[00:00:00] Speaker 00:
All right, good morning to you both.

[00:00:03] Speaker 00:
So on this matter, each case will also have 15 minutes.

[00:00:07] Speaker 00:
I do understand that we have a cross appeal here, but it is our intent to treat this as a single appeal for purposes of your time at the lectern.

[00:00:18] Speaker 00:
So please be aware, you each have 15 minutes.

[00:00:20] Speaker 00:
If the appellants would like to reserve time for rebuttal, it's your responsibility to reserve and keep track of that time.

[00:00:27] Speaker 00:
And Mr. Billik, you may begin.

[00:00:40] Speaker 02:
Thank you, Your Honors, and may it please the Court.

[00:00:42] Speaker 02:
I'd like to reserve two minutes of my time for rebuttal.

[00:00:46] Speaker 02:
My name's Tim Billick.

[00:00:48] Speaker 02:
I'm the attorney for the Aquarian Foundation.

[00:00:49] Speaker 02:
And I'd like to thank you for taking the time today.

[00:00:53] Speaker 02:
Also with me today in the gallery are members of the board of the Aquarian Foundation.

[00:01:02] Speaker 02:
First issue I'd like to address is that as a matter of law,

[00:01:06] Speaker 02:
The 221 church works, that's the 177 registered and the 44 proprietary works, should be considered work for hire because Keith Milton Reinhart, as an employee, created those works pursuant to his employment agreement using church resources.

[00:01:25] Speaker 02:
But the district court erred by refusing to acknowledge any of those facts and

[00:01:33] Speaker 02:
as best as can be gleaned from the court's findings of fact, simply looked at the registration certificates and then moved on.

[00:01:43] Speaker 02:
The district court performed no work for hire analysis, applied no legal standard, and under Ninth Circuit precedent, that exercise is reviewable de novo.

[00:01:59] Speaker 01:
Well, looking at it de novo, let me just go back and

[00:02:03] Speaker 01:
get your understanding on the work for hire.

[00:02:05] Speaker 01:
We know he was an employee, but that's not the absolute deciding factor, as you know.

[00:02:12] Speaker 01:
So a couple questions I have here.

[00:02:16] Speaker 01:
Here, we actually have the board explicitly authorizing him to register the copyrights in his name.

[00:02:27] Speaker 01:
That, it seems to me, coupled with our case law,

[00:02:33] Speaker 01:
I think it was the Church of Self-Realization that kind of distinguishes between religious leaders and what I'll call the run-of-the-mill work-for-hire employee.

[00:02:45] Speaker 01:
Can you really give us your view on how those factor in to your claim that this was a work-for-hire?

[00:02:54] Speaker 02:
Thank you, Your Honor.

[00:02:56] Speaker 02:
And that is getting straight to the heart of the issue.

[00:03:00] Speaker 02:
Right.

[00:03:03] Speaker 02:
As far as why this case ought to be treated somewhat differently than the self-realization case.

[00:03:15] Speaker 02:
In self-realization, the, well, excuse me,

[00:03:24] Speaker 02:
Here, in our case, the splinter church that was started by Lownes was started before Reverend Reinhardt's death.

[00:03:36] Speaker 02:
And also distinct here, we have testimony from the church.

[00:03:44] Speaker 02:
We have bylaws.

[00:03:45] Speaker 02:
And we have articles of incorporation that very clearly spelled out what the duties of the ecclesiastic head

[00:03:54] Speaker 02:
were, are.

[00:03:56] Speaker 02:
And we also have bylaws and testimony and articles of incorporation that very clearly spell out that contracts dealing with the payment of money are to be approved by the board.

[00:04:10] Speaker 02:
And without that board approval, the alleged license that I'm sure we'll get to later, without approval from the board,

[00:04:22] Speaker 02:
That license is null.

[00:04:25] Speaker 02:
It's void ab initio because there was no approval to ratify that license.

[00:04:30] Speaker 01:
So that kind of jumps ahead to license, license termination, but going back to works for hire, my understanding from reading the record is that one of the reasons that they decided to let Reinhart

[00:04:45] Speaker 01:
put these in his own name is so he could make these publication decisions and the integrity that work, which kind of goes along with the self-realization notion of he's the creator of this, I don't want to call it religious, is religious a fair word to use?

[00:05:05] Speaker 01:
Yes.

[00:05:06] Speaker 01:
Okay.

[00:05:06] Speaker 01:
Yes.

[00:05:07] Speaker 01:
Of these religious works.

[00:05:09] Speaker 01:
So the record, everything in the record seems to point

[00:05:15] Speaker 01:
along with the X on the copyright registration that these were not works for hire.

[00:05:21] Speaker 01:
So I have, what I'm kind of waiting to hear is something that would contravene that.

[00:05:28] Speaker 02:
Understood, yes.

[00:05:30] Speaker 02:
So thank you for redirecting.

[00:05:32] Speaker 02:
So distinct from the self-realization case, what we have here are, we have facts showing that the church dedicated resources to creating these works.

[00:05:48] Speaker 02:
We have facts that Reverend Reinhart was paid a salary.

[00:05:53] Speaker 02:
And also distinct from self-realization, part of the

[00:06:00] Speaker 02:
The resources issue is that creating these works, many of these works where the apportations were occurring, I believe this is the video exhibit that we submitted in the record.

[00:06:14] Speaker 02:
As you can see from the video, like doing these kinds of works took a team of people.

[00:06:22] Speaker 02:
It's not one person would be able

[00:06:25] Speaker 02:
to create these works.

[00:06:27] Speaker 02:
Sure, Reverend Reinhardt, undisputably, was directing the substance and was directing many of the teachings, but at the end of the day, these copyrights are resources.

[00:06:48] Speaker 02:
These are assets, rather.

[00:06:49] Speaker 02:
These are assets that were created with church resources.

[00:06:52] Speaker 02:
We don't have those kinds of facts.

[00:06:55] Speaker 03:
Was Reverend Reinhart ever told by the board that he had no authority to license this material?

[00:07:05] Speaker 02:
There is no facts in the record stating that.

[00:07:10] Speaker 03:
So the answer is no.

[00:07:11] Speaker 02:
That is correct.

[00:07:13] Speaker 03:
And did the board at any time have a policy about what constituted works for hire?

[00:07:21] Speaker 02:
There's no facts in the record for that, so the answer is no.

[00:07:28] Speaker 02:
What we do have, though, is within the articles of incorporation,

[00:07:33] Speaker 02:
the stated rule and within the bylaws that, again, I'm going to be jumping ahead to the license here, that licenses or contracts dealing with the payment of money do have to be approved.

[00:07:50] Speaker 02:
And as far as

[00:07:56] Speaker 02:
why protecting the integrity of the message does not immediately equate to ownership.

[00:08:04] Speaker 02:
You can have a person who is the shepherd of the message of a church, but at the same time you can have someone else

[00:08:13] Speaker 02:
actually own them and have the rights to it.

[00:08:16] Speaker 01:
It's like the director on a movie.

[00:08:18] Speaker 01:
I still haven't heard why kind of the flip side of Judge Hawkins' question where here the board explicitly authorized to put them in his name.

[00:08:30] Speaker 01:
So if the copyright is in his name,

[00:08:37] Speaker 01:
I want to now jump ahead to your license question.

[00:08:41] Speaker 01:
If it's in his name, why couldn't he then license it?

[00:08:45] Speaker 01:
Isn't he the owner of the copyright if he's the registered owner?

[00:08:49] Speaker 02:
This is where it gets complicated.

[00:08:53] Speaker 02:
It does.

[00:08:53] Speaker 02:
Yes.

[00:08:54] Speaker 02:
And because under Ninth Circuit precedent,

[00:08:58] Speaker 02:
What's on the face of the copyright certificate is not the end of the question.

[00:09:03] Speaker 02:
Agreed.

[00:09:04] Speaker 02:
Right.

[00:09:05] Speaker 02:
And so what we have here is we have these, what is undisputed is the employment relationship.

[00:09:15] Speaker 02:
What is undisputed is the resources that were dedicated to creating these works.

[00:09:23] Speaker 02:
And we have a man who is,

[00:09:25] Speaker 02:
part of this church pretty much his entire adult life from 1955 until his death in 1999.

[00:09:33] Speaker 02:
And so we have evidence in the record that the church did rebut this presumption of some of the information that is on these registration certificates.

[00:09:48] Speaker 02:
And one of the church's problems with the court's decision is that

[00:09:54] Speaker 02:
There was literally no discussion of any of these facts.

[00:10:01] Speaker 02:
And based on the Ninth Circuit precedent, the Church submits that between the Articles of Incorporation and the bylaws and all the resources and the fact that these works were created pursuant to his very clearly stated job description, that that creates the legal relationship

[00:10:25] Speaker 02:
of which a piece of paper

[00:10:29] Speaker 02:
Does not necessarily outweigh is the church's position.

[00:10:33] Speaker 00:
So Please clarify for me council Was mr. Reinhart was it an accident that he had the copyrights under his name directly not aquarian Was that on purpose was that strategic on behalf of aquarian?

[00:10:49] Speaker 00:
um, and I asked because I saw as part of the evidence submitted, uh, there's a

[00:10:55] Speaker 00:
declaration from Reverend Warner wherein she states that all published and unpublished works were required to be copyrighted as Reverend Reinhart's name while he was alive so that Reverend Reinhart, as the author of the materials, could maintain the integrity of the works and make publication decisions concerning which works would be used for publication to promote the teachings of the Aquarium Foundation.

[00:11:20] Speaker 00:
So I guess I'm wondering, I mean, it seems like it was very intentional.

[00:11:26] Speaker 00:
I don't know why that couldn't have been limited works for hire.

[00:11:29] Speaker 00:
Check the box.

[00:11:32] Speaker 02:
I wasn't there and certainly that is a fair implication from that statement from Ms.

[00:11:41] Speaker 02:
Warner.

[00:11:42] Speaker 02:
But again, it's our position that

[00:11:46] Speaker 02:
It's a very important distinction from someone controlling the integrity of the message versus actually owning these works.

[00:11:58] Speaker 02:
And we see later on towards the end of Reinhardt's life.

[00:12:06] Speaker 02:
that between putting the residuary clause in his will, that everything's gonna go to the church, there are a handful of registration certificates later on that do in fact say, hey, this is, I think it's in box 4B, as in boy, there is a box that says, this is going to be owned by the Aquarian Foundation pursuant to my will.

[00:12:32] Speaker 02:
So we do have,

[00:12:34] Speaker 02:
evidence of intent that the church is going to be owning these things.

[00:12:40] Speaker 03:
It's also evidence of Reverend Reinhart's ownership of these materials in that he had to express in a written document that they would go upon his demise would go to the church, correct?

[00:13:00] Speaker 02:
That is correct.

[00:13:01] Speaker 02:
That is correct.

[00:13:02] Speaker 01:
So if you jumped into the license

[00:13:04] Speaker 01:
leave, work for hire, let's say he... Aquarian acquires all this, as you've just said, pursuant to the will, correct?

[00:13:15] Speaker 01:
Things get transferred back.

[00:13:16] Speaker 02:
That's correct.

[00:13:17] Speaker 01:
And then Aquarian terminates the Landis license, correct?

[00:13:23] Speaker 02:
Correct.

[00:13:24] Speaker 01:
So the conundrum you have is Aquarian is not a statutory heir, it's an heir

[00:13:32] Speaker 01:
by virtue of the will, of course.

[00:13:35] Speaker 01:
But how do you square that if the license is terminated by acquiring being legitimate, how do you square that with the Reno case?

[00:13:48] Speaker 02:
In so far as why Reno does not apply here?

[00:13:54] Speaker 02:
Correct.

[00:13:54] Speaker 02:
OK, thank you.

[00:13:59] Speaker 02:
In Reno, here,

[00:14:03] Speaker 02:
What we have is, again, we have additional facts of that the church was intended to own these things sort of outright.

[00:14:17] Speaker 02:
And if not outright, the church would own these works eventually.

[00:14:25] Speaker 02:
Also distinct is we have probate orders saying that the

[00:14:32] Speaker 02:
The the assets have in fact been been transferred to the to the church and going from memory here.

[00:14:39] Speaker 02:
I don't believe those types of facts are are in Rano and.

[00:14:43] Speaker 02:
Unless the this court has additional questions, I'd like to remain my last one minute for rebuttal.

[00:14:51] Speaker 00:
OK, thank you counsel.

[00:14:52] Speaker 02:
Thank you, thank you.

[00:14:55] Speaker 00:
Alright Mr Wolf.

[00:14:57] Speaker 04:
Good morning, I represent the appellee.

[00:15:00] Speaker 04:
Bruce Lounds.

[00:15:03] Speaker 04:
The court should confirm the dismissal of this case for two central reasons.

[00:15:10] Speaker 04:
First, because Aquarian never received these copyrights either by a conveyance or through a will that had been fully probated and administered.

[00:15:23] Speaker 04:
And secondly, at trial, it was proven that Reinhardt was the owner of these copyrights

[00:15:30] Speaker 04:
that they were not works for hire, that he granted Mr. Lowndes a license to use them, and that that license was never properly terminated.

[00:15:40] Speaker 04:
Now, the Copyright Act, Section 201, allows two and only two methods for transferring a copyright, conveyance or by operation of law, which would include through a will or intestate succession.

[00:15:57] Speaker 04:
There was never a conveyance in this case.

[00:16:00] Speaker 04:
There's no document that has been submitted.

[00:16:03] Speaker 04:
The Aquarian did not allege that there was any conveyance.

[00:16:07] Speaker 04:
In fact, in their second amended complaint, paragraph 26, they allege that to the extent Reinhardt owned any rights, they obtained them by will.

[00:16:16] Speaker 04:
Likewise, the court in finding number 17 found that Aquarian Foundation's ownership of the copyrights came through a will.

[00:16:26] Speaker 04:
Okay, so it is only a will that we are dealing with.

[00:16:28] Speaker 04:
Now, there was some suggestion by Aquarian that there may have been a conveyance involved because of certain statements that a personal representative made.

[00:16:39] Speaker 04:
But if you take a close look at those, that was a declaration submitted in 2021 relating to events 20 years earlier.

[00:16:48] Speaker 04:
It was a one-page handwritten declaration

[00:16:51] Speaker 04:
and didn't say whether the conveyance was made in writing or whether it was signed, which are both requirements under Section 204 for an effective conveyance.

[00:17:02] Speaker 04:
So, if there isn't a conveyance, let's examine whether it was passed through a will.

[00:17:08] Speaker 04:
First of all, the first thing you need to know is that the transfer of rights under a will, the transfer of property rights, is uniquely a function of state law and state process.

[00:17:22] Speaker 04:
And the transfer, whether someone receives something by a will, is not just simply judged by the four corners of the will.

[00:17:30] Speaker 04:
It is also judged by looking at the process by which it was probated and administered.

[00:17:38] Speaker 04:
One thing I would like to correct on the record, the will in this case made no reference to any copyrights.

[00:17:45] Speaker 04:
What it said was that Aquarian was the residuary legatee of all of his assets after the payment of his debts and administrative expenses.

[00:17:59] Speaker 04:
But see here, if a will is what happened in this probate,

[00:18:04] Speaker 04:
is that the will was initially filed.

[00:18:09] Speaker 04:
A personal representative was appointed, but then the case drug on and on, and there were a succession of status conferences.

[00:18:18] Speaker 04:
What's the status of this?

[00:18:20] Speaker 04:
At the last few, the personal representative didn't show up, and the case was dismissed without the administration ever being completed.

[00:18:29] Speaker 04:
Now, a completed administration is absolutely necessary to transfer an interest.

[00:18:35] Speaker 01:
What is your best citation for that?

[00:18:38] Speaker 04:
Yeah, Your Honor, the citation for that is the Haviland case, which states, this is, excuse me, yeah, the state of Haviland states

[00:18:54] Speaker 04:
It holds that a present interest in property is only acquired when a final judgment is entered, distributing property by the probate court.

[00:19:04] Speaker 04:
In that case, the court dealt with the Slayer statute, which was a recent enactment, and they had to determine if the wife's rights had been vested because the estate was still open.

[00:19:17] Speaker 01:
But how does that apply if you have a personal representative with non-intervention powers?

[00:19:23] Speaker 01:
Because that's what we have.

[00:19:24] Speaker 01:
That's the real question here.

[00:19:26] Speaker 01:
And the Slayer statute doesn't.

[00:19:28] Speaker 01:
I mean, that whole de Havilland case isn't really on point, it seems to me.

[00:19:32] Speaker 04:
Well, I also cited to the court another case, which I actually dealt with exactly the same fact pattern here, where someone had failed to appear at these status conferences.

[00:19:44] Speaker 04:
And that's the case of Erickson versus Stenman,

[00:19:47] Speaker 04:
a Division II case, which appears at page 17 of our brief.

[00:19:53] Speaker 04:
And what that case involved was a daughter who was trying to challenge, her father property had been foreclosed on and she was trying to challenge it.

[00:20:04] Speaker 04:
But the probate in that case of her dad's estate had been dismissed, just like here, because she hadn't appeared at the conferences.

[00:20:15] Speaker 04:
And in that case, the court held that she had no vested interest as to support the action.

[00:20:21] Speaker 04:
The court said, and I quote, at page five, it said, Ryan's estate entered probate, but probate was closed due to the personal representative's failure to appear at mandatory hearings.

[00:20:34] Speaker 04:
No final judgment distributing the property was entered.

[00:20:38] Speaker 04:
That's the exact same fact pattern as we have here.

[00:20:41] Speaker 04:
If there's any question about it, when you look at the final order by which the court closed the case, it makes the statement that, quote, this order is not a final adjudication of any issues in this matter.

[00:20:58] Speaker 04:
Because until you get that order of distribution, there are a variety of things that can happen.

[00:21:03] Speaker 04:
The will could be challenged as being invalid, a successive will.

[00:21:08] Speaker 04:
a successive will might be found.

[00:21:12] Speaker 04:
The estate could prove insulting.

[00:21:14] Speaker 01:
Well, a lot of things could happen, but the question is what did happen.

[00:21:17] Speaker 01:
What did happen.

[00:21:18] Speaker 01:
And if, in fact, you can basically transfer through these non-intervention powers that the individual had, and then it's not challenged, nothing happens, I don't know why that wouldn't serve as a legal foundation.

[00:21:36] Speaker 04:
Now, as we sit here today, 20 years removed from these events, we don't know, can't say whether those things would have happened.

[00:21:43] Speaker 04:
That's true.

[00:21:43] Speaker 04:
However, it's the fact that they might happen.

[00:21:46] Speaker 04:
It's the fact that they might happen, which makes it not a vested right.

[00:21:52] Speaker 04:
There is a statute which describes what happens at the close of probate.

[00:21:58] Speaker 04:
And it says that there is to be a distribution order of all the property.

[00:22:03] Speaker 04:
There's another statute I quoted.

[00:22:05] Speaker 04:
that says that you can apply for an interim distribution.

[00:22:11] Speaker 04:
Okay, so those are the statutorily prescribed methods by which this property is transferred.

[00:22:17] Speaker 04:
The last thing I've got to say is when you look at the statutory framework is that there actually is a statute out there that relates to real estate.

[00:22:27] Speaker 04:
And it says that real estate interests vest automatically upon death.

[00:22:32] Speaker 04:
And interestingly, there is no similar statute pertaining to personal property rights, which these would be copyrights.

[00:22:43] Speaker 04:
So because that process did not run its course, Aquarian Foundation never acquired the copyrights.

[00:22:53] Speaker 03:
position, just so I'm clear, is that these were not works for hire.

[00:22:58] Speaker 03:
Reverend Reinhart had the sole and exclusive right to deal with them.

[00:23:04] Speaker 03:
He created them and he had the inherent power to issue licenses, including to your client.

[00:23:15] Speaker 04:
Yes, Your Honor.

[00:23:16] Speaker 03:
But he did not have the right to express in his will that the rights to these things went back to the foundation.

[00:23:26] Speaker 04:
Well, I think he very well could have set it out in his will.

[00:23:30] Speaker 04:
And if they had completed the probate process to the end and then got an order of distribution, then they would have the standing necessary to sue under those copyrights.

[00:23:42] Speaker 04:
But they never followed through.

[00:23:43] Speaker 04:
They never completed the probate.

[00:23:45] Speaker 01:
So let's jump ahead, because there's a lot of this case has, like, if this, then that type.

[00:23:52] Speaker 01:
OK.

[00:23:52] Speaker 01:
So go to section 203.

[00:23:56] Speaker 01:
Do you agree that Aquarian is not a statutory heir?

[00:24:01] Speaker 04:
I do.

[00:24:01] Speaker 04:
OK.

[00:24:02] Speaker 01:
So now talk about the consequence of that.

[00:24:05] Speaker 04:
OK.

[00:24:07] Speaker 04:
Well, here's the consequence.

[00:24:10] Speaker 04:
There are several consequences.

[00:24:11] Speaker 04:
One is, section 203 describes who?

[00:24:16] Speaker 04:
can exercise the right of termination, how they exercise it, and when they can exercise it.

[00:24:22] Speaker 04:
And Aquarium Foundation failed all three of those tests.

[00:24:25] Speaker 04:
First of all, they're not a statutory error.

[00:24:28] Speaker 01:
If you look at the... So then, if they're not a statutory error, why does it matter?

[00:24:32] Speaker 01:
Why does Section 203 come into play in the first place?

[00:24:35] Speaker 04:
Well, I think it's because the language of Section 203, what it refers to, it says that the

[00:24:44] Speaker 04:
that the termination interest is owned by, and in fact, when you go down the list of people it's owned, it uses the words entirely owned by.

[00:24:54] Speaker 04:
So the termination statute essentially carves off the termination rights for a copyright from what would otherwise be their normal owners.

[00:25:08] Speaker 04:
It refers to the termination right is owned exclusively by, and then it lists four different classes of statutory heirs.

[00:25:18] Speaker 04:
There has been some discussion about whether Reino should be abrogated, but here's the thing.

[00:25:27] Speaker 04:
When you look at abrogation, you would have to look at those three issues separately about the who, the how, and the when, and examine the abrogation issue on each one of those.

[00:25:37] Speaker 04:
The statute, when it refers to something being owned entirely by, that is clearly a preemption of state law, because normally state law would be what is applied in determining ownership.

[00:25:54] Speaker 01:
I guess I feel like I'm in a circular argument, because if they are not a statutory heir, then Section 203 doesn't apply.

[00:26:04] Speaker 01:
And we have a situation here where they're not a statutory heir.

[00:26:07] Speaker 01:
So it's not that the only termination rights in the world for copyright are governed by Section 203.

[00:26:13] Speaker 01:
My understanding of the statute is that statutory heirs' rights come under 203, and those are special carve-out as to the timing.

[00:26:25] Speaker 04:
Our argument is that Section 203, when you have an indefinite duration by a deceased author, that those termination rights are only

[00:26:42] Speaker 04:
only owned by, they are only owned exclusively by those statutory heirs.

[00:26:47] Speaker 03:
Could I ask you to keep in front of the microphones?

[00:26:50] Speaker 03:
Yes.

[00:26:51] Speaker 03:
Thank you.

[00:26:51] Speaker 03:
I know you're focusing your questions to my colleague, but we have to be able to hear and these things are recorded.

[00:26:59] Speaker 04:
Yeah, but what I said was is that the... I heard what you said.

[00:27:02] Speaker 03:
I'm just asking you to stay right there if you can.

[00:27:05] Speaker 04:
Yeah, and what I was... the use of the words entirely owned by

[00:27:11] Speaker 04:
indicates that those are the only classes of people who may exercise it at all.

[00:27:17] Speaker 04:
And then if you go beyond that, there were additional time considerations.

[00:27:22] Speaker 04:
You know, by the way, there never was a termination of the interest relative to this case.

[00:27:28] Speaker 04:
What they urged were, they said, well, there were two terminations.

[00:27:32] Speaker 04:
One is they sent out a bunch of DMCA notices.

[00:27:36] Speaker 04:
Okay, that's the first what they claim is a termination.

[00:27:39] Speaker 04:
Those DMCA, they don't make any reference to the license.

[00:27:43] Speaker 04:
At that time, Aquarian was unaware of a license.

[00:27:46] Speaker 04:
When they heard about it, they disputed its existence.

[00:27:50] Speaker 04:
So they've never actually terminated that license.

[00:27:53] Speaker 04:
What we then find is that in two years into the litigation, after Aquarian hired its present counsel, they promptly sent out the notice purporting to terminate the rights.

[00:28:08] Speaker 04:
If that's effective, it's effective forward-looking.

[00:28:12] Speaker 04:
It wouldn't have affected any of the alleged infringements that were involved in this case.

[00:28:19] Speaker 01:
So if the DMCA notices aren't effective notice in some way, you're saying that there was a termination notice down the road.

[00:28:30] Speaker 01:
But that that notice didn't affect any of the claimed copyright infringements.

[00:28:34] Speaker 04:
Yeah, exactly.

[00:28:36] Speaker 04:
You can't retroactively terminate something.

[00:28:39] Speaker 04:
But even that notice was defective in that it didn't meet the timing requirements of Section 203.

[00:28:45] Speaker 01:
That's assuming 203 applies.

[00:28:48] Speaker 04:
Correct.

[00:28:48] Speaker 01:
But what if 203 doesn't apply?

[00:28:51] Speaker 01:
Then there's not a timing requirement, correct?

[00:28:54] Speaker 04:
There would not be, if it didn't apply at all, that's true.

[00:29:00] Speaker 04:
One thing though that needs to be said here about the termination.

[00:29:05] Speaker 04:
You know, they have urged that this was terminated by, well, let me put it to you this way.

[00:29:13] Speaker 04:
At the trial court level, there was never any argument that they had the right unilaterally to terminate a license of indefinite duration.

[00:29:26] Speaker 04:
It was never argued below.

[00:29:28] Speaker 04:
The first time you see that argument is in their appeal brief.

[00:29:33] Speaker 04:
Okay, at which time they brief Washington law and Colorado law.

[00:29:38] Speaker 04:
So no court, including the Judge Martinez, no court has yet weighed in on whether under state law there is the right to terminate a license without cause.

[00:29:56] Speaker 04:
that is of indefinite duration.

[00:29:58] Speaker 04:
It's not been determined.

[00:29:59] Speaker 04:
And I think that even when you look at the cases that Aquarians cited, even when you look at the Washington case they cited, they said that, well, whether or not it can be terminated, it's ultimately a question of the intention of the parties.

[00:30:16] Speaker 04:
OK, so here's the thing is, is when you raise it on appeal for the first time, what that also means is that the court never had the ability to weigh in on an issue like that about the intention of the parties of whether it would ever be terminable.

[00:30:31] Speaker 04:
And we never had that right either.

[00:30:32] Speaker 01:
So if we were to determine that the rights did transfer to Aquarian, your argument, as I understand it, is even so, the termination notice was either ineffective

[00:30:46] Speaker 01:
or not given or not litigated, which would require a remand?

[00:30:54] Speaker 04:
What I would say is that it was never terminated until the midst of the litigation.

[00:31:00] Speaker 04:
It was never signed.

[00:31:01] Speaker 04:
It was never referenced, the license, and factually.

[00:31:04] Speaker 04:
So that fact is in the record.

[00:31:08] Speaker 04:
But beyond that, there is an unresolved issue of state law, which is to say, when may a license be terminated?

[00:31:15] Speaker 04:
Can you just unilaterally?

[00:31:17] Speaker 04:
Here's the thing is, this was not just a unilateral gratuitous grant of a license.

[00:31:23] Speaker 04:
It was a grant for consideration because it required the sharing of revenues that were going to be derived from it.

[00:31:31] Speaker 01:
Do you think we would look at that issue de novo?

[00:31:37] Speaker 04:
Well, the question is under state law, which first of all, you'd have to decide, is this Colorado law or is this Washington law?

[00:31:46] Speaker 01:
In most cases, it doesn't matter.

[00:31:48] Speaker 01:
But let's just assume they were the same.

[00:31:50] Speaker 04:
OK, in Washington law, the case that was cited pertaining to termination of indefinite duration, the language of the court was that it would look to the intention of the parties.

[00:32:06] Speaker 04:
as to whether that was allowable or not.

[00:32:09] Speaker 04:
And that's a factual issue.

[00:32:11] Speaker 04:
Assuming it was intended to be terminable, there was no evidence of record in it.

[00:32:18] Speaker 04:
Nor could there be, because here's the simple truth.

[00:32:22] Speaker 04:
All of Aquarian's witnesses in this case arrived on the scene long after this license agreement was drafted.

[00:32:30] Speaker 04:
One other last closing remark I had to make.

[00:32:33] Speaker 03:
I don't know if you're not looking at the clock.

[00:32:38] Speaker 03:
You're two minutes and 30 seconds over your time.

[00:32:43] Speaker 03:
So would you like to wind up?

[00:32:45] Speaker 04:
Yes, sir.

[00:32:48] Speaker 04:
My wind up is this.

[00:32:51] Speaker 04:
By the way, Aquarian Resources, there's no evidence that they were used in the creation of this work.

[00:32:57] Speaker 04:
That was one of the findings of the court.

[00:32:59] Speaker 04:
And lastly, I would ask that the court take a close look at our claim for attorney's fees in this matter because

[00:33:06] Speaker 04:
There was evidence of manufactured evidence.

[00:33:09] Speaker 04:
There was evidence that was held back and so forth.

[00:33:13] Speaker 04:
So those are that does make this an extraordinary case.

[00:33:17] Speaker 04:
Thank you.

[00:33:18] Speaker 00:
Thank you, Council.

[00:33:22] Speaker 00:
All right, Mr. Billic.

[00:33:24] Speaker 00:
You had a minute left for rebuttal.

[00:33:27] Speaker 02:
Thank you.

[00:33:28] Speaker 02:
And thank you to my opposing counsel.

[00:33:30] Speaker 01:
Would you address the specific issue of whether the termination was effective just by sending the DMCA letters?

[00:33:40] Speaker 01:
And if those don't constitute termination, when was the termination, in your view?

[00:33:47] Speaker 02:
Well, for the reasons that we cited in our brief, the DMCA notices contain all the same hallmarks that you would need to refute a license.

[00:33:57] Speaker 01:
You have a swearing of affirmation, you have someone with... Well, you basically say, hey, quit violating my copyright.

[00:34:04] Speaker 02:
Correct.

[00:34:04] Speaker 01:
But you don't say, you might have a license, but I hereby terminate it.

[00:34:09] Speaker 01:
Those are kind of two different things.

[00:34:11] Speaker 02:
Agreed.

[00:34:12] Speaker 02:
But as post and council just pointed out, the church didn't know that a license was even out there.

[00:34:18] Speaker 02:
And so how could the church possibly have terminated this license when they had no knowledge of it?

[00:34:24] Speaker 02:
For all they know, they see some infringement.

[00:34:29] Speaker 01:
And so the other point I wanted to get to is- When is the first time that the church knows there's a license?

[00:34:40] Speaker 02:
It would have been and this is It would have been sometime in 2014 during the DMCA early years of the DMCA practice where I believe I don't have the record set up top my head, but I believe Mr. Lownes would when he responded to those notices he Said that hey, I have a license which to the church was

[00:35:08] Speaker 01:
outlandish because, again, their articles and bylaws prevent the... Understand, but did you then say... When did you say, not you, but the church say, no, you don't have a license?

[00:35:20] Speaker 01:
Or if we did, it's terminated.

[00:35:21] Speaker 01:
It's either invalid at the outset or if you had one, it's over.

[00:35:26] Speaker 01:
When did that come about?

[00:35:28] Speaker 02:
I don't know.

[00:35:29] Speaker 01:
Because he's suggesting it was after the alleged violation or the alleged infringement.

[00:35:36] Speaker 02:
It's it's certainly it certainly would have been after the after the infringement certainly Because again the church had no idea that this license even existed until Until the the infringement was spotted So council, I recognize that we gave your friend on the other side a little extra time So i'm going to give you one more minute so you can wrap up your rebuttal.

[00:36:02] Speaker 02:
Thank you

[00:36:04] Speaker 02:
The church is not a statutory heir under Section 203.

[00:36:08] Speaker 02:
And if you look to the legislative intent of Section 203, you'll see why that's an important point.

[00:36:15] Speaker 02:
And in the statute, the word only

[00:36:18] Speaker 02:
does not apply, does not exist.

[00:36:21] Speaker 02:
So to limit, to essentially elbow out the church from ever being able to terminate a license under the guise of 203, would essentially, in effect, would have granted Mr. Lowndes an assignment because it could never be terminated because Reverend Reinhardt had no heirs, that would be covered by the statue.

[00:36:45] Speaker 02:
And as far as – and this is another distinguishing point on this case versus Ranow.

[00:36:53] Speaker 02:
So if this court is not inclined to limit or abrogate Ranow…

[00:37:00] Speaker 02:
then another point to look at would be that Rannell, I believe, dealt with the author himself trying to terminate the license, which he, of course, is the author.

[00:37:09] Speaker 02:
He's covered by 203.

[00:37:10] Speaker 02:
The church, not a statutory heir, not covered by 203.

[00:37:17] Speaker 02:
And therefore, this is why this case should be treated differently.

[00:37:23] Speaker 02:
Last two points here.

[00:37:26] Speaker 02:
One, the work for hire, the church is entitled to the presumption under 17 UOC 201B as in boy that these works ought to be treated as works for hire unless a written instrument is provided signed by the two parties to be bound.

[00:37:46] Speaker 02:
We do not have that in this case.

[00:37:49] Speaker 02:
And so that presumption was not rebutted.

[00:37:52] Speaker 02:
Last thing.

[00:37:53] Speaker 02:
As to the the issue of the will and whether it was closed or not if you turn to The the docket and we have this cited in our brief as the as the docket as the record site In the will in the will docket it says order closing a state I don't know how else you can get clearer than that if When you're trying to wrap up probate.

[00:38:19] Speaker 02:
So with that, thank you very much for your time

[00:38:22] Speaker 00:
Thank you, Council.

[00:38:23] Speaker 00:
To both of you, the matter is now submitted.