in the context for the two and one see argument or issue is that it was lobbed in at the end of the trial to excuse sixteen of the infringements or actually are twenty four uses of mr jarvis as photographs the court found that some of them were not registered and therefore not dealt with in that respect but these these collage ads we contend are not subject to two a one c privileged for four different and independent reasons first of all there was a contract under which the license to use these didn't just expire at a certain moment in time and the print outs were put presented on the website after that so that was just one of them but we would even have to go to the collected works the the license is a license to use it in the collective work rather than a license to use it for some temporal period well let me ask you the question a difference way if mr jarvis had had a similar contract with national geographic that limited it to a year which you are going to be the same if if his picture is in an old issue of the magazine had been collected along with all the other issues of the magazine and license expiration also that the works as presented on the web were a public display that they were not the print ads are not in fact collective works but as the terms are used under the one nine hundred seventy six copyright act that they are derivative works and finally the issue that the national geographic faulkner and sea has dealt with whether or not there revisions we contend that they are not revisions merely because they are used electronically that they are they are presented as part of other work really deals with whether if you put the ads on the website and then you can access the individual components of the collective but that is not a revision because you are presenting each of these works outside the context of the way that they have been presented in the original collective work in this instance what we're saying is that that these collective works are being presented as part of a larger work in other words you're not merely presenting the the press had again in electronic form but you're presenting a web site of cd rom allow people to search through the cd pull out individual articles or individual pictures if it was i'm trying to understand how that's different from the factory team archive on the way that also contains mr jarvis well i'd like to address each of these four issues and i can begin with the distinction between a derivative work and a collective work drafted a collective work is merely a collection of individual works which are presented as an anthology or a periodical a derivative work is something that recasts the original work or transforms that makes it into something else and it's important i think to remember that here when we're talking about the jarvis w we're talking about individual slides individual film transparencies which were given to k to choose units advertisements ok to made a poster which  transforms those individual images from transparencies to two prints some of which are in a different form some are in a different shade the sepia tone but the posters the print outs themselves were intended as one individual work they were tear sheets from magazines which could be used as posters and therefore i think more fairly meet the definition of a derivative work rather than a collective work which even though both of you original be authorized use placate two of the print and they created this part of a collage of a poster which some individual work of that is the work in your argument is that then that is time limited and i say that use and then when they do then they take th only provides this limited privilege of copying and distributed distributing for collective works not for derivative works to a one c limited to collecting for this and that's why the issue is important the distinction between derivative and collective works ok so where does collective work come into the picture here what is the collective in putting the images in the poster they were transformed into something outs in the national geographic you might have a single photograph and we don't have to decide here today whether changing it from jarvis you may use my images but only for one year so let's i understand you have a separate temporal argument and i don't want to deal with that yet i'm still trying to understand the difference between collective and yes so you're saying that even if even assuming to one seat does apply doesn't include the right to publicly display yes plainer to me i mean my point was that individual who is using it much like they would use of book rather than a publicly public display as that is described can the thirty first be explained because national geographic employs the photographer you had taken one of those images which i assume they did and used it as an advertisement in the scheme wouldn't that be a public display i don't believe that it would be the individual image would be viewed by an individual when he opened here she opened the magazine so it would not it would be a display but the distinction is whether it is a public public display of putting it on the web well to display a work is to show a copy of it to someone so with each individual magazine you are sure you may show a copy of it to someone either directly or by means of a film slighted television image but to display it publicly is to communicate it to the public by means of a device or process whether member members of the public are capable of receiving the display in the same place or in separate places and at the same time or different times that's the definition of so the copyright act makes a distinction between display which would be the magazine and public display which could be on television on the well or something such as that and indeed in  subject in puget sound financial and you know search which i submitted recently the court held that that sending repeated delivery of a particular form at contract terms i regift twenty eight j a letter in the case and the concern i have is really i think a proof question and that is given the fact that he can't remember and doesn't have records of which images were supplied from which shoots how was he going to be able to prove that he had a course of dealing for a particular image prior to the entry of the two written contracts that the which he speaks damages to day being able to tie it as a matter of proof back to that time period before he had a written contract so your argument is those contractors the first transaction that he had with k two was the delivery memo and an invoice only ok let's take that transaction as i understand the record company maybe i misunderstood but as i understand the record the district court found that because of proof problems you just didn't keep very good records like gas and k two kept even worse no one can figure out which images were supplied from which shewed and which are missing but all of the images were covered by delivery memos some where that was the only term delivery was made that there was an inventory and there was an acknowledgement of receipt and send it back right away or something like that on there you know there were no receipts to that was the if you accept these flights on this delivery you're accepting the terms that the delivering them i mean it's the same argument that when you tear the wrapper on on a cd from days before the parties it actually entered into a written contract well this sequence the district court did find that the written contracts were fully integrated and what i feel you are doing my understanding correctly is we should still consider the terms of the delivery of that mo's as a course of trade or u c h to modify the terms or add supplement i guess would be the terms of the written contract and for several reasons contract to do some shoes and he provided some images for those shoes and it seems logical to me after reading your twenty jay said mission to find that you could find a course of dealing with regard to the images that were supplied during that period of time but now the problem you've got is a proof problem he can't say which images arose from that particular shooting in fact well there were two deliveries prior to entry into the first photographic arrangement and and each of those put k two on notice that the fifteen hundred dollar term was an industry standard ok but now you're back to the argument that you're that you're pressing on made and that provides that it's complete as to the subject matter of the terms and then the delivery memos continue and there are i believe at three deliveries after that each of which also includes the delivery memo and then there is the second photographic arrangement and some three or four delivery memos be what would what would relief to be that we would graph there would be twenty four additional infringements today and those additional infringement some were first infringed subsequent to the registrations and we've identified a third registration in the record that was perhaps inadvertently and neglected so what would be appropriate court and judge stilly has included in the his decision many factors many findings that relate to issues of how you would make that determination so i don't believe there would be a new trial but an the court my name is shannon mcdougald i was the lead trial lawyer i'm also the lead lawyer on the appeal along with my colleague ryan the briars in the court who was by polk county jail a trial i will definitely not tell the court this first cut to the chase and the chase is what is a collective work and the statute tells us quite clearly it's a work by two or more individual authors photographers submitted joined in a collective work i  will tell you folks as we sit here today and we look at that image the collage that belongs to k two that's a collective work as the appellant said in their own brief the collage advertisements as counsel points out the images have been modified in terms of their size that they're no longer just a column five by six prints or whatever size they were and now some of them are t color ring is different that are superimposed on a poster i mean why isn't this more like the case involving the tiles that were sold with individual not raised at the lower court raise for the first time on appeal i want to look at the end it's that is the one in the exhibit the court has seen the image there and the image on the web are the same the differences of course in size and there is the same image that was used in agony means the same image on the web on the web the difference would of course be that it is smaller you know so your position is different we're looking to have as the original when it was first moved from the print onto the website it was what still a collective work when it went from the magazines when it went from the original collage in k to special to the magazine to use in the web for k two it's still a simple single collective work ok so the you're right to do that depends on whether you have the right to take the next step that's the temporal limitation o format that was now it would have to be justified as it were the sec or and some ways your honor the issue is for that are related issue the transformation has to be substantive as you know the copyright act itself is media neutral the fact medium neutral that is the fact that it moves from print to the computer to nag is in doesn't matter the issue is whether the magazine you see it on the web is the exact same image is that it's right i mean let's take the factory team cotton is that how it was originally presented when it was used in advertising with all of those images all the images are together as used in advertising and all the images are not my question how i felt my question is i mean aren't these a collection of individual and as opposed soon better in a larger presentation the answer is when the advertisement was used in the magazines when it was used on the web there were always surrounding materials in the magazine there were other ads other articles on the web when you access it on the web you will see the k to surround information that is to local at the bottom that's his website you're on but it's like the image and remember under two a one c the the gutter theory that you know the break in the heat so that's what why i'm wondering about the extent that they had the introduction with the where the images could be manipulated i think they came up in the images and two presentations the record at the lower court was clear and let's talk a little bit about the differences between to seen faulkner and greenberg when we look at those cases greenberg decided by eleventh circuit three weeks before the scene easy issued by the supreme court one of the things that the court didn't like was the morphing of images that is you took someone's image you could morph it you could change it into seemingly the supreme court didn't like the idea that the copyright protected for the author was being violated not because it was being used in a collective work but because when you went to lexis nexis something all its lawyers know about you could actually pull the individual article the record in this case those two things didn't happen you couldn't pull images off the web individually from the collective work that's not the record in the lower case here you also didn't have morphing the image you see there originally authorized and also in the archives remember we're talking about archives of k two advertisements right the archives are the exact same image that you have there so so if i went to a magazine or whatever or whatever said that having information accessible on the web constitutes a public display for purposes of the collective work privilege sure we'd like to be cutting nerves so nobody has we recognize that whenever you have a collective work with the exception of some limited areas they are always subject to an ultimate visual depiction and what the appellant is arguing here is that the distribution of any collective work on the web would not be allowed the privilege would not be accessible to this international technology why because they're arguing that merely giving the public access to information the ability to access the data is a public display that's not right that's not how the copyright act reads there is no one who can walk by and say they saw this image being displayed but there are people who can if i have a computer if i access their website if i went to the archive i could download distribute we know that from the napster case that image to my computer again from a public display display standpoint in the act does access on a web constitute a public display we would argue it does not the fact that you have a visual depiction of an image ultimately downloaded to your computer again we would argue that's not a public display it's merely access what is the internet was there a public display when they were originally printed and with women in my view i would argue that there is a public display of magazines sitting on the newsstand at pike place market that's a public display of the image but of course the image of the cover or the image of the content of the content i would argue the image certainly of the cover and i think you could argue that the contents a your computer on you've got to go to the web you got to access the key to site at the site remember these were not the cover page you then go to archives within the archive if you do a search looking for that pistol are looking for the key to factory team limitations on the license to use that particular image and less there is a restriction on use of an image in a collective work also so the it was ambiguous the terminology was ambiguous the terminology in those contracts is there a limitation for the collective work use of those images i would submit to you at the trial court level there was no such restriction when judges really reviewed the issue he had that information in front of  the usage provision of the contract it's three when it talks about electronically for the web so as to market their business that is that the relevant portion of the contract that addresses what you  appellant that issue was not addressed but let me cut an important point and that is the contracts judge silly made a determination that they were fully integrated under washington law whether a contract a finding of fact it's clear error that silly made that determination that's important because once we have integrated agreements any modification of those agreements under the u c c adopted in washington all nine the modification has to be a signed writing by both parties here that never occurred in fact at the trial court level there was no evidence on the cape two side of t two having in its possession the actual delivering on those they didn't have that mr jarvis also couldn't produce them that he had produced a benchmark ten his advertising agency your honor if i have thirty seconds on legend amazon looked over one issue of damages you know judd's really had available to him for the three areas of damages at the trial level not merely the examination of the parties in the documents but he also got to examine them exactly regarding the value of the images and what he used as opposed to what appellate suggests to the court wasn't worldly free wasn't rights managed it was a compilation of all the information he received concerning the value and the damage figure he chose for the infringements in fact turned out to be three times higher than the average copyright licenses that mr jarvis and his company received for their images who the credit used damages mr jarvis and his expert both testified it would be speculation they couldn't identify any actual damage yet the court gave them a damage award as to the value of the last images again when they walked through all the evidence at the trial court level jack staley based on his findings of fact and law made a determination as to the value and  faulkner unlike greenberg we actually had a trial here they weren't decided on summary judgment the parties had their day in court what's your response to my question to miss hender it's about her twenty eight day letter and how we ought to apply if at all the washington cases on the images the written agree that my answer your honor would be that we don't apply those cases because philly in fact determined that some of the pre contract images were incorporated in the first two thousand contract but the problem is i am i wrong in my questions of this and it's that we don't know which images are l very briefly the collective work aspect a copy of the one nine hundred seventy six copyright act is unbundled the rights that are available to every copyright on the owner of a contribution  the copyright invests in that author and so because of the unbundling him because he is the owner he has the right to transfer to someone else some rights so so there are rights to use the images for any purposes including electronically on the web expired at the end of one year and the presumption that is available under to a one c is only in the absence of an express transfer of the copyright or any of the rights under it so the owner has the right to transfer what he will and the presumption only arises in the absence of some express transfer secondly on the question of how like display well i think i'll hold on that i think that public licensing of an image from mr jarvis to k two was an image referenced in the decision it was four hundred dollars plus and by crane in the bike frame it was somewhere between four hundred nine hundred dollars so the license for one image was thirteen hundred to eight hundred dollars which is the only evidence of how mr jarvis was licensing his work for the book all right