believe that the result is fairly easy if we just look to the facts this is because all reasonable inferences must go in favor of the appellant and there are so many issues of fact in this case about when the case when the case actually a crude court noted that limit circuit has not yet adopted a standard for when a copyright case accrues but regardless of what standard it does adopt there mr webster had no reason to know in two thousand and seven that the a state of dar that it believed that the state owned the guitar that dimebag darrell was a was a huge persona if they did a licensing deal with dimebag darrell it could have been for its license it could have been for trademark it could have been for his horse mint but he had no reason to believe that they were paying that come paying the company on a per guitar basis for copies of the graphic which he knows he never transferred and daisy know he wasn't getting royalties and he probably assume somebody was and it wasn't him that's true and that's what happened patrol and the court let the plaintiff wait for nine years to father case eighteen making copies this is a court of limited jurisdiction this is not a case of adverse possession in common law but i was somewhat you in whether or not he could sue the estate the issue is whether or not he was aware of his infringement of his copyright and the ownership of this copyright in two thousand and four when that conversation took place right he was aware of the infringement but the question becomes whether or not there's a separate statute of limitations for ownership on a patrol that he had all the time in the the estate was not making copies of the guitar this is like a child saying don't look at me look at him he had no reason to believe unlike every case cited here where there was a co owner or two people who were in business who'd been working together he had no reason to because he creates that copyright because he created the copyright and he knows he never transferred it but that's an absurd statement for him to have to think i have to see the estate because they're licensing something they're somebody and the somebody would be the company that would be climbing on a ship he knows that there's some adverse crime of ownership and it's not him so he knows there's a problem does he not he knows there's a problem but who would he sue in that instance you couldn't see the state honor and if there's going to be repudiation of ownership it should be expressed repudiation it shouldn't be something that leaves mr webster hanging saying well maybe they're going to do a deal with me that's not expressed repudiation of ownership that's mr reubens and hedging his bets and saying well maybe but he won't sue me and maybe i'll just try to hold out this royalty that i'll give to him why would he think but he needs a royalty if you didn't think but he had any rights it's clear that but he had rights it's clear that he never transferred them the record of us copyright office to this day is that he was the owner and they made a new version of the guitar in two thousand and fifteen is he supposed to sit back forever and let them have a perpetual license to copy his thing he's getting license fees from other manufacturers but this manufacturer can go on forever and make this guitar over and over again in new models well he has to sit there and say that's my copyright no one else owns it no one else has registered it so someone clear now when the clock begins to run of his friend's death he had nothing to do with it they're coming out another limited edition two thousand and fifteen he says i've had enough i'm not associated with this people online are saying why did they keep profiting off this guy's death i decided i'd had enough under your theory  the company puts out another limited edition then the clock would reset absolutely and so but aren't you if we if we were to adopt your theory of a cruel wouldn't we be creating a circuit split haven't all the other circuits that have spoken to this issue gone the other way and said in an ownership situation it accrues once when there's notice but but but when there is successive infringements no one's addressed this issue and there has to be some plausible  of ownership where is the estate standing up and saying i own this is unlike every other case this allows someone to escape infringement just by saying i think that guy owns it go talk to him and crossing their fingers that that plaintiff waits three years why is there an obligation on the part of the estate to affirmatively represent to your client that it owns that you know your client is put on notice of an ownership dispute when dean guitars is saying look we  dean is concerned they've told you no we don't think he that your client owns it so that that so that then they have a touch of a license to keep making new models it doesn't make any sense that they can make models for the life of the copyright if we follow the either knew or in the exercise of reasonable diligence should have known about infringement that's when the clock should begin and we would have to adopt the th in the th circuit standards in order to accept your argument  i don't believe that your are i think there's no reason that he knew or should know and when he knows he's the sole author and he knows the days before daryl died he was on interview saying but he created the guitar there is no reason to think the state can probably get sanction in a ruhleben for bringing that case he would have no reason to believe the state owns the copyright and the state has sat on its heels and never made an assertion of ownership why why is that because it knows that no one can sign the copyright this case so they have waived their rights as well it creates an absurd situation he should be allowed to suit and just go back three years on a patrol of which he is allowed to do and get damages he lost all the damages when darryl's died millions of dollars he's right that that thank you your honor duggar to appear with ana made enough may please the court your honors i'd like to address a couple points st there's no dispute this case is about ownership and because it is about the ownership of a copyright the district court was correct and its analysis of the statute of limitations up until this case or throughout this case webster has alleged that that the sole issue here is ownership in the summary judgment briefs they said there's no issue on infringement if webster owns the copyright he wins now because this is an issue of ownership we have to look at the statute of limitations under section five thousand and seventy eight and we know that the statute of limitations a cruise th three years a claim must be brought within three years after the time that a claim accrues now as counsel noted involve the situation of infringement that was a different case than ownership patroller was fundamentally different than ownership there was no dispute trella before the supreme court that the plaintiff actually own was the sole owner of the copyright issues and courts have said that the trial it does not displace the rule that the district court applied here that there is a separate accru rule for ownership claims and there's a fundamental reason for that and that's because for an infringement claim every time a copy is made that's a new infringement and the court said you then apply the three year statute of limitations to that for an ownership claim it only happens once there's only one time when a when a copyright is made and because of that the claim must be brought within three years now there's no dispute among the circuits that patrol it did not displace this rule the th circuit  post patrol in addition to the th circuit the th circuit and stanley maintain the separate accrual rule for ownership claims we now have four district courts in this circuit including this case that have also maintained the distinction post patroller we have black box prop solutions and law johnson and in addition to those cases we have other cases in our briefs post briefing there have been for more district court cases post control of that i maintain this distinction so where we stand now is the so you have an advocate advocating for that standard in the th circuit so essentially mr webster is urging you to make a circuit split against this wave of authority and fundamentally we know that circuit splits and copyright are particularly troublesome the seven arts case explained that creating in skin consistent rules among the circuits would lead to different levels of protection and different areas of the country and in the fogarty case and in the reed case the supreme court has on notice should have known whether it's reprise repudiation here we have a situation where a rd party has provided this notice is it can you walk me through why it's not necessary for the should as a reasonable person have learned that the defendant was violating his or her rights now counsel said that mr webster could not have sued the state back in two thousand and five when these guitars were being made well that's not so and we know it's not so because they sued the state in this case and the state is doing the same thing today that it was doing back in two thousand and seven so why could they sue the state now but not back then the answer is they could have sued the state because the state was licensing its rights to armadillo also in answer to your question we have several things that were going on with this with the state was implicated st of all mr robinson who has passed and we can never get any evidence from him because of the delay here  he's no longer had the case been brought timely within the statute mutations he would be alive we would be able to get testimony from and we have that evidence for it prejudice but he did say to mr webster that the a state owns the copyright now c suggested that that wasn't clear enough and it didn't reference the copyright but it in fact did the e mail of two thousand and seven said that the consensus is that the state owns the graphic it was specific to the graphic so mr rub specifically said the estate owns a graphic there is testimony that mister understood that the people in the know who told that to mr robinson were the estate so his understanding was that the state and this is there's no dispute on this mr webster admitted that the a stat he believed the a state told mr robinson that information additionally we have some other things and this is one of those cases where actions speak as loud as words do in addition to the express in writing we also have the fundamental fact that mr webster knew that these guitars were being made in two thousand and five he learned about it in two thousand and four then he knew that the good parts were being made in two thousand five that's when he could have sued he could have sued the est he could have sued armadillo but he waited he waited over a decade to file the lawsuit but he had a claim right there and then and again we know that because they were doing the same thing then that they're doing now that they were sued for it he also brought a conspiracy claim in this case which i think is very telling because he said there was a conspiracy among the estate and among armadillo to deprive him of his copyrights well if there was a conspiracy back then how could he now say that they were not operating in unison also on the actions front in addition to the e mail and edition to mr webster knowing that these guitars were being sold in two thousand and five we have two more very potent facts and  three more potent facts after the email on the testimony is that mr webster testified that he contacted mr rubin seen numerous times to complain about the ownership issue and each time mr rubin since said take it up with the estate sued the estate so we have new admitted numerous conversations where mr rubin said not only in writing but also virtually rebuke the claim and repudiated the copyright claim as well then we have two more facts on top as if that wasn't enough we now have the fact that mr webster want to tease for this graphic armadillo didn't pay those royalties they paid the estate and the testimony shows mr mr webster testified three times that he assumed that the estate was getting paid royalties from armadillo so three times he assumed and presumed that that was the case and he never got paid now in the the nd circuit said that there could be any number of events nd to trigger a cruel trick a trigger the statue of limitations on an ownership claim any number of things and the case law shows that there are different things in calhoun it was simply that the plaintiffs should have known that the song he says infringement was popular shouldn't known that was enough for judge birch to say that triggered the statue of limitations other cases there's been a letter some other cases like the silva case that we cited out of the central district of california the refusal to pay royalties was a nothing well no matter how you slice it we have here five different things and i have seen no case where there were five different independent forms of repudiation and again those five things are the sale of the guitars openly that mr webster knew about the two thousand and seven e mail that unequivocally said he does not own the graphic in the in the guitar the subsequent conversations where mr rubin since said sue the estate you don't own the copyright the refusal to pay mr webster royalties and the payment of royalties to the estate now in that e mail well it turns out the record shows that mr webster did have a deal with armadillo and they did make a guitar together they actually worked together before this lawsuit was filed and made a special guitar for mr webster there can be no doubt that mr rubenstein did not intend to pay a royalty for the dean from hell graphic because he never did he never paid that money he kept saying no and part of this was an olive branch he said he wanted to m band back then and is a beloved band back now counsel noted that their their downloads are at a record high so he sued now why couldn't he say that i mean the there and in fact and in fact the fervor for this band remains today so royalty to the plaintiff paid him the royalty and he said he sent that royalty in the spirit of goodwill time efficiency and in an effort to do the right thing and the court held in that case and this is southern district of texas that the payment does not indicate that the ownership dispute has been resolved because in that same communication there was a repudiation of ownership like we have here although here in this case it's not as not as strong because  year coke introduced the new coke and microsoft introduced windows one dollar he then even though the work was created back then he didn't follow the copyright until two thousand and sixteen now in that copyright application he initially said the publication date was eighty six copyright office above that case you don't have a valid copyright but you don't have notice on it because it's a pre eighty nine work so then he changed his date his publication date to two thousand and four then he changed it again to two thousand and five the current date on the copyright registration is two thousand and five for publication if a copyright doesn't issue within five years of the publication there is no presumption of the liberty or ownership so there are no presumptions on this copyright even where there are any presumptions we have evidence in this case it's uncontested that mr webster did not paint this design and i know the district court didn't rule on it but the fact remains that repudiation was done in good faith and has solid grounds today because at the end of the day we've learned through this case even though through the passage of time it was difficult to get somebody else paid that this mr webster commission somebody else to pay this design and plan was there and there in that way that now the facts that would still mean mr webster might have some claims to authorship and he tell the artists what to do and that safeway give a sketch drawing to the artist and said draw this cornucopia in our stores and even though they gave them a sketch and told them exactly what to do and told them which items to put on the mural that wasn't enough for ownership because that's just merely an idea it's the honor he has assigned the copyright to the estate so they are the rightful owner of the state again going to the fundamental point this case is about ownership it's all a dispute about ownership and when it's ownership we know from virtually every circuit that's ruled on it and now there had been many that you must file within three years of the time that the claim accrues and the claim accrues in the th circuit when you knew or should have known about the infringement and that case it was january two thousand and five when these guitars were being made and when mr webster absolutely could have sued the estate because again he just did so in this case so why couldn't he do so back that and that's when a claim accrues and fundamentally as this as judge  birch explained calhoun there's a fundamental reason for this rule there is evidentiary prejudice and there's unfairness to waiting in the weeds and how it's going to copyright years later and we have just that in this case with all the fundamental witnesses particular and your honour's after all of that i think it's clear that what i said in the very beginning is true that there are issues of fact in this case it's for instance mr rich's said that the sale of the guitars in two thousand and five opposing counsel when those were it's it's very important that when the three year starts in this case it shows you how easy it is in this case to mix infringement with ownership there is no repudiation two thousand  former owner of going to tar said to mr or had said to mr webster in the past sometimes you ask for permission sometimes yes for a forgiveness everyone intellectual property law knows what that means that does not mean york certain ownership  mr webster clearly there's clearly issues of fact here whether he knew or should have known that there was an ownership claim by the estate and if the estate had an ownership claim it clearly should have brought affirmative counterclaim in this case for  it's difficult to say that that's the exact same to torah that was produced in two thousand and five because it's not it was sold as a new guitar it's a new derivative work that creates a new right under section one of six and at the very least mr webster should be a lot of trial on whether he's entitled to damages and injunctive relief to stop being guitars from continuing to make derivative work they do not have a license to make derivative works forever this is not the case for this circuit to say that to just set a standard  there was a big difference about when mr webster should have sued mr abbott was murdered mr webster had received e mails with pictures of leather jackets with bullet holes and then people close to mr abbott were other designers there was a lot of strange things going on no one wanted to come out against the state of their lab it in dallas even the last year after the summary judgment was granted because of posts on social media implying that guitar's own the copyright mr webster was at a concert where he was frequently she was yelled that by people that got around him start yelling at him if you body webster went after blah blah blah this is not something that he took lightly so that's why he didn't even today  at back then who knows let's see i want to point out the issue that the court brought up about the legacy and this is the same legacy issue that was brought up in patrol where the supreme court said it's hardly incumbent on copyright owners to challenge each and every actionable infringement sometimes the value of the copyrighted work will go up sometimes infringement has no effect on the original work and sometimes it even complements it with fan sites even if an infringement is harmful it may be too small to justify the cost of litigation and court continued sue now or forever hold your peace would put copyright owners in a very bad position which is what's implied here mr robinson's quote again i have taken some time and spoken with several people in the know in the consensus concerning times graphic is that dymes the state is legal owner of it was that said i would like to work with you on a dime project because i'm about making not making enemies but making friends read it and i have plans to do it again from hell relic and would like you clearly been established by everything that was said here today that this is the case the court can adopt this new standard but it should send this case to trial no buddy webster can have a hearing on what he knew and when and whether it was reasonable for him to wait thank you thank you counsel