copyright infringement case there are other aspects of it but the essence of the case all has to do with copyright infringement and after a week long trial approximately after much briefing by both parties which have produced a lot of documents we have a large stack here there's only one document that can be said with any degree of certainty was a document that was actually created by the purported or third of the works that are the subject of the registrations in this case there's twenty nine copyright registrations but there's only one document provided by the purported author and that document is a very simple line sketch of address with general indications that there are to be embroideries on the dress but no specific and that's an important distinction because there's not copyright protection available for dresses copyright protection for dress is not possible because dresses are useful articles and a copyright statute excludes that so what we have here are twenty nine copyright registrations which depict very detailed embroidery patterns and the evidence in this case is is completely absent that those  patterns are the work of the purported author at best the absolute best the evidence would establish that those works are derivative works in other words will is not sufficient for copyright derivative works and works that a designs and colors well i would say there's two things there's to answer your first question are absolutely correct there is copyright protection is available as a matter of general course for derivative works however the requirement of originality still is present so while the derivative works as a category are copyrightable you still have to establish that what has been change from the underlying and that's i'm trying to get at this really two issues one is that we had a problem originally with the fact that the jury would see the dresses when the cars the rights are not possible on the dresses on the theory that they would look to the dresses as a whole for evaluating the copyright protection that was one issue but the second issue we never about any right address you can't copyright it the style of address it's you know the cut and again that's because it's a useful article can copyright is perfectly proper to get copyright protection on the embroidery patterns on the fabric on the fabric and we never drop that our contention always was there there's a two fold problem here while it is certainly certain that a copyright registration creates a presumption that the underlying work is a copyrightable work that presumption is not inviolate and the reason for the presumption is because there is a assumption of regularity thing in the preparation of the application and the following of rules and regulations in its issuance in this case we demonstrated that that presumption is not proper not properly taken in this case for two reasons one is not a single one of those twenty nine registrations indicated properly that it was a derivative work every single one of them left off that critical bit of information so no one at the copyright office was aware that you are being claimed as the riveter of works but you never prove that there was any actual bad faith or fraud involved in you at most and they acknowledge it was an oversight and the copyright laws very clear unless they had intention to commit a fraud on the office there  in not advising the copyright office that it was the riveted is not fatal to their copyright claim i agree there has to be evidence of intentional mysie deceiving of the copyright office but that doesn't have to be direct evidence the evidence that can be brought to bear can be inferential and i think if you look at the overall circumstances in this case there srong evidence that creates that really the conclusion that there's only one reason the acts in this case happen the way they did and that was to not commit the copyright office to have access to the critical bit of information and i know that in the case cited by the pelleas there's a very important and critical distinction number one it was one registration and yes there was a derivative work that was not identified but it isn't the fact that it's only one as opposed to twenty nine in that particular case the derivative the work on which it was  derived was the work of that very same author that was demonstrated and not contested here we have twenty nine registrations the evidence is very clear that mr lang who was the person who signed each of those twenty nine were present during the process of the derivation of the work but so that he could prove that it wasn't original design you didn't pursue your the original drawings and the work ups of domi at all oh yes you did your honor  well i don't think you don't didn't you give up that opportunity to see her original nine titian's and so forth no we didn't run or we we did not give that up we specifically a couple of things one is we specifically asked it and order from the judge would ring that the the files of the purported author be searched and that order was denied and we never said ok we don't never want to see those files the probably had with that your honor is that there was never any effort to even look at her files she was never even informed that there were copyright registrations being filed she didn't even know they were filed and nobody asked her to look at the files and we never gave that up secondly your honor we  iran and it might be a little bit confusing because the at that deposition we had each of the dresses and the point there was to have the purported author look just at the embroidery patterns as opposed to the dress we're not contesting that the author didn't design a dress we're not saying that it but that's not relevant to this case because the question here is did she design those embroideries patterns and in every single instance she said no in fact she said the first time  the pattern is when she got to china and so that's really really important this case for two reasons and both are very important number one nobody in this courtroom today based on all this record can say what changed from the underlying work which she saw when she got to china to the work that's in the registration what is that that quantum change nobody knows that's a problem in and of itself and renders the registrations invalid but the second problem which is just as important is in order to prove it is that make the registration invalid you have the burden to show that because there's a presumptive there's   and and different color schemes and so forth put in but we don't know what the there's general statements and most of those statements don't even come from the author become from the author's boss you don't know if we don't know what he knows but case is that many of your references are two items that are not in the appendix we can't find them in the record you know what would a law can do we have only if you've made reference to points that  at least as far as i notice them we knows them ok you know i don't know if you're you come from a big firm with multiple offices and in a rule thirty f which is seldom used in this court provide for the so that you know you can make reference to what's below and you can make sure that what you need is on record below well look at we go to i and that's a that's a good suggestion in this particular case the record blow operands and rule against well your honor if that's the case i would i would ask if you identify with i think the i guess what i'm saying is i've been through the briefing through the appendix and i think all the critical information is there i didn't notice in my brief at least it the witness was looking at a particular address or a particular embodiment and it doesn't come across very clearly always in the record yeah but the say something in the brief this give us a citation that appendix a are let me check this out sufficient and you've got a lot of people sitting around over here for and i maybe you could figure out what's missing because a comparison of what's there versus what you need might give you the answer ok you're yes ron i would be happy to do that ok question iran or the the basis for the contract count was that there would be infringement of copyright so if there's no infringe if there's no valid copyright and there's no infringement of the copyright there can't be a breach of the contract y you contract that said you were not going to duplicate as or pass them off again aren't you admitting in the contract i won't violate your copyright and then is that there's a line you're about to sign a contract like that and then come back so that the copyright in the contract to the extent one exists and i would say that it there's real issues about that in this case but the extent to copyright a contract can be identified it was very clearly limited itself breach being caused by the infringement of an actual copyrighted work as opposed to just some general generalized you know i'm not going to copy so and again the reason for that is because there's been contention from the very beginning about whether or not there has there is a copyrighted work that's valid in this case i'm sorry that wasn't there evidence that there were any conversation where m i would say in the first instance you're on a yes no mention about copyright in their conversation if there was a conversation that was then there was an effort to put into writing which was never about well there was a writing that was produced and signed by by my client and that writing has the reference to the copyrighted works so part of the public debt is it's there's not a clear contract here and you know to go to a conversation the two parties have in taiwan over coffee there you're right there was testimony that sitting down together they said well we'll see not try to copy each other's work but when when push came to shove and it had to be put in writing it was a reference of the fact that there would not be and the contract and that is because the principles of muncher e and ms gnome herself as she testified at trial believed that these were her original designs and they were not derived from other works that testimony was clear on the record  even if it wasn't as as clear as it might have been the jury determined that there was no fraud on the copyright office they made what was inherently a factual determination that there was no intent to deceive the copyright  show that it it was enhanced and made different and and a true copyright of riginal work there was ample testimony from both ms dome which was presented on videotape to the jury as well as mr wang who importantly accompanied ms dome to china and worked with her in developing the final product there was ample testimony from both of them  when he showed her a part of the flower on the principal dress that was at issue number two one nine one seven that took up most of the time at trial when he showed her that flowery said are you the first to actually draw this flower and she said you know i don't think so but when we went into detail with her and this was part of her videotape testimony on what she did to arrive at the final design what was her artistic contribution she went into not the most detailed pictorial of of the dress it was her initial sketch on the right hand side written in chinese our whole set of instructions to the factory on how large should the petals be what color should they be what types of beads should be used where should the beads be placed what type of stitching to use those were her instructions to the factory the factory prepares the initial mock up she then goes to china as she testified along with mr wang and they view what the factory comes up with and she says none no that's not what i want this is what i want there was detailed testimony in the record on march thirty first a page one eighty four in the transcript for ms doma carries through for several pages where on this particular address to one nine and seven she testified quote i remember giving all details about the embroidery on that style she gave specific instruction about where to place the flowers going from top to bottom on the dress she wanted to make the flower look dimensional so she used to she asked the factory to use two different color threads she goes on to testify about how many different stitches could be used she selected a satirist ish she one of the monochromatic effect to achieve dimension in the flower these were extremely i realize we don't have the dresses here hearing who are but they were shown to the jury and there's no dispute that there was substantial similarity between addresses it in even the witnesses testified i can't their own designer said i can't tell the dresses apart you know that the jury obviously ruled and it was before the war and they rule in your favor his position is about of law the ruling was it correct so i mean  argument that he made to the jury they they they can't show originality and we obviously argue to the contrary present of the testimony including the testimony of mr lang who wasn't just up boss testifying about we thought his designer did he was physically there and witnessed each step of the design process now they argue that as testimony was not credible the jury obviously were and say obviously but the jury took all the testimony into account made  factual determination as it can do in a copyright infringement action that she was indeed the author which didn't rebut the presumption and certainly didn't establish fraud on the copyright o  how are we going to conclude whether or not it without any reference in the record to what the court looked at to determine the motion should not be green the how are we to make that decision i guess that point goes back to the point i raised is that there there's just a lot of absence of record detail for us to decide this case well i yes i have pointed i understand that is directed at me as well and i apologize going to score deficiency at least on the sufficiency question well for you though you're standing up to a large extent on the rebuttable nature of the copyright itself and the fact that the jury and the judge had to dress actually before they saw the i mean this is no secret they saw what was there and if if if if the defendant wanted to say it's it's the it's the drive pattern pure and simple with not that much difference he should have made a showing that a jury that look this is just the original pattern that they didn't make any any real change it while there was no showing at trial by the defendants that there was any other design well this mostly preexisted this was post motion also we're dealing with here but i think the district court was in the same shoes that the jury was in which was the the defendants did not step forward with the exception of two of the dresses two one nine one seven and i think one three six six eight which was the giovani dress the exception of those two dresses they did not present any evidence that there was any preexisting design from which they claim is domed arrived at her work there were was the one who came up with the designs each one started with a sketch with instructions to the factory we went through each dress we have them all have us because the dresses they are i there were there were dresses all over the court room and i had a mirage dress was i agree the protect ability i wanted was all in the embroidery your attention that paid to one ninety eight of the appendix where miss dolly that where you were the first person to draw that pattern on any what may have been previous thing elements there are tons of roses and flowers out there the factories have all sorts of of samples that they use and i think what she was testifying to was no i was not the first one to draw this particular fire i'm not the first one to draw this fine what i did do though was i gave instructions to the factory on what it is that i wanted that final piece of art on the dress to look like just as in in the folio impressions case decided by the second  me on the left side rather the right side is that something that copyright oh it was it was much more detailed than that your honor it was take i want the flower to look like this i want to bring it out more i want to extend the petals i want the vines to look differently and then we're talking about one of the particular dress of the beading in the coloring of eating the coloring of the beating a whole imprint the whole artistic impression that the work in it is separable from the dress itself worn arguing that the dress bility of the the testimony that was given by more about the ajam of the name of dominic dominic giovino again yes and you know why shouldn't the court have made an initial name of the case chemical or that that held that the issue of agency is a fact issue and it was disputed and the judge was well within her bounds to allow the jury to determine whether dominic in fact was an agent at the end of the trial or of part of my argument as this ended up being homeless error because at the end of the trial based on all the evidence came out it was very clear that dominic was an agent of mr wu and his company's mr will himself testified that dominic was authorized to sell his line in the southwest area in texas specifically were ms martin's retail shop was located ms martin herself of course testified not just to what dominic set but the fact that he was in an order form with mr wu's companies names at the top filled out for the mirage evidence on passing off was that the dresses that ms martin got from fort myers when she filled out her order didn't have any labels on them there were no mirage labels in them there were no labels at all identifying the manufacture of a dress when it was it was in the record and certainly the jury could easily have believed that there was an intention to pass the based on mr basil's testimony and this morning testimony i made their intent was he has an will there anything to show that somebody that i want to on power and they got him arrive that not from a direct customer your honor there was no evidence of that but we did have the evidence of the dress dresses were shipped without labels we also had the evidence that dominick told m s martin we want to do it this way and in fact i'm going online to target all the retailers who use private label all of the retailers who buy muncher e montages that's my target market i'm going to go to them just as i went to you and suggest that without the labels and addresses you can pass this office as a montage dress now we know that the dresses result we know that hundreds and hundreds of these dresses result do i have evidence of other retailers who actually sewed their labels in to the mirage dresses no i do not your honor but i do know that the dresses were sold the jury knew that and they knew that the game plan from the very start was to pass them on and i believe that know if you want to address the agency issue involved dominic yes i will do that i believe your question is a good one i think it was not proper it was and it was highly prejudicial the very first witness at the trial ms martin for her to be testifying on pure hearsay there was never an offer of proof at that time or at any time thereafter to establish that the dominant dominic was an agent i don't think there's any testimony sufficient at any point during the trial to establish that he was an agent of the appellant's in this case there was a mention that he worked for mirage well mirage settled out of this case and that's a whole nother issue but there's been no establishment of agency and i think it was improper for the judge to leave it to the jury really at sea without an or asked to figure figure out whether dominic was an agent and i think when the testimony is looked at there's really no testimony be something that i had to research and i dealt with this many time this is an open question as to whether or not you send this issue to the jury or decide it yourself you know there's a there's a conflict in the circuits on this and i would agree with that you're on and if there's a factual issue why should you let the the jury decide it and wash the judge decide a factual issue which is he threw the litigation a couple of things your honor at a minimum there should have been some offer of proof before the jury heard the testimony once the testimony is heard it's too late to take it back miss morton was again the first witness and she spent half of her testimony talking about what this person dominick said who never did have a last name at that point never showed up at trial if there should have been some gate keeping activity going on before the jury hears you know testimony whole big chunks of testimony about what somebody might have said and then leave it to the jury to try to figure out was that guy an agent without really think the problem is twofold one is that you object the way that you never objected to the question that was presented i did your honor we had a sidebar was the basis for my objection and in response to my side bar which i was talking to the form of the question that was presented to the jury you didn't suggest a different form of question to the jury while for your question was presented to the jury your honor oh yes it was presented with a question as to whether or not there was an agency yeah i think to that extent i agree with you did and it wasn't a question fairly i mean it wasn't was that a one way question i should but i think it was a i think it was not a fair question and i guess that's and i agree that the judge said there was an issue that's come up and we don't know if this person is an agent or not you to determine that that question yes was presented i didn't object to the way it was presented but well i didn't have an opportunity because we had the side bar and the judge had indicated this is what i'm going to do my objection was an ongoing objection if you will  i told the judge at the sidebar that that that was not in my view was not a proper way to proceed that there should have been some evidence at that time already for the proceeding in that way  i think i'd like to if i can't i mean this is very important as you judge when you made a state of the question which i think is a good when you said didn't a jury have the opportunity to see these dresses yes but let's there's one critical thing that they never saw and that is what was the original work that these dresses were derived from nobody seen that and i think it would be unfair to put that burden on the defendant in a trial like that you want to we came forward with very strong evidence as judge or has noted that the the purported author said i did not make these drawings and what's important is that mr hilliard says well she says she didn't make the flowers or if you look at the copyright registration ron and  litany of the registration we came forward with very substantial evidence to rebut that presumption and that substantial evidence was that here's the inventor and she's saying i didn't make these drawings at that point it's impossible for us to present the jury with the the the the work if you will that those drawings were based on we tried to get that evidence we found out that ms domes files were the most likely place that evidence would have been is in this dome file they were never searched we can't create something out of whole cloth or we can do is say there's a there's a question here these things were clearly derived nobody knows where they're derived from it seems to me the burden has to shift in that case to the to come forward and for two reasons one explain to the jury ok jury here's the original work and here's the work in the registration so the jury can see the difference between the original work and the work in the registration that's phase one  two the next one is the jury needs to determine that that difference is present in the accused product the third piece the jury couldn't do any of that nobody knows what how this started nobody knows with any specificity what happened i mean we have generalities and i think the you know if you look at what was stated it was stated that i moved the flowers well the location of the flowers on the dresses not copyrightable that's very clear she's just added some fred of a different color who's who's going to assess whether that addition of threat is copyrightable we don't we don't know because we haven't seen the underlying work and moreover we don't know if that change in threat is present or not in the infringing work because we don't have the comparison to make and the only person who could have the obligation of producing that evidence is the plight that there's no way for us to create it there it's their burden once we've established  real issue with respect to those registration which we which was done by number one the testimony of the purported author and number two by the fact that each and every one of those registrations was not properly presented there was no way for the for the copyright examiner in fact to determine whether there was something original there because he didn't have the underlying work either to look at either neither was identified nor was described and under those circumstances the burden has to be on everything that she says that he says is hearsay correct in other words she's the one testifying a trial she's telling the jury dominick said to me that anything from that point on is hearsay x i'm less it comes in is an exception correct