get into the history here today and i'm here to address to really rather procedural points with the court one is whether the district court's ruling on standing was correct this was a twelve  for the record company is asking the court to bind over the artist in this case to judge miller's will even though it didn't occur to after the court's approach generally to essentially adding to the record on scuse me there's a final judgment that follows the district court's final judgment in the present case trying to bind over close to one another case we don't think this is a proper use of collateral stoppable think the court has a view or should be the ruling his opinion in a case that was settled during appeal there is a final judgment and there's nothing that precludes our applying a collateral estoppel other than you say our court has been loath to do it in those circumstances but i wouldn't say look first of all of us are correct that are still that i wouldn't say loath to do it i would say it just hasn't been proceeding with the situation or if it has it hasn't written about it would and that's when pronounce it asserted any sort of copyright infringement claim is that correct i believe that's correct i don't know that's true as far as what cases are left what cases were left at copyright whatever his infringement copyright infringement claim you say they're still live in other words they weren't voluntarily dismissed or anything of that nature in the order voluntary dismissed voluntarily dismissing a number of  and those would arguably be the only ones where it could be asserted that the claim that the assertion can be made that well for those type claims you have to specifically state we're giving up any where we're signing to our lawyer any any right to prior copyright infringements as i understand it that's perhaps the only issue on the on the by her ruling but we were talking about state law claims and in fact that the case the other cases referred to a lot of the grief is the sciences case from also from the houston area and look and see what the language says and if it doesn't it basically tracks where you're where i think you're going with this judge ports deal which is under the copyright act in a copyright law generally prior existing clients don't travel with  assigned unless they're expressively it's expressly assigned a grid i mean i don't think it has to go into great specifics it may not but we have here exist before the assignment was made and no we've demonstrated in our brief i believe this infinite five of that these claims were filed and did exist before the assignment was made or they at least existed before the assigned it was me going back to the sciences district court opinion we think the law is basically the same texas law versus the copyright act so we don't think that there's any meaningful distinction in terms of where do you draw the line on when the claim rises in the copyright  assignment of any and all claims does it again clue claims existing before the day of the assignment see that doesn't make sense to you when you give up any and all claims not only you think about what might arise in the future but just common sense why you're thinking about claims you already have and again i know we will just have to look at the law but well i'm not sure though the law isn't strong as one distinguishing factor of course is this special power of attorney that was executed unfairly used to show walter which was really the crux of the district court analysis here i don't think even the district court would say in this case would have said the assignment power of attorney by itself convey such exclusive rights to mr show author that he was it was an essential party and had to either bring represent his clients and take an interest in the claims so that he can get paid why don't you address the breach of contract summary judgment against mr ramos i would be that thank you so there were two issues really in the breach of contract matter the existence of a contract and whether there was a breach of contract there's been there was some discussion in the district court's opinion about whether the contract existed we don't think that's really an issue because the same nine hundred eighty five agreement that the court talks about was actually cited and i think even including the some adjustment record in the motion filed by the record company so the perspective that there was an agreement the real issue that i think the court wants to hear about is the issue of breach and whether this was a shame affidavit or sham declaration that was filed that mr ramos prepared that d well if you look at the corporation for starters it says we have the ninety five contract or first the same contract that that the record company refers to and it says there was a breach says i didn't get paid deposition there is just by the dictionary definition of this doctrine that's important limitation on the doctrine a first executed affidavit is not subject to the same affidavit doctrine testimony whether it whether there's a temporal imitation or not there has to be a clear contradiction between testimony a and testimony b and what the testimony was here that the record company says was contradictory  i don't remember i remember getting paid i don't remember getting paid we say it's not the same as i was paid i wasn't what he said about the contract itself the eighty five contract he my recollection is  is there has there been any question raised and i'm not implying any impropriety has any question been raised about since mr show walker has these assignments of all claims that maybe he shouldn't be the lawyer and  produce pain in this case is a more i'm just asking we've always wondered how he could do that whether that there was a conflict in our tempus case not only was he the lawyer he was his own expert witness and he was appointed himself directly yet we had that of it's not for me to say but that's how he conducts his business but anyway your honour's what what is missing in the fundamental underpinning to copyright law is all of this a crude r rule argument is not even relevant it's not even dispositive here why because whether you transfer in a crude role t or whether you transfer prospective royalties the bottom line is you have to be the owner of the copyright to which that rule t may pertain well here what's been missing and we put it in our brief but it's not gotten attention is that these claimants voluntarily moved to dismiss with prejudice their copyright ownership claims to all the songs except one one of their own not not true your honor on that one mr what mr of you want to want to did was he retain his copyright infringement cla however his declaratory judgment action for copyright ownership he dismissed with prejudice he only retained his declaratory judgment action with respect to the accounting which was the contract matter number one we don't have a contract with mr want to bottle so that's not even pertinent to him but as to the copyright ownership claim they were dismissed so none of them have standing to bring the claims or to come in here and try to bootstrap and a demand letter that from mr ramos stating that we should have no right to exploit our own album and we're thinking whoa what how can that be we have a contract with mr ramos we recorded that album we own the copyrights to the sound recordings there's a big difference between the sound recording and these compositions of these artists and so then we received a second demand letter that's when we check and determined well mr shoal water was suing the freddie records parties on these exact same songs so collateral stoppel does apply it's the same issue it's the same contracts it's the same claimants what what this is a bit attempt is a backdoor way to try to undo the blow hard of case that's totally improper to us because we have permission from some of the freddie records publishers we have to bring them back in and so we think that's totally incorrect standing under this court's precedent kittyhawk must be determined at the time of filing and at the time of filing there was the these assignments had been in place and it wasn't just the assignments your honour's what t about a crude roll tease or not that was that coupled with the special power of attorney was a notarized document the word special was on their their head meaning you cannot after you get an adverse judgment try to change the facts by backdating and entering into new agreements so these cases that we've been they briefed don't apply where there's been a clarification this is a wholesale modification trying to change an assignment where you're transferring copyrights whether accrued or unapproved you're transferring those and then you lose a motion and then you try to rewrite that to say you know it's not we're not assigning anything at all we're undoing the assignment that's not what happened systrom that's not what happened and pray there in those cases there were some clarifications on the accrued did the transfer in clude the accrued claim here they're trying to undo the transfer all together to try to get standing that's totally improper and that can't happen and moser makes very clear that whether that decision was right or wrong it's now a final judgment mos case we had raised the argument of collateral stoppel and he had said in front in the lower court case well but it's not final get well but he knew it was about to be final he himself dismissed with prejudice his appeal making think correctly now the sanchez case was brought up that's completely unrelated different contract different assignment different parties it wasn't the same list of three hundred fifty songs it has nothing to do with the outcome of the standing issue here plus we've already stepped in and noted that the issue of ownership has already been decided it was appealed that issue was not appealed your honour's the issue of ownership of these copyrights was not appealed and so there's really no standing whatsoever accrued on a crude whatever you want to call it plus it's totally improper to try to change the facts after you get an adverse ruling and we think that's improper and i would refer to the court where mr showalter try to do this in the tempus case he did the same thing when we won that trial he ended up he went for a summary judgment in front of judge rosenthal this was of a different november seventh twenty thirteen there's another great heads people number five nine six four five nine six four five one six it's a judge think what is a really great case for your honour's that wasn't briefed by either side of that we ran into a twenty fifteen case it's called optimal golf solutions versus all techs corp and that is at twenty fifteen westlaw nine with three four three four and at page two of that opinion the same kind of thing where a party there is trying to enter into a later room and to change the facts and the court there says that was so the district of texas that case or says quote allowing a subsequent assignment to automatically cheer a standing deep de unjustifiably expand the number of people who are statutorily authorized to suit parties could justify the premature initiation of an action by of bring to the court that their standing through assignment is imminent permitting non owners  licensees the right to sue so long as they eventually obtain the rights they seek to have redressed would in mish the judiciary in abstract dispute risk multiple litigation and provide incentives for parties to obtain assignment in order to expand their arsenal and the scope of litigation inevitably delay and expense would be the order of the day close quote we think that's the same principle here that an after the fact assignment cannot tear when kittyhawk makes very clear standing is determined at the outset of the case and for good policy reason your honour's plus these claimants going to have copyright ownership rights to even argue accrued rights and it wasn't a on the issue of mr want to watch though in the dismissal of his copyright ownership claim i would direct the court to the court order was a documentary one six six in that set the record on appeal page six eight five four six eight five four in there mr want to want to destroy the order dismisses with prejudice quote portions of his claim for declaratory judgment document and then you look at the actual declaratory judgment that was filed you see your honor that it record on appeal page five nine five six what mr blunt to want to in the other cla were seeking to declare it was then they put into dispute the ownership of an entitlement to possess control all rights and all copyrights in the works that was a dismissal with prejudice against them and also the in title meant to possess or exploit the works that again that claims dismissed with prejudice against want to want to have all the other planes and so this back the way for them to try to argue they have standing to bring case yes and i thought he was going to be here i'm surprised he's not here so this is the first time that him not participating in a in a proceeding against tossing the records every now and then he'll send his associate to a hearing but he speak he and his firm have been participating in the case i think you still co counsel it's just that mr smith is co counsel with mr shoulder i've not seen a notice of withdrawal at all your orders and keep in mind these documents these assignments and these special powers of attorney these were drafted by mr showalter very sophisticated copyright lawyer he knew exactly what those words were what they meant what they transferred what they didn't claims didn't retain anything not even a portion of a deck action that was a d m c a claim brought in this case after judge rosenthal ruled in our favor in on a motion for summary judgment have a claim unless you're a copyright owner so we've been perplexed about this what what has really been horrifying about this case for a small record label your honour's is that when we got these demand letters unlike the guzman in one case the goostman two case the tempus case the scientists case this case was over the top different not only for the infringement claims but what mr showalter did he went to some we were horrified by that the we had contracts with these artists that we own the sound recordings is typical in the industry so we had no choice but to follow deck action to to determine who that we own our own copyrights and he was suing us honor actually the sham affidavit ruling well we believe your honour's that it shouldn't matter if the sham affidavit comes before or after a deposition it's still a sham here what i think i also lost in the totality of the evidence your honour's is that it is true that the sham affidavit here are a sham declaration came after the deposition came after the  judgment motion then we have four days later a deposition in which mr ramos honestly and candidly answered questions under oath saying and now i can't remember anything yet four days averting in a written statement that he didn't get paid in that these representations were made to him and at on and on completely inconsistent these go to the heart of the case  disavow the contract oh yes there is a contract i didn't get paid yes i did get paid i only got paid a thousand i should have been paid more i mean on and on i didn't know they were selling their product yes i knew they were selling my product from day one i e hundred eighty five so these are not minor discrepancies like some of the cases they cite these are major significant inconsistency that undermine the competency of that affidavit in the case law is pretty clear  only consider competent summary judgment evidence we would refer the court to us the lowrance it's a fifth circuit decision to seventy six said third one ninety three this court had said that such self serving allegations are not the type of significant problem of evidence required to defeat summary judgment in b m c music versus martina's seven scuse me seventy four dead third eighty seven at page ninety one the fifth circuit again same holding quote considering that the only evidence in support of the defendants there is conclusory self serving westlaw for five three four zero four two same thing quote self serving affidavit is employed to create material facts should be carefully scrutinized by the court that this circuit has held that unsubstantiated assertions are not competent summary judgment evidence close those we think whether it's it's a sham affidavit comes before or after the depo doesn't matter we think your orders are to clear up the law on that point if these contracts had to be construed under texas law in texas law requires that a contract be harmonized and so if you look at the entire special power of attorney and yet you read it alongside the original that's not a problem don't it it would be seemingly a fair conclusion to say that what was what was intended here was not to convey an irrevocable right because otherwise it would it would render basically one word or at least a phrase in a document executed after the original contingent fee agreement in this case  so as far as so i don't think the court even has to get to the curia document if it reads the agreement construes it as a whole under texas law then standing would have been destroyed as far as what happens with iraq the tories i don't think is really relevant the objection that was raised in the district court was this is a shame for them if they were at the company it wanted to object to the affidavit on the basis of its conclusion it's self serving those are independent bases for raising objections to affidavits and and can be viewed on their own as far as grounds for exclusion that's not the reason that the district court gave here