the district court made three errors in this case st it aired when it ruled as a matter of law that mr carroll was covered by qualified immunity nd it aired when it held the tree so i had no standing relying on the cyber sound case because the cyber sound case unless it was subsequently fixed by car the subsequent decision you cite lacked the power to overrule a prior decision so i'm not sure this is an argument that you might want to address to him in a petition for rehearing a bonk if you don't prevail in this case but we don't have the power to say a previous decision of this court has overruled that that may be a step that needs to happen but i think it's instructive to look at the language of corbell as it has been interpreted well but the problem is it's in it's a great argument it may be right we don't have the power to accept it we can't since no one panel of this court cannot overrule a previous panels decision whether or not that language is inconsistent whether or not t are irreconcilable you something for the bank court it's not for us well what this court can do is recognize that the language in court below that interpreted in cyber sound interpreted it in a way to confirm that the original decision would not do violence to the one thousand nine hundred and seventy six copyright act this court can go back to review those two decisions and determine that the consistent ruling of the court as it should be interpreted contrary to the way that it was interpreted by the district court is that the  case was so brief and raef and referred so succinctly and without explanation to the word exclusive that there's no way to interpret that exclusivity concept or so you're saying the cor over cyber so on this point well your honor i understand what you're saying but our position is that it it determined that the toss iverson language could be interpreted in a way that was consistent with the one thousand nine hundred and seventy six act otherwise the core bellecourt would have said this is inconsistent we need to kick this to an on bank review or something to that effect the it one of the issues in this case is consistency in the industry with respect to copyright and it's important i think that the  commentators have said that this that what happened in court bello was that this court held that can exclusively in copyright statutes cannot mean that only sole owners possess exclusive rights and such a rule would run directly contrary to another well settled principle of copyright law the right of co owners to sue rd party infringers without joining fellow co owners now nimer says the commentator says that this statement is a revolution by redefinition defang the harmful results that cyber sound six and then using this word exclusive to apply to the nature of a license that can be granted and also in the sense of  conferring standing to sue well the all i can say that there is that the language under sections want to one through one of the six they refer to the fact that a beneficial owner of a copyright which would include an exclusive licensee does have the right to enforce the copyright that your client is not an exclusive licensee actually we are an exclusive license or not because you don't own the entire interests the you don't own the entire bundle of rights in the copyright because you are only transferred that portion that belongs to the joint well that that issue is addressed in the minin case this court has determined in the in the minion case that where you have a sole copyright owner who has an exclusive licensee in that case it was a photography company that had photographs and the exclusive licensing age and exclusive license was held to have the authority to bring an independent copyright auction that was in the one million case of pages nine hundred and ninety two one thousand right that's important because if we assume then as we must that the plain statutory language of the one thinks your client is an exclusive  here you have fewer than the individual owners who are granted a right to your client right but if we take the mindon principle and we apply it to the one thousand nine hundred and seventy six copyright act which says that co owners should not overrule it so for purposes of today's argument why choose assume you're stuck with cyber sound very well and it doesn't doesn't that disposed of three of the claims it disposes of some of our claim that's that's not true it well it's like it's not always entirely clear to me ok so what do you do to make a living songwriters hire us in order to handle their licensing and enforce their copyrights one of the problems with cyber sound is that for example if simon writes a song under mindon simon can hire an exclusive license licensee to go in and force his rights if simon and garfunkel write a song together simon's exclusive license unless we look at it as having been fixed by simon and if that simon and garfunkel simon can't grant an exclusive license because garfunkel still has co ownership and garfunkel didn't acquiesce in the grant that license therefore it's not exclusive and yet that assertion your honor i would respectfully suggest is contrary to the one thousand nine hundred and seventy six dollars act which says that a joint owner must have the same rights as a sole owner they do have the same of licensee right there because he needs both of them to make it exclusive and again i can only repeat what i said before which is that we believe that assertion is contrary to the clear language in the one thousand nine hundred and seventy six dollars act which says that a joint and there is a lot of language in our brief to the a fact of the the language is specifically in it as well as the legislative history dictating then the intent of the act was specifically to fix this problem that well yes to dress that question of  ibility of copyrights and copyright interests and a bundle of rights but not this not divisibility in an abstract way divisibility in a way that would protect the rights of the individual joint copyright owners i would like to address right here and i just go back of course are you you get a say in the song you you were hired by a songwriter to do what we are hired by songwriter to enforce their rights to issue licenses so we issue licenses to outfits such as show choir school choir st i don't get paid they pay us and they mean that the songwriters the who plays you the arrangers who create the arrangements which are derivative works they pay to trace on and we remit the money to the songwriters and you get some money yes we get to eat a piece of it and how much money was at stake in this case less than two thousand dollars brought it some four years after that was it was it was the infringement allegedly took place it was not there is it worth is it worth that with respect to these schools well we believe that it's important to enforce the right over of our license source we believe it is worth it in this case we brought it not for years after we learned about it but shortly after we learned about the infringed no no i'm just indicating that four years ago by they issue in this case as a corollary or that maybe the mirror image to that is that as the record reflects these outfits spend hundreds of thousands of dollars a year on professional licensing and professional costuming on a professional arranger to create these the well the five cent answer to that is no i just want to win you know i we're not for we're not here trying to make new law or anything we're trying to point out that the i mean does it would help your business if we issue song right well as nice as perhaps that would be for the music industry we're not here to argue that ok st of all this year we're not arguing why did we were to rule against you and decide that this type of usage is actually at their never ruled on this issue the only relevant aspect of fair use that did come up in the lower court was the fact that the trial court assumed that perhaps mr carroll thought about fair use in the context of being reasonable because he was a teacher but mr carroll never here well as to magic sure i'll talk about the four elements of fair use with respect to the facts that are not so much in dispute but i think would justify ruling by this court that in this case the fair use affirmative defense can't apply ourselves what portion of magic is in the entire show and for the courts referenced that's in the magic rainmaker file and it's a timestamp fifteen minutes thirty seconds to seventeen minutes forty four seconds if the court reviews that the court can see arrangement was not transformative because it was so similar use the exact same original words it used to with the four original verses it used the exact same melody and it used the the most important part of the infringed work that is the chorus as the most important part of the customer arrangement that is the closer that goes to the amounts of stenchy ality of the portion used of course the nature of the work is creative and so one of the four elements is is created versus informational that bears against fair use and the purpose of the sheet music that is one of the elements is purpose and character of the work in this case the purpose of the sheet music was to train performers and have the professional backing band use it during the performance so it's precisely what the intentional work was intended for the most important factor of the four at this court has recognized is the effect on the potential market and this court has stated that any use that supplants original use would or ordinarily be considered an infringement in this case it's shown by the fact that trace on issued for other customers licenses allow inquiries to create custom arrangements for magic this very number there's two school choirs one show choir like this one and one church choir that's for copyrights based upon the limitations that were identified in the plaintiff's reply alternately only two songs are at issue on this appeal which is magic and i've had the time of my life essentially it was only magic customer arrangement licenses the derivative use and the only songs that had in place so you're you're interpret ing from a something that doesn't say that they're only contesting to well you're under  this was for use in your own right and you did but what i did do in the brief on appeal is i indicate to the court that for purposes of this case i think one of the primary issues is qualified immunity and for purposes of analyzing qualified immunity on  problems in this case is that mr carroll did not create the arrangements in question they were created by a rd party who indicated to mr carroll that they were ready to be used and they were used as an educational tool for the class the choir class these arrangement and that he was aware that somewhere out there might be this issue of licensing so there's a lot of evidence in the record that goes contrary to what you just said your honor i believe that the evidence does show that mr carrol  i believe he had some creative involvement with regard to you just how it was presented with and even then that he was in a portion of it yes but performing the arrangement that had it really had something to do with creating the work if it regard to fair use your honor as late as two thousand and eighteen there has been a dispute as to whether fair use would apply in the context similar to this where where a work of copyrighted work is being used in  context of an educational environment as a as a teaching tool and in that two thousand and eighteen district court case the court found that there was no clearly established law relating to that's what that's what that's the problem i have so we're up on appeal an issue that you didn't brief and the issue where you think the law is not clearly established why should we reach that issue or should we in other words let's assume that let's assume that we determine that with respect to this one the magic the magic song there's an issue of copyright infringement you could have raised a fair use defense on appeal but you why would we apply qualified immunity it would mean the president trump i think could use use born in the usa over the objections of bruce springsteen because the law is not  suit it's seems to me like extortion but that's not the issue in front of us the question has qualified immunity and so the white why would we apply a qualified immunity analysis to public officials who are public employees who engage in copyright i just might add that not in the supreme court has never held the qualified immunity applies in the copyright infringement context either i understand or some circuit city have gone there i think they're way off base in applying qualified immunity to copyright law that that's just my opinion and that speaking for anyone but i don't even understand how this case came up and qualified immunity fair use is because courts had been reading into the act not liability for certain settings like teaching or educational uses or informative uses or  use the original piece that's at issue here is the song magic it's not a derivative work that was created by trey sona it's that specific song and that specific song was created with creative intent to essentially  o to it put on a show for individuals it was not created for educational purposes the way that the song was taken in this case and used by the choir director mr carroll was specifically for educational purposes it was taken as a tool to educate students into identifying different styles and how to perhaps to perform these types of different styles in a performance setting in front of an audience with that said i think that the work was also transformative in nature i know the council indicated he did not believe it was but again not only was it transformed into an educational tool but the specific themes and the purpose behind the song was completely different the theme of the song was was was transformed into something that was unrelated to the intent of the original song years old song was about trying talking about the good work are we talking about just the magic we're talking about this show is a whole right and magic has the use of magic with a small part of the correct the whole is approximately twenty seconds they used approximately twenty seconds of the song and they repeated that portion over and over again for a portion of the actual overall show and that song obviously is several minutes long and they use only a very small portion of that song and they also sort of intermingled the use of that song with another song so it wasn't even suggest straight magic being performed at that time so so with that said i think that the the you certainly was transformative not only because it changed the song specifically but it also transformed into an educational tool for the students in how to to perform these arrangements with regard to the nature of the copyrighted work it admittedly you know if looked at generally both of the performances were creative in nature but again i go back to the fact that the choir performance was educational it was meant to be used to educate the students and so i think that the the actual use of the copyrighted work was not the same as the creation of the original it doesn't matter that  e mission was charged to performances i don't think so your honor the the students and mr carroll were not being paid for this performance it mission was to alternately help fund the school  and it was in the context of the of a grander you know educational performance for family and friends so if the proceeds had gone to the students to support their college education or something would we have a different case  i think there would potentially be more of an argument but i still think that the rest of the factors around it would weigh in favor of fair use in this case the the booster club brief this issue the district court didn't get to it because it found qualified immunity for everybody assuming we don't think the qualified immunity analysis is applicable why wouldn't we just send it back to the district court to rule on that portion of the motion for summary judgment that it preacher made it clear and i think that the facts that are presented to the court enables the score to to make a dyno decision based upon whether f applies in this case it was raised it was mentioned in the motion for summary judgment it was mentioned in the briefing and it wasn't really addressed by the plaintiff's counsel in the briefing either and i think that the facts weighed in favor of finding fair use in this case  one reason they didn't address it is because you didn't raise it to be fair right i mean they don't have to address an argument you're raising well your honor if you go back to we did we did cite a specific case that found you know fair use could have applied in the context of a similar context and educational context in our in our moving papers of the motion for some reason in the district court but not in the brain and in our brief on appeal is a short sighted ok and if we go to the if the rd the rd element which is the mountain substantiality of the portion used again it was a very small portion of the song that was used and sure it was the part of the course that was repeated over and over again for a period of time but again it was not reproach forming this entire song it wasn't it wasn't even performed in the same way or context as the original piece was created and finally the effect of the fact of the use upon the potential market i don't think that there's any legitimate argument that this had any effect well your honor i don't think that it takes away when you're if every school is able to do this and and and i know that some schools there's actually like when they do a whole new sickle they will get a license name it will be to perform the entire musical as a school performance and that's a business that people profit in how close is this to that well you're honored to require a choir program who is putting together a show that incorporates a number of different songs to obtain a specific license for every snippet of a song that's potentially used in a performance would create a huge amount of money that they need to spend each year on these types of performances they probably would  scale down a lot of what they do they're not performing the entire piece like in a play for instance at their plane you know performing cats for instance by you know the theater they're performing the entire show they're not performing a little snippet of that somebody is not going to go see the see the live performance by you know somebody live your newton john and i think one really key factor here is if anything i think it would have had a positive impact on the market these students who were born you know after the ninet song was released in one thousand nine hundred and eighty if anything it was exposing students who would never would have even heard the song before probably to a song that they potentially like which would then allow them to go purchase the whole song or the whole cd or whatever made whatever the case may be and i think that's the case with a lot of these hard performances it's exposing new students to music and genres that they may not have otherwise come across if you take away the school's ability to do that effectively by making them pay for all of this stuff anything that could be potentially us choir program and mind you just because a song is stuck that they don't necessarily perform every song that they learn about in a choir program in the classroom right  they perform specific ones that they think are good for the performance value right so if you're requiring a choir teacher to then obtain a license for every single song that's ever mentioned during the course of that class if they go it one day or multiple days for a performance you're effectively going to cut down on what the students are going to be able to to be exposed to so there's that matter that it's only a small portion i'm trying to envision a choir performance where the choir says tonight i will be performing the songs of artistic six and each of the choir singing as soon as one of the songs hardest acts in its complete version do you need to have a about going to counsel fees is there anything in the record indicates how much you've expended you when you're co counsel codefendants of expended on counsel fees yes your honor we did identify all of the numbers are two hundred thousand sticks in my mind i don't remember where i saw it i don't remember what the exact number is your honor i can look at it but i know that it's in our briefing and i know that we do attach the actual fee documents to our briefing the time i'm not sure if i did it all for no because a point at least passed as to magic yes the way this worked was the mr carroll got out of the case st in december so as wilson sets a six month period to go to trial so i started getting ready for getting sued not just here but in arizona under a tort for interfering with contracts that would make every single copyright defendant be liable for interference of contract that's ridiculous i mean this you understand this wasn't sourcing and i'm dealing with parents and their spouses who just showed up to their kids thing and i ended testy because your client's involvement in this case i'm mystified another mystified as to mr carroll whose arguably infringing your copyright i'm just before trial wondering why they were in this case i ask you about the arizona case sir was that was that were do have those two cases going on at the same time well initially trade center suit everyone in arizona in federal court we moved to  minnesota to speak to a choir group a huge group about what to do and so people want to know what's going to happen with trey soon and they're there they're in a lot of uncertainty they sued for eighteen copyrights one hundred and fifty thousand statutory use that would be a lot cheaper than paying trees so and so i want to go back to your clients for a moment there the basis for their feel request is the copyright act oh that's right that's right it's the only basis you made below you didn't make a frivolous lawsuit argument or anything like that you know why why why are you entitled to fees under the copyright act tell me given the language of the act why are you entitled well that the language is that we have changed  act and so that your argument would be the same even if we were to find for example that mr carroll violated the copyright of persona yeah mr carroll you it doesn't matter to you whether there was a copyright violation or not you're not  that people are going to be sued i don't want to go that far well i don't believe your arguments not dependent on the validity of their copyright claims against mr carroll was it  infringement even if there were infringement we certainly weren't direct infringers and yes that's correct rather than the we didn't order the work to be created if i could just add one thing on the  new narrative using the chorus that we can use john song interspersed with barry manilow song if that's not creative i don't know what it is that's the kind of thing that should be encouraged it should be encouraged at public schools have the money to put on professional paid because they're the ones who have the money to fight which mr carroll an employee of the school district yes yes even know he was a part timers sometimes i'm not sure at least not out of status but he was never part of the booster our st i'd like to address a couple ways in which i think the district court clearly did not abuse its discretion in deciding not to grant attorney's fees here one of the things that hasn't been brought up is that needed the booster club nor the board members norma's to carol paid their own attorneys fees they were all paid by rd party payers and that's reflected in our briefing and mr carroll was in fact that preclude doesn't preclude it but it's a factor that i believe the district court took into account when it exercised its discretion no sorry who did pay well the we know that mr carroll's fees were paid by an insurance company the booster club declines to say can i ask you a question in their brief one of the things they say in terms of your enemas is that after summary judgment and living a page twenty two dollars that after summary judgment was granted you sent the complaint to the burbank school district and various state and federal carroll's private text messages obtained the discovery during the california case which are time we designated as confidential for counsel only and attaching hundreds of pages of these confidential text messages them in a racial manner and mr greenberg did make a statutorily protected complaint to the school district so that they could take whatever action they thought was appropriate the messages were exceedingly egregious sexual and racial and a lot of abnormal sexual issues were were pointed out even with respect to students this did not was not specifically relevant to the lawsuit it was made as a special complaint or separate complaint rather to the school part of the problem with this case was that when the documents were disclosed the opposing counsel improperly designated all the documents after the fact as attorney client or as attorneys eyes only even documents for example that were address protective order you have to go to court you can't just rebuild i want to be clear about the timing here at the time that the documents were shared in the complaint they had not been marked confidential ok they were not marked confidential by the opposing side until after the complaint was filed once mr carroll got word of the fact that his improper communications were the subject of a complaint then his lawyers went back and tried to retroactively mark everything as attorney client or attorney's eyes only they were not mark reasonably infer to further his interest in recovering in this lawsuit was enough well if you were to infer that it would be to infer it without any evidence in the record to that effect certainly evidence to the contrary oh yes the fact that the messages are  that's what you're saying is that the release of the message is themselves must have been for you know not to for non o to your purpose because look at the messages the only release of the messages was with respect to the complaint that was filed with the burbank school worth pointing out also that persona is not a copyright troll that acquires copyrights for purposes of infringement we work with sony we work with all the big publishers how leonard the great majority of the firm publishing firms that issue an agent for the booster club when he did these things we know from excerpts of record page five hundred and sixty nine that when the booster club board members the defendants here had questions about licensing they went to mr carroll and asked him  entrusted him with that obligate or with that they can their agent for purposes they were worried that somebody might sue them correctly i guess because you did and they said to mr carroll you're getting us in any trouble and he said no  that make them why does them that make them vicariously liable for anything that he did well there vicariously liable specifically for two reasons the two factors and if it carries liability which is a financial interest which they clearly had because they were doing a fundraiser where these numbers were shown it's not a coincidence that they picked the popular noticeable you know songs for these fundraisers and the nd issue is that they had the ability to control this from not happening they could have told mr carroll at any time hey don't don't commission infringing licenses they could have said at our fundraisers the bands may not use infringing cut sheet music they could have said mr carroll you're not authorized to make sheet music as he admits he did and you sued the booster club as an entity and individual parents there were members of the court that's right they were all liable for alleging eighteen copyright violations i don't recall how many were originally allege the one that still it is you for sure is magic and the reason that the copyright individual defendants got this mess was not based on a substantive copyright legal issue it was based upon the fact that magic was performed in two thousand and thirteen and the copyright or the board members had not been on the board since two thousand and eleven so there was not a determination that was substantive with respect to them it was a determination that oh well now that magic is the only song that survives after we apply the cyber sound rule these individuals need to be out because they weren't around during the time that magic was performed i see that my time is over but if there a