the morning may please the court the district court made three material errors in this case any of which would require reversal and remount first of all the district court misinterpreted this court's ruling and that ruling made two salient points first of all the panel it quote need not determine whether merkin and russians reliance on the copyright office website is objective lee unreasonable nor whether other factors weigh in favor of granting fees nor whether his conduct was akin to bad face efficient strengthens the court also said prior panel said the district court may reconsider its grant of costs and fees and as imposition of sanctions if and when it calculates fees and costs with respect to the copyright claims only for the take by that th the previous part of this court didn't expect the district court to wipe out the fees and costs for all but the tortious interference with contract that is correct the expectation was and in fact on the knish will remain and he didn't frivolous subjectively unreasonable or paquin meritorious so that goes to the question first of all that commentary is is a bit aside from the test for tortious interference which is a subjective test but looked at merkins mental state at the time that he interfered with the screening it does not look at what the parties litigating positions were in the case and in this case the position was i saw a comment on a website and i don't care if the judge says this isn't the law i'm going to make this the law there were counter claims this was a very narrow appeal they'd they'd he didn't appeal the denial of the injunction on any of the factors he didn't appeal the fact that the court ruled that there was a breach of contract by taking the footage and registering it with the copyright office he didn't will the fraud curtseying does say you've got to look at the difference between someone's someone's positions separate apart from the case and what arguments were made in this case so google was not that argument was made the case the arguments that led to garcia versus google which lasted for a short period of time and judge kozinski opinion you know lasted for nine months is that the arguments that were made there were not made here there were the opinion we actually brought the opinion to the attention of mr merck and reisman in the because it came out in the middle of our briefing on appeal and we said here's a case they didn't mention it in their reply brief they didn't mention it at argument they didn't seem to know what it was an argument they had every opportunity what happened here is we've got a case and judge sullivan's frustration is clear he does document with factual findings on the record why this is such an extreme situation where a party basically says i don't care what the law says i saw something on a website and i'm going to perpetuate this case i'm going to assert six counterclaims i'm going to run of fees maybe mr merkin thought in april two thousand and twelve in his heart of hearts that you need to have sign off from a party and contributor to film they never put in any legal authority whatsoever nothing even akin to what was marshall toward the ninth circuit nothing at all except for this website and the law hollywood which we never saw as the basis for saying that they could interfere with a film created by thirty three different people that was just the circuit court opinion the previous circuit court opinion a subjective test it's a very high bar it requires a determination that the party intended to solely had bad intent even if they had the it's this goodness the prior panel's decision says that asserting a claim and with a belief however merit less of belief that something is legally sound does not rise to the high level tortious interference the question in the copyright act isn't you apply that standard that that was not improper how do we fight how do we affirm the copyright decision multiple ways the a copyright act and curtseying says this is an objective test that looks at the litigating positions in the case we cannot under curtseying turn section five zero five into a subjective test it is object of for sure they fees are the rule rather the exception rather than the exception copyright cases and the courts do look at these issues objective lee what we would have under a standard that elevates the fees test to one that requires a high mental state of tortious interference is we would have every litigant saying but i believed in my case even though i lost i believed in my case they wouldn't be obligated to put in any law they wouldn't be able to they wouldn't be obligated to make any theories are you for the extension of the law they could say i relied on the internet which is what happened here so if they are two very different tests that have nothing to do with each other we're also talking about a federal statute versus a new york state tort claim you don't have to commit a tort to be responsible for fee shifting copyright claims yes and that's what priests pacifically well with respect to the decisions the issues the points were not appealed for example breach of contract the arguments were baseless were i mean they were frivolous the arguments with respect to the copyright office were not supported the arguments with respect to conversion as a reconversion replied and claim frivolous so there are with respect to the claims there are but also if you're going to assert this record you're saying abused it discretion in warning while the district court did a warrant that didn't make factual findings reaffirmed those findings the only thing that happened was is that a letter came in after he ordered that the fees be awarded he did find sufficient facts he abused his discretion by not exercising it in a sense the court this court said you may we're not making a decision as to of this comment about his about the party's mental state in two thousand and twelve as not having met the threshold we actually didn't do discovery on this point as not having met the threshold that was he somehow it all collapsed he ignored the fact the curtseying says you've got to look at the litigating positions and this is not we did not have the parties that were litigating garcia for example we had headstrong insistence that some commentary from a website was what it took to it's to say that anybody can interfere with the screening of a film and continue to fight this an ask for counterclaims and all this stuff on and on and on i think judge sullivan did did find that but felt that any of the material we quote in our brief is you know shows he felt that this was that the that this is exactly the type of case where i'd like to correct one continuous misstatement there has been may both in the prior appeal and there's one on december twenty seventh two thousand and eleven alex merkin did consult the copyright office website and based on what he saw there he made an application to the copyright office and lo and behold the copyright office granted him a copyright certificate this whole case from my point of view and from m point of view was based on seventeen u s c section four ten c and i made at least three motions dealing with section four ten  me even if the certificate was improvidently granted but it he did not lie or commit any fraud in getting it because the right certificate in this particular case was fo directorship of the movie which is what he did he didn't say i own the movie didn't say any of those things he said i was the director and they granted him the copyright for directorship now we insisted that i'm for ten c he have a valid copyright this court clarified the law in a case of first impression which is what this case once so when this case what was first appealed on at page and seven ninety one federal there page two sixty two it's they argued and they argued all the way through that's what judge sullivan impose sanctions for against me because of that and this court considered dead and said no now isn't it true that this court's previous opinion said that the court wasn't reaching your argument as to whether you should your claim was objective believe reasonable for the purposes of a warding fees under a second rebel five by that but clearly judge you sullivan impose sanctions based on the willful blindness to a factual and legal condition he says stand on page twenty one of his original opinion and symptoms are thirtieth two thousand and twelve based on their reversal of the interference with business relationships are immense everything else pardon me the affirming of everything else everything else i'm not and we and that is the law which we now interpret this was after all a case of first impression on this particular issue so they affirmed everything else and they said here's the situation this case merkins claim of this reexamine its simplicity of fees costs and sanctions which is exactly what judge solvent did he did reexamine we had a discussion on october the nineteenth two thousand and fifteen and which judge sauls been explored all of the issue what the words meant and that we think spent more than a half hour w counsel for the plaintiff going over lewis and he explained how he was going to go about proceeding they then brought their motion and it is our position throughout this whole matter that judge sullivan properly exercised his discretion within the bounds of their decision of this court in first instance and in cord with the mandate and that is our position all the way through in the in the in the district courts summary judgment opinion of september thirtieth two thousand me continue for example the fact that you and this is the quote grossly mischaracterized the media agreement now that those don't deal with the copyright he that this court previously found was not objectively unreasonable but why aren't those grounds for sanctions under section one nine hundred twenty two the matter was at all times during the lower court proceedings i was relying on not the website i was relying on the copyright certificate and i was doing that because the copyright law said that was prime aphasia evidence of merkins copyright i merkin didn't lie to get that copyright he said it's pages seven hundred to seven hundred three of the initial record which is part of this record merkin said i was the director nobody disputed that that was conceded and they gave him a copyright for that based on that certificate which he had an effective january third of two thousand and twelve based on that certificate that's why he made the call and would just accept if it could relate to the n that mr coffee said that they needed a change of title his whole philosophy of what he was taught in film school and piple the chain of title meant that everybody who has the possibility of a copyright has signed over either has a work for hire or otherwise their copyright now again i would also like to point out when this case was less than one month old about three weeks alex merton offered to settle the case all he wanted he had never been paid anything on this thing so he said just give me the fifteen hundred dollars that you didn't pay me i'll give you a copyright and we'll each go our separate way they said no we want sixty two thousand dollars for a film the cost of according to them forty five thousand dollars so the fact of the matter is they prevented us from we wanted to settle three weeks after the case started because he was in florida directing two feature length films he didn't have time to really to litigate and he said look i'll give them and they told me he had a copyright they not only told me have a copyright they told me it was for directorship i had nothing to do with that i'm sort of like his godfather he couldn't get himself a lawyer while he was strong in florida so he had to settle with me so the fact of the matter is i i looked at the law i saw seventeen us see section four pence and he said well what he has oh my goodness is promised facie evidence over a valid copyright they never ever were able to read but that and that's really what happened in this authorship direction and acclaimed all other elements of the film except for the script in the screenplay was right there there and the court directing correct that that was what was claimed was everything except for the script in the screen play and notably they didn't appeal that decision first of all the court the media agreement prohibited the him from even filing in the first place he did not disclose to the copyright office he was restricted from doing  that he also they also did not appeal decision that he did commit fraud on the copyright office because what is claimed is everything he led the copyright office to believe that second having a copyright registration does not mean that you could interfere with the exploitation of the film we have explained this to mr rush and i know he is not a copyright specialist and i've been writing letters since two thousand and twelve you explain that injunctive relief is not going to be granted based on one person's claim of copyright ownership first of all this you know this is not this does not a deciding factor but secondly it will happen in the context of the four factors of the injunctive relief judge salva made findings on those factors and they were not appealed secondly to say that the argument has been about section fo complete reliance on the copyright office website was objective lee unreasonable so he believed that the panel did not find anything on that point in fact i was upset that the panel did not w in to state why his complete reliance on the website was unreasonable this concept of chain of title obviously is relying on this law of hollywood point we did explain and judge sullivan did a very valiant effort in trying to explain that contracts in hollywood have nothing to do with what the law says this is how we got to this point there was nothing left this is not a case of first impression one issue of first impression as the court recognizer a lot of other issues in the case is a very limited appeal last last but i do want to address this concept even though settlement discussions are inappropriate what we got in response to our motion for a hero in for larry injunction was a motion to dismiss counter claim six counter claims a threat to take this all the way to the supreme court judge sullivan found that the case is being litigated on principle there was never an offer to settle for a walk away not three weeks not it any other point in time we didn't run up sixty thousand dollars in fees in three weeks anyway this just can't be true there was a list of our injuries that were put forth when we came to settlement discussions in front of magistrate judge patton and we said these are our injuries we include our calculation fees to date up that point and that was that was many many many weeks after the quickly came cases filed so i think this is it's telling but it's also it's also untrue i don't think it moves the needle i think that judge sullivan he did consider those arguments he rejected those as a basis thank you thank you both for your arguments the court will reserve decision will hear th