've got the engineering fees that have to go into that you have to run it through planned check with accounting all over again you have to run it through plan check again with the municipality that's in charge of your particular development in the grand scheme of one hundred eleven million dollars development yes you're probably still talking about less than one hundred thousand dollars but that's much more than the fifteen sixteen thousand dollars that the architect is going to choose alone which brings up the second point that i wanted to bring last year maybe one hundred grand if you fire them to be honest with you your honor that's sort of a guess on my part there's nothing on the record and i really haven't looked at that particular goddamn by that i'm just trying to get an idea of the order of magnitude now my my second question  i was thinking why other than the money would an architect care about the use of the plans and i could think of a couple of things one  tacky and that it could hurt an architect to be associated with a house that is too reproduced and the second thing that occurred to me is we had some cracked housing built in my town that they used to plan that had been very successful for a moderate price with very nice houses low prices good houses it had been successful and the state of washington and i think it had been successful in anchorage and they used above ground propane tanks with pipes into the house about fifteen feet long to get the heat it well into their banks it goes to fifty sixty below zero and the propane liquefies in the pipe in the house reasons up in the pipes contract clearly provides and the practice between these two entities was that they were going to reproduce these houses over and over again that's the type of houses that these are we're talking about fifteen hundred eighteen hundred square foot homes which in t las vegas area is basically an entry level home in they were meant to be reproduced over and over over and over through neighborhoods throughout neighborhoods throughout the neighborhood there's nothing particularly special about these particular homes as look you're buying an l g s architect home or you're buying a home that was part of designed by a particular architect at this price level and the market that can cordy was after for these particular homes as you're buying a concordia home so if people look out and see a vast ocean of concordia homes that look exactly alike going down the street the ticky tacky there's that sort of thing that's really going to be can corti as a problem in marketing and salt selling them as opposed to the architecture problem one thing that i would like to point out is that there are no separate plans for arbor of the line too there is nothing in the record that supports this and frankly that's the first time that i've heard that particular argument what concordia did is they took the exact plans for our bergland one and use them an arbor going to there was no reengineering there was no redesign there were no separate elevations or anything along those lines you're saying you have nothing in return except the original plan see exactly your honor now granted in some circumstances it's possible that you would be changing those drawings for a new neighborhood because the codes may have changed or if in terms of getting your permit thing and that sort of thing the county or the sever the out political and the municipality may impose upon you new restrictions which would require changing the drawings but that simply didn't happen here and there's no support in the record whatsoever for that and the fact we tap to send back those drawings that or entitle to at the very least on the arbuckle on one if they get their injunction it's a bond of one hundred thousand dollars or so adequate to secure the developer against the risk that they shouldn't get the interaction for them to you know now it's all over so that well it's all over your eyes that razors and we aren't going to be reusing these are these plans and and i would also expect if we go back to the trial court if they get their injunction and there are i would expect them to say that in terms of the injunction they don't have to post a vaughn they would argue that the bond is going to be the minim because we've expressed no desire whatsoever to reuse these plans in the neighborhoods already built so really we aren't in jeopardy at all in granting the injunction there's one other aspect about the well is this will come down to then whether or not the concordia ever tendered the full fee for the additional houses beyond the first meeting that's a factual dispute i mean and get your graham's affidavit the president can courtier she they basically didn't respond to us and so fundamentally what is your position with respect to the agreement itself that the agreement fully contemplated the full one hundred eighty one houses or the agreement contemplated additional if you look at their couple places in the record for that tentatively described as a single family detached development consisting of eighty single homes they described it as being and it was initially arbuckle and one was approximately eighty homes let's just tentative they are clearly contemplating that there are going to be and we're here to consider whether or not they were entitled to do that within the language of this document or you're here your honor to decide whether the trial court refused its discretion in denying the preliminary injun n but one of the issues of course is whether the present probability of success on the merits so we get right to it and that's why i'm focusing on this language why should we just read this to mean we can let you use the plans or not it's totally up to us but if we do what we like you reuse them we won't be haggling with you about the price here's the price that's an alternative reading your honor and i can see that there is basis in the language for that i think given the way that these contracts operate and with particularly with the one nine hundred ninety eight contract in the parkers contract it's contemplated that korea had a right to reuse those plans on payment i w parties provided for negotiated a sentence that said that the architect is required to grant permission for reuse of the g neglects to mention is that in calculating the thirty six hundred dollars it's not just an issue of thirty six hundred times four but when they came back to us asking for the thirty six hundred times for they were trying  t r seven deals with the new plan through the original contract was two plans and then partway through concordia added another plan that they called plans three i could see where if you sent them a check for thirty six hundred plus times the number of units and they sent you back a letter not quarreling at all with the suitability of the plans through the new fees or the development and just paying thirty six hundred wasn't good enough they want to thirty six hundred times two times four times whatever conceivably a court might enjoy nam commanding them to give permission yes but that didn't happen and i don't understand your point your honor i mean that didn't happen herb that the court didn't do that or that we we never made that kind of tender correct your honor i mean we didn't formally tender a particular check the first time we did it and it was admittedly a mistake we only did the eight unit now they demanded too much you tender too little and that's what happened your honor the second amendment well in person the first amendment which is our seven we paid for that and that's like knowledge and then asking our sex is plan one of three which was never intended to be an arbor glenn one that was designed specifically for our going to and we also paid for all the architectural work and all the engineering on that particular plan so those are two of the plans so in addition to the additional certain very terms that they wanted to impose on us they wanted to charge they wanted to charge us all over again for plan three and plan one of th in conclusion it's basically running to get respectfully remind the court again that this is an abuse of discretion standard and that the facts the court the trial court found that they just with building these units don't do that that's copyright infringement unless we resolve this dispute and they could have gone to court and they could have gotten an order that said l d s you're wrong are allowed to proceed they didn't they're basically issue of the no separate plans there's nothing in the record this is one way or the other way whether there were any separate plans for new plans or are going to that's actually the first i've heard that there are no separate plans where nothing was modified but if that's the case  should still be enjoined from using their original plans for the new units because that clearly was not contemplated within the the original contract i think accounts of your time has expired and the case just argued will be submitted for decision and the court will