the court please to begin here for basic propositions that really cut through all of the briefing in this case and give the court the basis for deciding almost everything that used to be decided for basic propositions number one you can't release someone else's claims on the two thousand and nine to two thousand and twelve uses of my client's photographs by the n f l before there was even arguably any since issued from the associated press those are not a p s infringement claims to release that status number to whatever discretion a p may have t issue non royalty bearing which is to say free use licenses if any that discretion it's not unfettered a p s own words indeed establish it's not unfettered it's the fish off cakes you take their admissions their lies their self dealing their so called efforts not to mention playing it's reasonable expectations that's a good faith claim but what about the number of languages section four of the individual agreements including so glazes  section four grants the associated press broad usage rights and rights section five point one provides in exchange for those rights a people pay royalties and now i'm shifting over towards the expressed breach of contract which is a little bit different from the unfettered discretion question on the expressed breach of contract arguments which is really the heart of the case did plaintiffs ever agree that a p could just give away their photographs what you find in section five point one it provides for royalty bearing sales of individual photos qualified event photo sales it provides for free use i'm sorry and also so individual photo sales it provides for bulk rate sales it provides for free use for thumbnails free used for a p and its own marketing efforts and a ban on subscriptions with the basic license  that your clients get is expressed in terms of a percentage of what a p gets it is your honor except for those those of the clients who have a twenty five dollar minimum so they may have a twenty five dollar claim  for a photo but even those i'm not sure that they have an interesting depiction of what kind of photos count but i'm not i'm not sure i'm seeing where the fact that a p has to pay royalty in certain circumstances that is mostly in terms of a percentage of what they get requires a p to get something i think that's exactly the issue your honor is e p required to get something and now a piece approach to this contract is that these criteria these elements of a royalty bearing sale a qualified event photo sale which include things like collector cash make individual photo sales or for twenty five dollars you'd still be making the same claim wouldn't you that necessarily your honor i think there's a there's a substantial difference between i mean if they'd offered it for a nickel per use we'd have twenty five dollars you're right that would violate that wouldn't be then you wouldn't have this issue about free complimentary whatevers it would just be a question of where they are parading in good faith would there i think there are two separate issues here that we're crossing back and forth over  and i'm trying to be a little more precise so on the provision on section five point one the nickel example they have to pay the minimum royalty if they want to sell the club the photographs for a nickel they have to pay the minim l doesn't have to pay anything because the n f l would have a valid license isn't that the the situation in that situation if they if they're charging them and there's another problem here that we should not that should not get lost which is that this is a discount subscription plan what they've done is they put all of e p own photos all of plaintiffs photos contributor photos there's a few other categories you can see these set out in the licenses that they pushed into the record here they're putting all of those in front of the n f l in saying take your pick whenever you want as many as you wants long term issues like netfli correct except that they're not getting any cash directly for the use of our sale of our photographs what they've done instead is set up this framework where they get the n f l license they make a mints on being able to sell our on the pleadings we don't know for sure what we know is to maintain control of the n f l license which requires them to undertake point a few birds they're undertaking there devoting staff they're working through the archives they're providing a photo store they're providing a lot of services in exchange for the rights to take a piece of every photo sale sixty percent of every sale they get to keep and in exchange for that right for having a stranglehold we never agree and i think that's a very important thing about this case is we've negotiated for complimentary use for free news for the n f l four times i've not sure when they're sold to the hartford  photographs taken by your clients yes and hartford current a p for a portion of that goes to the photographers well that was negotiated writes a portion that goes a p and what i was trying to get at is that they are collecting revenues on the backs of the contributors photo sales you're saying it's a ploy pleading to think that if a p is negotiating how much are we going to pay the n f l for the privilege of having this contract with them right because the basic money flows from the n f l but when they're negotiating how much it certainly plausible to think that if they can give away your client rights for free to the n f l and that's something the n f l wants that a p would have to pay less and is thereby enriched by not having to pay more dollars out of their pockets but by giving the n f l something it wants from you guys exactly that's the essence and the it seems to me you know i understand there are reasons why you want to be able to say the contract is ambiguous about zero based things because that lets you get in the evidence of the extrinsic fact that in the negotiations your clients refused that very demand but essentially whether it's a nickel or whether it's free since if they do have the right to give complimentary licenses and i would think they would because that would be circumstances in which it might be in your interest as well to make a deal to give a loss leader to some particular agency maybe it's even in the air in your client's interest to do  the n f l because the n f l is after all controlling their access your clients access to things but the question is is the a p acting in good faith when it gives a complementary license in a negotiation for which they're not really having to pay very if you work through the terms you can see there's nothing in there the way judge suite approach this is there's no bar on giving for us i would say there's no approval we both have legitimate arguments for an admission i think ours is better if you parse the terms of what's actually provided that thank you for what a p did you know in two thousand and nine we tried to negotiate this we tried to negotiate for free use because it was an issue with getty we knew the n f l wanted it and so we said when e p gets the license in two thousand  let's talk about the terms of complimentary use for the n f l and a p says no we don't want it because we're being required to give the n f l r a p own photos for free we want to make up the money on the backs of yours we don't want it three years that how does that affect the way if you knew it at the time and signed the individual photographers agreements your eyes were open we knew that they weren't going to give this usage and that it wasn't provided for in the contract we proposed language to put it into the contract to negotiate over the terms of it and they didn't want to negotiate this it's not in the contract we don't want it and that's the other factor here your honor is the have repeatedly shown in their words and deeds that this was not part of the contract and to be very clear nobody has signed a new version of the agreement in two thousand and twelve when the infringements came to light we approached you so see the press and what is a piece a about this issue these say let's negotiate for that right they tell plaintiffs boehm who had signed the two thousand and nine version yet signed this contributor agreement but just so you know we're going to negotiate a new on because the n f l is dead now demanding free use we have to give it to him we've got to figure it out they spent four months secure the rights to give free use this is what they're telling the n f l in two thousand and twelve so they're telling everybody we need to acquire this right we don't have it yet this is exactly what happens in fish off and i ask you about the fraud claim because  my question is where's the falls for presentation where's the reliance to actually warrant a front line share your honor so that the fraud claim is based principally on the misrepresentations in two thousand and nine because again there was no new agreement signed in two thousand and twelve they spent four months negotiating for the new agreement to get this right they didn't already have and they come down they finally get sick of the go shading and say here it is opt in opt out we anyway between the n f l the language right it did now there are a couple problems with that though your honor to be clear in that we haven't talked about this but the retroactive part of that license is completely invalid under davis now we have i  mean setting aside the agreement that was the first thing you said was it you're not allowed to give away accrued rights that belong to the copyright holder for whatever infringements there had been and a retroactive license is effectively  trying to compromise or surrender claims that already existed because there was not if if there was not a license at the time right now and that is prior to any question about i mean even prior to good faith prior to the breach of contract for the core infringement claims in this case against the replay and against n f l it we don't need to worry about the agreement that there is no there is no license these are just unlicensed uses now for the the n what happens so what happens is when these infringements come to light in early two thousand and twelve a p secretly negotiates this retroactive license and under davis trying davis says we hold that a license for simon copyright can only act respect with the n f l which are part of this record to pay the n f l a minimum royalty of over a million dollars as of two thousand and nine and that has doubled each year up through today have been one hundred thousand dollars it could've been a million three right it was a contract that was put out for bid the n f l said we don't then i understand but whatever the amount is the amount goes up or down or the amount only goes up there is a minimum royalty that goes up every year under these three com i get that but that was set in terms of a bargain between a p and the n f l gets around it could have been set otherwise couldn't set lower could've been set fire it there there there really was no negotiation these were the terms put to a p by the n f l when the contract was put out for bid which was it was done three times this is not negotiated in the same sense that the contracts with the photographers were what the restriction on realty bearing licenses or a restriction on retroactive vs prospective licensing and the principle that this court said in boozy versus fox and most recently he also has the tug refers who work for them on contract and they are under the same situation they have to let the n f l use those photos for free a p gets no advantage here whatsoever over the plane of photographers i mean that needs to be quite clear there is no secret money being made here the contracts say what they say if a p doesn't sell royalty bearing licenses it is this is a substantial money loser for a p with respect to the copyright issue as we have said the plaintiffs in their second amended complaint knowledge that from the day they upload signed their agreements and uploaded their photographs the a p imaging system a p knowingly allowed the n f l to use and facilitated the use that is the language of prospective licensing a p having these broad license rights and granting a non exclusive license that does not have to be in writing that's it they basically admitted their way out of the davis vs blige issue and it's a basis on which the court can affirm without ever having to reach the weeds of the substantial split that exists in the district court but if the court does address that it's clearly the case as for district judges including judge sweet ruled the davis first has blige doesn't apply where you don't have a colon or that doesn't consent we have plaintiffs who are so loners who did consent to and did not ask for restrictive language and the language clearly permits a p to grant royalty free licenses and it clearly permits it to grant licenses that cover any period in which a p itself holds a license which would certainly include this two thousand nine to two thousand and twelve period the contract is not ambiguous it contains all the necessary terms and there was no the district court was correct in not being distracted by ect efforts to bring in parole evidence particularly in a contract where there was a merger clause with respect to the question of good faith your honor i hope i have addressed that a p had every motivation to sell licenses in fact the plaintiffs acknowledged in their second amended complaint that the only and indeed that got a non royalty bearing license was the n f l the plaintiffs themselves had made well over a million dollars as of two thousand and fourteen and they've made much more they each had contracts that allow them to cancel on thirty days notice and none of them ever exercise this and there are more than two dozen other photographers also independent contractors with the same kind of contract who did not suit i think the point simply is that the district court considered at great length and with great care each of the arguments made by the plaintiff with respect to contract and copyright appropriately rejected them in the court should have for  may please the court geoffrey michigan for the n f l defendants and with the courts commission i would like to devote only a minute or two to the copyright claims against the n f l and spend the rest of my time on the and i trust issues under copyright law and authorized use of copyrighted material cannot give rise to a claim of infringement and the complaint here alleges and there really is no disagreement at all that a p authorized every use of these photographs made by the l now we understand the photographer say they should have been paid a royalty by a p for that use but that is a question only of contract between a p and the photographers as to that issue the n f l is on the sidelines were not involved however that contract dispute may be result whether or not a p should have paid royalties to the photographers for the uses made by the n f l for editorial and marketing purposes our uses were authorized and because of that the copyright claim does not lie against the n f l as to the antitrust claims we haven't heard anything about that yet there are two categories of agreements that are attacked as and i trust violations first is the agreement we believe judge suite got this exactly right the end i trust claims here are our deficient as a matter of law on many many grounds let me to start with two basic and i trust efficiencies that cut across both categories of agreements that are attacked first the absence of a plausible allegation of the of and i trust the injury and second the absence of a plausible allegation of a relevant market now and i trust injury is a necessary element of any section one claim it's an antitrust cliche that the and i trust laws are designed to protect competition not competitors and so to avoid dismissal and trust complaint must allege sufficient facts to show an injury to competition in a relevant market not just a personal economic loss here the alleged injury is nonpayment of royalties under a contract that is not and i trust injury there's just no impact on this that's correct your own personal we lost money on a contract personal contract between the photographers and a p that may be true that may not be true it has nothing to do with competitive conditions in a relevant market and let me turn to that question how relevant market proposed market under the antitrust laws is not plausible if it fails to include all reasonable substitutes for the product at issue here plain to say the product issue is i'm quoting them commercial licensing of n f l related stock photographs so plaintiffs are proposing a single brand market confined only to n f l related photos single brands are almost never sufficient to constitute a legally cognizable market under the antitrust laws plaintiffs say here that the n f l photos ought to be considered a market unto themselves because as they put it the n f l is the most popular and lucrative professional sports league in the united states that may be true but is not a sufficient allegation of a relevant market the complaint here contains no facts to support the conclusion that photographs of n f l games are so unique  commercial sponsors for advertising purposes that those sponsors would not find the photographs of at least the other sports to be reasonable substitutes if there were an increase in the in the price of l photos so to illustrate that if a commercial sponsor like general motors wanted to advertise cars to people in new york city and its first choice was to use photos of of n f l giants games let's say  complaint asserts no facts as to why if the price of photos of giants games became too expensive general motors could not reasonably charge the photographs of yankee games that were nixed games or rangers games to advertise  products to potential customers in fact claim to say that they themselves they allege in the complaint they take photographs of other sports for the very same purpose of selling them to the same commercial advertisers and i think it's just really a matter of common experience and goes to plausibility of the market that commercial sponsors will advertise on more than one sport the point at general motors is not simply trying to reach football fans they're trying to implied license they're arguing that there is by conduct an implied license between the n f l and a p in two thousand and nine they pushed into the record the two thousand and nine agreement between a p in the n f l which says on page sixty two of the confidential appendix that it will remain is a written agreement it will remain in force unless and until a new written agreement is executed it's between the same parties for the same photos and this indisputably does not provide for uses  are we're challenging is infringement so when does the implied license arise is it the first time they steal a photo the fifth time the thousand time this is a factual question they're embracing that a p r allegation a p knew about the uses and ignoring all of the allegations the a p knew it didn't have authority to issue a license and implied license is still license it's still a contract you still have to have a meeting of the minds and again that two thousand and twelve contract it's specifically agrees between a p in the n f l that they have or will promptly acquire this rights you don't agree to that if you already had the right and indeed license did three years prior there's also no excuse for them to not raise this argument earlier this is supposedly on the face of the pleadings as a gotcha argument raise it in the district court if there's any truth to it you raise it in the district court the courts should not go near this argument also this is like palmer came there's evidence of custom in a license first or used first license later approach and judge or a cop said that's infringement looking the other ways infringement that's we pleaded and that's the important critical point this is a pleading case now on davis none of these other cases the southern district cases they rely on two of them are actual agency cases in this case they themselves rely on section one point three the contributor agreements they're not our agent they can't forgive infringement claims for the plaintiffs when they're not our agents four point one reserves ownership to the plaintiffs not to them we're the only one who can sue can i make one more point your honor if a p does nothing in two thousand and twelve if he doesn't issue the retroactive license where our plaintiffs have tens of thousands of infringement claims what they did was release those claims davis isn't a koan or corner case it's a don't release someone else's rights case i'd be pleased to address antitrust issues but i understand it's been a long morning i leave it to the