inc and boots enterprises inc your honour's let me if i may address the cross appeal first because i believe that if i'm in trouble on that one there's no need to address the appeal  it's our position that there are three undisputed facts which really drive the entire legal analysis on both peals first the photograph and issue was taken in  sale to all comers and third that there's no evidence of any renewal registration and we submit that those three facts which run disputed in the record so all the court needs to know to determine th taken at the session by selling them to look at life in new york times magazine section through globe photos to all comers he also said that he was quote fairly certain close quote the photograph was published at the time in sinatra photo of discuss these fairly well known in the editorial world hadn't been published on teen times closed and then of course there's the look publication with respect to the look publication we believe that ju apart from the show is illustrated publication the fact the delivery of the photograph to gloat for purposes of sale constitutes publication in a legal sense under american fighter graf the lad his looks like maybe two sixty one sixty one and i believe that's correct record recognizes the argument but my understanding that she found or she held the publication in a lot was authorized and it's our position that the district court's discussion and resolution of that issue was internally inconsistent because the district court based its denial of these on  declaration and the disparate court's conclusion that because mr stern did not know of the look publication that it came as a surprise to him that he was acting in subject of good faith  when he brought the lawsuit and it's our position that looking at the undisputed facts that apart from a look publication his own testimony indicates the place in the photograph with quote for times that he knew or had to know of the problem with the copyright because of the publication history of the photograph and having known that he could not have been in subject of good fa attempt to obtain the one thousand nine hundred six registration and that's laid out in the briefs let me speak a little bit about that registration as this record indicated mr stern attempted to support his claim of copyright b were manned and they were amended by inserting into section six day of the indication that some of those photographs were published before and six billy indicated new photographs and on the of the change to the registration it was clear that the registration only covered the new material that is the new photographs the old ones  authorities if the photograph that issue was one of the previously published photographs he said yes so it was clear from the record that the registration did not cover the photograph and issue the court relied on cooling systems for the principle that in the registration forward to rivet up work the underlying work preexisting material  the registration can operate a presumption of copyright in the underlying material and that case which is undisputed in the ninth circuit he's not it's not problematic it's settled law to the cooling systems case was to simply ignore it we've never heard from across the pellets why systems doesn't apply their argument that they made and then just record their argument that they made on appeal here is that the registration they say is a group registration even though it's clear from the spec being the registration that's totally to the contrary they say that the registration mistake that filling out section six hundred sixty is a mistake well there's no evidence of that anything it's clear that the registration was attempted as a group registration and what happened was the copyright office rejected that attempt and we developed evidence from the file of the cap with images of people that would appear to indicate that it was clear to mr stern's representatives they could not get a group registration they could not register that particular photograph because of the prior publication history with respect to the issue of illustrated you know he had no registration covering the photograph and i did a lot in light of the fact he couldn't say when the first registration was how could he ever believe he could prove his claim to copyright in just a word publication over and apart from the look publication you don't need to discuss the data declaration you don't need to discuss the application of that in its code section four of six and three and that's the single most show we believe or compel the word of attorneys obvious serve the remainder of my time aggressive first across the field if i might what the district court in this case was involved in a copyright and it did so based upon the admission into evidence of what we believe is incompetent to answer to the question do you have any reason to believe this publication was not authorized by new answer oh this is authorized by photos which is automatically authorized by me since i made them my agent and they would testimony of witnesses as to all kinds of matters as part of the evaluation of whether to accept or believe that testimony or to credit it we look to see whether that person had a basis for personal knowledge for the statements made and for the facts asserted in this particular case it was clear he was in paris at the time he had not known about the look magazine publication he had no basis of knowing that it was authorized he did not recall ever having been paid by globe on it but we had no documents establishing there was our globe authorized this then it's authorized by me because they're my agent is a statement from personal knowledge and therefore can't be credited against him as an admission for the answer rights to it globe authorized he certainly did but the but just as there is no evidence the globe didn't authorize it there is no evidence the globe did authorize glow doesn't exist anymore and has no records oh and the authorization given to look look doesn't exist anymore and has no record so in the absence of anything other than his statement deposition was authorized how could it possibly be a reasonable inference that it was an authorized well that's what we turned to the burtons well i'm not asking you to turn to any burtons i'm asking you based on everything that is in the summary judgment record is there any possible reasonable inference reasonable inference that the publication and look was on authorized i don't want to hear about burton's i want to know based on the facts in the summary judgment record lines honestly i don't know the answer to that i don't think that we can always assume that the law is abided by and and that all actions are in conformance with the law particularly he was receiving wrote the payments with respect to other licenses for other images that look faced for him in other places he has no knowledge or recollection of that placement would look if we have to recognize the circumstances of the event reasonable inference that the image was published without an authorization it is not unusual that that character is was that made groups of images the magazine would then select one or two on one and they were supposed to go back and negotiate and secure licenses it is not beyond the realm of of reasonable belief that there would be instances in which images would publish before licenses were secured or that they were mistakenly photos and whose entire living was made doing this would never notice it would also have been a very very large client who purchased lots and lots of different images from them and you tread lightly with the clients but there was no indication stern that the image had been published in one thousand fifty seven in look he didn't know about it he wasn't paid for it to his recollection he has no knowledge of it he scoured his records he couldn't find anything evidencing that it had been authorised he presented the evidence to the court in the following way i created the image no question about it it's copyrightable no question about it i gave it to globe certainly the mere placement with globe doesn't mean that it's available to the general to establish that this is they authorize general publication have the burden they believe that's their burden to come forward with actual evidence that it's an authorized general publication what do they give us they don't give us anything on the specifics where the globe authorized it to look they rely entirely on the david declaration which is incompetent this david while she was at look was not in a capacity where she would have known what the custom in practice was and certainly doesn't testify that the custom and practice was actually performed with respect to this particular kinds of action declaration is so way that it is to me to be admissible and even if it were allowed what it does is it creates a genuine issue of a material fact that should have been reserved for the jury to decide and could not be decided by the court in summary judgment the defendants did not come forward with evidence that you i want you to assume for a moment that the i know there's some question about this but i'd like you assume for the moment that the district court alternatively found that the end restricted placement with globe constituted general publication is that legally correct or incorrect in your view it's incorrect because american vita graph and the supreme court's decision american tobacco both established that the mere placement with an agent doesn't constitute making it there's no evidence of that in fact mr panzer made repeated reference to that and that's not what mr stern test i didn't say anything about all comers he talked about specific magazines and particular kinds of uses he also talked about uses  and there are uses that are permitted for little purposes one time publication only in print never to be reused which is the limit of publication it doesn't extend to the general public the opportunity to secure a copy to sell dispose of it to make a derivative from it or do anything else with it it's still maintains all of the elements of control and intend to maintain copyright ownership and in order in this industry and the photographic industry  where professional photographers are looking to license the images the value is retained by providing them sparingly limited licenses so they get maximum value once the image is generally available there is no interest in it public is a general publication of the look back to zing however it is not look magazines distribution that we're looking at we're looking at mr stern all that occurred here now i'm sorry what's that mr stern through glo not made generally available to time newsweek and every other publication and it's not available to all the television stations it is only available to look for a single one time printing period that is all that was permitted to look what  is not a sufficient publication to start the clock running for the need to renew copyright in order for the trigger for a renewal there has to be an authorized publication because almost always something is published in one format it's published as a book by one publisher or it's a photograph published in the national geographic but not also in the l a times i mean nothing would ever be generally published if we followed your logic it seems to me well there are very many instances where there is a general publication where photographs are we can go out there are photographs they're made generally available to all comers you can buy a poster size you're free to dispose of it you're free to do anything that you want with it it is available to the general public that is vastly different than when an author for example grants first north american serial rights to his particular article to be used in a particular magazine that's all he gave is a single printing office station for use in a single magazine going to its subscribers period no more couldn't use it on the web can't use it in other magazines can't make copies and hand them out on the street corner the only rights given are printed in that magazine once you think that the clock doesn't begin to run it is a limited publication it cannot begin the clock wrong that's clear the issue is not stand scrutiny because if i said there will be a blue moon tonight simply because i said it doesn't make it so if i have no basis for knowledge for that then why would you credit me w globe authorized appears to authorize it authorized if it did than i did then my agent had knowledge that but he doesn't have a basis for knowing the globe actually authorized it there is nothing in the record that shows that you had a basis for that how can we credit that against him that would be  i think i would be here the core of the courts to series of analytical but the core of the issue is whether or not that because that she did not  simply placing it would blow was a publication in fact is nothing has no support for it at all she simply i get five the arguments by the by the defendants and then she ultimately reached her own conclusion i think lucian was not based on the plaintiffs have the burden to show they asked their copyright was valid and subsisting to do that they have to show originality which they did they have to show proper copyright subject matter steps that the registration and as a derivative work registration did not cover the photograph because a cooling systems the plaintiffs were unable to come forward with evidence to show that they had a valid copyright for the photograph not being able to do that the burden never shifts to the defendants to come forward with what mr sony i believe erroneous lease terms i quote and if one looks at judge copyright they didn't do it because the registration doesn't cover the photograph and cooling systems doesn't let you infer copyright validity to the preexisting material from the registration for deriv work and it kicks in she said by the way if we assume that they have carried their burden in any event the defendants rebutted that presumption with evidence of the look position what you can with the photographs once you completed the session answer i pedalled them question what you mean you peddle them answer i sold them question who would you sell them to answer look back using life magazine new york times magazine section and all over europe globe photos had subsidiary agents in europe and also they sold in countries that had large interests in sinatra and obviously that would cover a lot of happy to respond in questions the court was wrong when it construed the copyright registration as a derivative work registration was nothing to rid of about it it was not a group registration it was a registration for collective work a collection of images that mr stern selected to include in a group it was not a claim for group registration which is a registration for once again which is all taken within the same time period these were going to just taken over different time some not even taken by him that he collected in a collective work systems is correct that we don't disagree but in a collective work the underlying works or original works that are part of the collection if they are by the same author as created the collection are entitled to the instructed we've already addressed those issues and we've indicated what we think is wrong about that even if we credited the they the declaration all that we then have is a head on contest between the two parties declaration was sufficient to show an authorised general public should have been we believe it was their burden we believe that they didn't carry it so we should have prevailed but if we don't prevail finished and have been reserved for the jury if there are other questions of you have your answer other questions but i have a comment that i'd like to make to both counsel and i'm speaking only for myself but i think the tone of the briefing on both sides to be very nasty and are i find that extremely unhelpful i'm sure that when you write your brief you're doing it because you believe that you're saying things in a way that will be the most convincing to the court in this briefing i become distracted and i lose focus on the issues that you're trying to get me to understand on the merits and i just command that thought to all of you for your future reference here on our apologies we certainly try to resist that but it was difficult