this is or you're not we have the we're waiting for the certificate seanad you argued that you didn't need to be registered under existing precedent at the time of the filing of the complaint we is that you understanding of the case law was that there was no obligation to be registered that's at the time that's not an argument that you made to us on appeal it's all right now it's not in your brief it is correct that we file as late as you did but you never made an argument below or to us as to why you can file as late as you did all you've said is we filed late but that's not an without any other ar that the good cause was that you weren't aware that you had to be registered at the time of filing but you didn't make that argument below so why did this require air in not allowing your chips to remain won't we like we explained since the beginning of this case song contest and it's the nd of those four appeals in which the court has before it a decision below dismissing the appellant's claims under rule twelve and that's because the appellant has not appellant cannot meet any set of facts which would give rise to a cognizable claim relating to his participation in the contest the music video that he alleges infringes his submission to that contest we have in the record here at cd which has the two if the two videos how did i get it right that should not be in the record your honor and in fact  i believe it was unilaterally placed there by the appellant in the proceedings before this court that cd was st submitted independently of any pleading any motion we objected to it becoming part of the district court's record it's there but it has never been part of any consider has not been considered in any way by the district court in any proceeding in this case so the district court allowed it in the record the district court allowed it to be part of the docket it wasn't part of the record on any motion neither was it wasn't submitted in connection it was just submitted stand alone as something that's on the docket so the district court's decision here there they be a mystery but it wasn't part of the record on the motion that's before the court or any other motion in other words what was the part of the record considered by the court in connection with our motion one is was our briefs was were the documents that were incorporated into effectively the complaint which we attached to an affidavit but the district court was very clear in this case that it would not consider and did not consider anything that was not part of the complaint that was outside of the complaint including what was submitted by the appellant entitled statement under penalty of perjury with his opposition so i think the court can infer from the district court's reluctance to consider again anything outside of the pleading itself that that cd was not considered in any way by the court with regard to the motions so in that respect it doesn't form any part of the record considered by the district court nor any part of the record for your honors today so the discourse decision as i was saying makes very clear that there is no allegation whatsoever to support a claim for copyright infringement no allegation i would imagine what he's saying is there's a thing right that's pretty detailed not as it's not as detailed as it needs to be but do you have a case saying that you have to say more than that for purposes of copyright i don't have a case specifically as it relates to copyright per se but i would fall back on the standards twamley and it where it's very clear that you can't just come in with a conclusion re statement that it's virtually identical you need to put facts you know which you know that's what he says they don't say that you can't come in and say there is a violation of a copyright act and when but if you see they're virtually identical that nothing in torment tells me that that's not a what are you saying it has to do with like this bar is the same as that that's exactly where i was going you know what case tells me that for copyright if you don't have one and i don't i can't deduce that just from twamley i don't have one that says that specifically but i do know that if you look at th an airstream and the lotus want you three borland case it makes very clear that there needs to be ultimately an established identification of where the similarity exists of for example ultimately what you mean by ultimately we get through the courthouse door yeah and why is it wrong it's wrong because you do have the ability as the party who created the work to do exactly what your honor had indicated and i can say from experience without i don't have a case for you but i have certainly seen many copyright infringement cases where within the complaint where there's an allegation of whom will our report what are you if they say it's virtually identical what's the what are you incapable of responding you know no they think they're words they don't go you can show they are not i can't show that at the pleadings see right and what that does by not requiring some amplification and that information by the way to amplify is you know how to defend against then you would just put on proof knows what is the point of the requirement as to what has how specific the complaint has to be i would have thought to give you notice of what you're up against it's you know you're up against some you things it's virtually identical so if you can prove some significant disparities you do it right and that's what the proof stage but the purpose of having the more particular i's context based standard under twamley and ball is to make sure that before a party is required to have to put on that proof you have to incur that expense there needs to be at least some plausibility articulated in the complaint that requires the process to move forward it's very easy for anybody to say it's virtually identical not if it's not true it is i even to say that it's not true it's not they're not allowed to say that it's not true they are not allowed to say it that is that is absolutely correct right so it's not so easy to say it unless it's true for sure but we are going to it's different to say he violated the copyright act that's easy to say but he didn't just say that he didn't just say you copied it he said it violates how great it is it's virtually i don't and it's easy for people to say that but also easy for people to think that if taking your honour's example if you had a staff graph with the notes plotted in rhythm and meter also laid out in figure one for example then figure two so figure one would be the allegedly infringed work with the notes set out figure two would be the allegedly infringing work and that is how one could show beyond merely a statement that i think it's virtually identical that there is at least some plausible identity or similarity between the two works that would support moving forward into a stage where you are looking at factual issues and other ways of suppose the complaint was filed number one but he says he created the he created a video which gives rise to copyright protection however in order to be able to sue as a matter of law there needs to be copyright registration but beyond that you know that is there are cases that say that has to be in the complaint and no it has to be an element but is it a defect of the complaint if you don't specifically  is i'm sorry i missed this in it was coffee it's not dealing with what the complaint has to say the th state case says you have to have registration as an element of the cause of action before you can sue but it doesn't speak directly to the question of what you have to include in the complaint i would submit that all elements of a cause of action need to be planted in order for there to be a stated cause of action if you're missing one of those elements i believe that you have properly stated a cause of action but to answer your question just like more broadly and what we put before the district court was the proof that was incorporated into the complaint by the appellant that the appellant doesn't have any rights in what he is alleging was infringed and so the district court did not yet to that because it ruled on both the ownership and the lack of proper pleading grounds however again i sa record we argued them below the district court didn't reach them but i would submit if you want to take a look at those documents there are ten instances within them tends to sift instances within and that make clear that the work that the like well all of the three was part of the complaint they are referenced in the complaint and made an integral part of the complaint paragraphs twenty one dollars through twenty nine dollars of the complaint refers to those various evidence of no allegation of registration of the copyright and we decided just on the ground what happens does that mean that the complaint can then be broadly if that's the only ground we get  based on new registration new claim and nothing that's happened before gets in the way of that right if your honour's determined that that was not proper then he would have to amend his complaint and then just or just he just file a new comp case but if it's a motion to leave to amend the complaint then the district court would be in a position to say that it's too late essentially although copyright infringement it's a three year statute of little no for purposes of amending t lead to men just that this is going on for quite a long time without you getting your rights too late now i'm not going listen to it one hundred percent yes so this isn't an either of those theories the case would just end on that ground right there anyway yes yes but then to your point if you were to file a new friendship that's happened over the past three years there are other issues relating to ownership that would be impacted by the statue of limitations but the fundamental issue that would be before the district court at that point in time if the rehearsal were to be on that basis would be smissal below your order was not just based upon the failure of registration it was also based upon the failure to plead and copyright cause of what if we affirm solely on the ground a lack of registration that would not be racial right