GEE, Circuit Judge:

This patent infringement action has been brought by the inventor of a patented process against his former employer requesting reasonable royalties for the employer’s use of the process in his plant. The employer admits that he used the process and he neither contests the validity of plaintiff’s patent nor asserts any right to receive assignment of the patent arising from the contract of employment. Instead, the employer claims he had acquired a shop right or implied license to use the process and he therefore owes plaintiff nothing. We agree with the employer’s position and affirm the district court’s dismissal.

FACTS

The following representation of the facts is not contested by the parties. The story is one of an amicable and mutually beneficial employer-employee relationship turned sour. The employer is the Durham Pecan Company of Comanche, Texas. Since 1965, Durham has been in the business of processing pecans. Its operations include shelling the pecans, separating the pecan pieces into various gradations of size and packaging and selling the final product. The employee is Malcolm Wommack. In 1970, Wommack was hired by Durham as a general laborer in its pecan processing plant. His duties included unloading trucks, sweeping floors and moving supplies. His initial salary was $1.80 an hour, and, as might be expected from the nature of his employment, there were no agreements regarding any inventions he might produce.

And yet Wommack proved more curious and clever than expected. The process he ultimately patented indicates that he took a special interest in at least one aspect of pecan processing: the separation of worms from the shelled pecan pieces. The worm-like larvae of the pecan weevil found in pecans hatch there from eggs laid in the pecan shell while still on the tree. If the pecans are to be successfully marketed, these worms must be removed from the shelled pecan pieces. This is one of the stages of pecan processing performed by Durham.

For years Durham employees handpicked the worms from the shelled pecan pieces. The task was made difficult by the fact that the worms were the same color as the pecans. The ability of the handpickers to distinguish visually between the worms and the pecans was improved when, in 1973, Durham began using an ultraviolet (UV) light on its worm table. When illuminated by UY light, the worms and the pecan meat (inside of pecan exposed when broken) fluoresce while the pecan skin (outside of pecan separated from shell) does not. While this process improved the identification of the worms, it solved only part of the problem; it still was difficult for the hand-*964pickers to distinguish between the worms and the pecan meat, both of which fluoresced.

Such was the state of the art of worm picking in pecan processing when Wommack conceived his process. On roughly January 25, 1975, Wommack discovered that yellow food coloring blocked the fluorescence produced by the UV light. Working in his home, he conducted some simple experiments using his own equipment and materials.1 The resulting process required simply that the shelled pecan pieces be soaked in a weak solution of yellow food coloring and then dried. Because the yellow food coloring adhered to, or was absorbed by, the pecan pieces and not by the worms, the UV light now caused only the worms to fluoresce.

On February 17,1975, Wommack took the precaution of mailing to himself in a certified letter a complete description of the process he had developed. On the same day, Wommack informed his employer, W.M. Durham, who is also co-owner of Durham, that he had developed an improved method of distinguishing the worms from the pecans. Later that evening Mr. Durham accepted his employee’s invitation and visited Wommack’s home to observe a demonstration. After viewing some treated pecans under a black light, Mr. Durham concluded, “the meats were — had been dulled in color, the white sides were not as prominent, and yet the worms still fluoresced very well.” At this time, Wommack did not disclose to Mr. Durham how he had succeeded in dulling the fluorescence of the meats.

It is unclear what, if anything, transpired between February and May of 1975, but during the first week of May, Mr. Durham and Wommack again discussed the process and Wommack explained that the dulling of the pecan meats had been produced by yellow food coloring. Later that week, Durham received and began experimenting with a UV sorting machine. When pecan pieces are run through this machine under UV light, signal circuits interpret the electrical current received from photocells and accept or reject pieces of distinct luminosity. After the machine was installed and several tests were run with uncolored pecan pieces, Mr. Durham asked Wommack if he could use Wommack’s process. Wommack said, “Yes.” In only a few hours, Wommack and another Durham employee were able to bring Wommack’s homespun process to commercial application in the Durham plant.

When Wommack agreed to permit Durham to use his process, it also was agreed that Durham would loan to Wommack various pieces of sorting equipment for Wommaek’s home experiments. Several Durham employees transported this equipment to Wommack’s house. Based on his personal experiments and on the experience acquired by use of the process in the Durham plant, Wommack prepared a patent application. The application described in detail the process as it was then being used by Durham, including diagrams of Durham’s processing operations and equipment. On December 15, 1975, Wommack filed the application in his own name and at his own expense.2 He showed the application to Mr. Durham sometime during this month.

On January 26, 1976, Wommack was fired,3 at which point the relationship between Wommack and his former employer disintegrated rapidly. In February 1976, Wommack wrote a letter to Mr. Durham explaining, among other things, “since I have been let go from your Company, the word agreement that you could use my process in your plant, is no longer valid. We need a signed agreement on the use of my process.” Mr. Durham promptly responded by explaining his position, “[the process] was all yours. That all I wanted was the right to use this in my plant and you agreed to this.” In July of that year, Wommack demanded that if Durham continued to use the process without a signed agreement, he would take the matter to *965court. Durham continued using the process until sometime in July 1979. This action was brought on November 7, 1979.

This case was submitted to a jury in the form of 26 special verdicts, pursuant to Rule 49(a).4 The jury found the essential elements of patent infringement, all of which are no longer, and many of which were never, contested by defendant. Plaintiff had devised an improved method of removing worms from pecans (No. 24), the process was “novel” (No. 12), had “utility” (No. 13), and was “not obvious” (No. 14). Defendant’s use of the process had “infringed” several of plaintiff’s patent claims (Nos. 4-10). Nevertheless, the district court found in favor of defendant based on the finding, supported by the jury’s answers to five special verdicts discussed in detail below, that defendant had acquired a shop right. Because a shop right, also referred to as an implied license, is a complete defense to infringement, plaintiff’s claim was dismissed.

Shop Right or Implied License

That an invention was conceived or developed while the inventor was employed by another does not alone give the employer any right in the invention. The employer must show that a mutual understanding existed between the inventor and his employer that the inventor was employed to exercise his inventive faculties for the employer’s benefit. If the employer proves this, he acquires ownership of the patent. Durham, however, makes no such claim. Wommack was hired as a general laborer at $1.80 an hour.

Alternatively, if the employee was not hired to invent, the employer may establish a shop right. As commonly stated, a shop right will be found where the employer shows that the invention was developed by his employee during the employer’s time or with the assistance of the employer’s property or labor.5 A shop right permits the employer to use the subject of the patent for his own purposes, but not to sell or prohibit others from using it. The inventor retains a valid patent. This circuit has explained the shop right rule in the following manner:

The classic shop rights doctrine ordains that when an employee makes and reduces to practice an invention on his employer’s time, using his employer’s tools and the services of other employees, the employer is the recipient of an implied nonexclusive, royalty-free license.

Hobbs v. United States, 376 F.2d 488, 494 (5th Cir.1967).

Appellant places particular weight on the language in this and other cases6 indicating that the invention be “reduce[d] to practice” with the employer’s assistance. Although it is unclear precisely what the court in Hobbs intended by using this term in the shop right context, reduced to practice has a specific meaning in other patent law contexts. After examining the definition of reduction to practice adopted for purposes of patentability, we will evaluate its effect on the finding of a shop right.

*966An invention begins when the idea is conceived in the inventor’s mind. Its development may proceed to actual use, but it need not for the idea to be patentable. For this, the idea simply must be reduced to practice, which

includes not only [the] reduction [of an idea] to reality, but also sufficient testing or experimentation to demonstrate that the device as it exists possesses sufficient utility to justify a patent, i.e., that the invention is suitable for its intended purpose.

Stearns v. Beckman Instruments, Inc., 669 F.2d 1095, 1099 (5th Cir.1982) (emphasis omitted) (citing In Re Yarn Processing Patent Validity Litigation, 498 F.2d 271, 280 (5th Cir.1974)). Yet, reduction to practice does not require that the device embodying the invention be mechanically perfect or in a commercially marketable form. Kardulas v. Florida Machine Products Co., 438 F.2d 1118, 1121 (5th Cir.1971).

For the purposes of patentability, therefore, reduction to practice marks a distinct point of time in the development of a novel idea. In the shop right context, Hobbs tells us that “when an employee makes and reduces to practice an invention” with the assistance of his employer, the employer acquires a right to use. Appellant reads this to imply that if the employer’s assistance does not contribute to the reduction to practice of an idea — for example, if Worn-mack had reduced his idea to practice before obtaining Durham’s assistance — the employer cannot obtain a shop right.

This reading of the shop right rule apparently guided the trial of this case and its argument on appeal. It is, however, erroneous. The employer’s assistance in the reduction to practice of an idea is not necessary to his obtaining a shop right in the invention. An employee may reduce his idea to practice on his own time before showing his invention to his employer, and nevertheless subsequent employer-employee cooperation on the invention may be sufficient to confer a shop right upon the employer. In fact, the principal consideration in the shop right determination is not the employer’s assistance, but the employee’s consent.

A license to use the invention of an employee was first granted to an employer by the Supreme Court in McClurg, et a 1. v. Kingsland, et al, 42 U.S. (1 How.) 202, 11 L.Ed. 102 (1843). This decision, representing the origin of the modern shop right rule, was reached by extending the more general rule,

[t]hat if an inventor makes his discovery public, looks on, and permits others freely to use it, without objection or assertion of claim to the invention, of which the public might take notice; he abandons the inchoate right to the exclusive use of the invention, to which a patent would have entitled him, had it been applied for before such use....

Id. 42 U.S. (1 How.) at 207, quoting Pennock v. Dialogue, 27 U.S. (2 Peters) 1, 14-15, 7 L.Ed. 327 (1829) (also citing Shaw v. Cooper, 32 U.S. (7 Peters) 292, 8 L.Ed. 689 (1833); Grant v. Raymond, 31 U.S. (6 Peters) 218, 8 L.Ed. 376 (1832)). Unlike the rule described in Pennock, where the patentee’s consent to public use rendered his patent invalid, the Court in McClurg granted only a nonexclusive license to the employer. The employee-patentee retained a patent valid against all others. As explained by the Court in McClurg, the purpose of this limited rule was twofold:

[F]irst, to protect the person who has used the thing patented, by having purchased, constructed, or made the machine, & c. [sic], to which the invention is applied, from any liability to the patentee or his assignee. Second, to protect the rights, granted to the patentee, against any infringement by other persons.

Id. 42 U.S. (1 How.) at 208-09.

Although the decision in McClurg was compelled by statutory construction not relevant to our case today, based as it is on the equitable principles of a shop right,7 the *967rationale adopted by McClurg has been accepted by later courts as the first in the line of cases applying what is now understood as the shop right rule. See Gill, 160 U.S. 426, 431-33, 16 S.Ct. 322, 324-25, 40 L.Ed. 480 (1896). The best explanation of the rationale for and development of this rule was produced by the Supreme Court in Gill. In that case, the Court explained that,

[t]he principle [the shop right rule] is really an application or outgrowth of the law of estoppel in pais, by which a person looking on and assenting to that which he has power to prevent is held to be precluded ever afterwards from maintaining an action for damages.

160 U.S. at 430,16 S.Ct. at 324. This circuit has explained that the finding of a shop right involves two principal considerations:

First, it seems only fair that when an employee has used his employer’s time and equipment to make an invention, the employer should be able to use the device without paying a royalty. Second, under the doctrine of estoppel if an employee encourages his employer to use an invention, and then stands by and allows him to construct and operate the new device without making any claim for compensation or royalties, it would not be equitable to allow the employee later to assert a claim for royalties or other compensation.

Hobbs, 376 F.2d at 495 (citing Gill).

A court therefore must conduct more than merely a quantitative analysis of how much of the employer’s assistance was contributed to the process or during exactly what stage of development it was rendered. A shop right is an equitable defense to an infringement action, and the estoppel arising from the employee’s consent is the “ultimate fact to be proved.” Gill, 160 U.S. at 435, 16 S.Ct. at 326. The assistance of the employer “is important only as furnishing an item of evidence tending to show that the patentee consented to and encouraged [his employer] in making use of his devices.” Id.

Apparently Irreconcilable Jury Verdicts

At the close of the evidence of the present case, the jury was requested to answer 26 questions in the form of special verdicts. Thirteen of these verdicts asked the jury to determine, in various and often redundant forms, the nature of Wommack’s consent and the extent to which Wommack’s process had been developed prior to receiving assistance from Durham. We reproduce these verdicts in the margin.8

*968In reviewing the various jury verdicts relevant to the shop right finding, we respect our constitutional mandate to reconcile apparently inconsistent jury verdicts and thereby avoid vacating and remanding for a new trial: Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962); Alverez v. J. Ray McDermott & Co., Inc., 674 F.2d 1037, 1040 (5th Cir.1982). Although upon a first reading the answers to several verdicts appear to conflict with each other,9 we find that when all of the verdicts are read in light of the uncontradicted evidence, there exists no irreconcilable conflict. This reading of the verdicts supports the finding that Wommack’s conduct and Durham’s assistance gave rise to a shop right.

As we have demonstrated above, an idea may pass through several stages as it develops from inventor’s conception to ultimate commercial use. The law has identified a particular intermediary stage as marking its reduction to practice. While this stage is critical for purposes of patentability, it is not for the shop right determination. The district court therefore was correct in relying on the answers to verdict numbers 19, 25 and 26 — finding that Durham’s property and employees assisted in “putting [the process] into ... practical use” and “developing] or put[ting it] into practical form”— to support its finding that Durham assisted in the development of the process. We need not, as appellant contends, hold that verdict numbers 16,17 and 18 — finding that Wommack “reduced the process to practical application” without Durham’s assistance— conflict with any other verdicts. All of these findings10 are supported by the uncontradicted evidence that Wommack conceived, experimented with and perhaps reduced to practice his process without Durham’s assistance, and that Durham’s resources were used to develop the process further, ultimately to a commercially useable form.11

*969It must be recalled that the employer’s assistance “is important only as furnishing an item of evidence tending to show that the patentee consented to and encouraged [his employer] in making use of his device.” Gill, 160 U.S. at 435, 16 S.Ct. at 326. The estoppel, arising from the patentee’s consent, is the “ultimate fact to be proved.” Id. Such consent may be proven in more than one way:

[T]he most conclusive evidence of such consent is an express agreement or license, ... but it may also be shown by parol testimony, or by conduct on the part of the patentee proving acquiescence on his part in the use of his invention. The fact that he made use of the time and tools of his employer, put at his service for the purpose, raises either an inference that the work was done for the benefit of such employer, or an implication of bad faith on the patentee’s part in claiming the fruits of labor which technically he had no right to enlist in his service.

Id. In the present case, the special verdicts, supported by the uncontradicted evidence, permit only one reasonable inference: Wommack consented to his employer’s use in return for Durham’s assistance in developing his process to commercial use.

First, we have the evidence of Wommack’s objective conduct. Wommack invited Mr. Durham to his house to demonstrate his process. Later, he permitted Durham to adapt its processing operations to accommodate his process. Principally through his efforts, Durham succeeded in reducing his process to commercial application.12 In addition, Wommack accepted the loan of Durham’s equipment in order to conduct his home experiments and relied heavily upon the experience acquired in the Durham plant when preparing his patent application. Wommack permitted Durham to use his process for a full year without any claim for compensation.

If Wommack’s objective conduct were the only evidence of consent available in this case, we nevertheless would be persuaded to infer a shop right. Such conduct is sufficient to permit the inference that the work performed in the Durham plant was done for Durham’s benefit. A shop right has often been found where the employee merely makes use of his employer’s property or labor to develop his process. Such conduct can provide sufficient evidence of consent. See Gill, 160 U.S. at 429-34, 16 S.Ct. at 324-25 and cases cited therein.

In the present case, however, we have more direct evidence of consent: Wommack’s verbal agreement that Durham could use his process. The evidence supporting this theory of a shop right is more like that of an implied license. In fact, a shop right is nothing more than a special case of implied license arising where the consent, or agreement, is inferred from the employee’s use of his employer’s resources. Direct evidence of an agreement between the parties need not be found. Thus the circumstances giving rise to a shop right are not limited to those in which one can find an implied license.13 But, as in the present case, where the employer’s assistance is provided with the knowledge of the employee’s consent, the theories of implied license and shop right merge. The underlying considerations are roughly the same.

*970In the present case, in addition to the inferences drawn from Wommack’s conduct and Durham’s assistance, we have more direct evidence of consent. The jury found that Wommack “acquiesced” in Durham’s use of the process (No. 20),14 which finding is supported by Wommack’s letters to Mr. Durham, the stipulated facts in the pre-trial order, and Wommack’s testimony at trial.15 Wommack’s consent was given without time limitation.16

The only evidence before the court tending to qualify the nature of Wommack’s consent is his own testimony, “when [Mr. Durham] asked me there in the picking room if he could use my process, I told him yes, but I knew that he was going to have to pay me to. use it whenever he satisfied his self.”17 Nevertheless, an unarticulated expectation of compensation will not defeat the estoppel effect of a shop right. Wommack neither alleged nor presented any evidence that he asked for or was promised any monetary compensation in return for his consent to Durham’s use. Especially where an employee shows himself to be sensitive to the need to protect his rights to a potentially patentable idea, as Wommack clearly showed himself,18 we are not reluctant to give full effect to the consent given to his employer.

*971The uncontradicted evidence in this case permits the inference that behind Wommack’s express consent was an implicit exchange of consideration. When Wommack first consented to and assisted in Durham’s use of his process, he had nothing more than an idea he hoped to patent and sell. The patentability of the process, the manner in which it would be applied in a processing plant and the profitability of such application was uncertain. Yet, the exchange of benefits was certain. Wommack received the opportunity to test his process commercially and to use Durham’s equipment in his home for his own experiments. Wommack benefitted from this experience in preparing his patent application; he also may have hoped that proven commercial success in the Durham plant would facilitate the sale of his process to other plants.19 Durham offered this assistance, at its own risk, with the only possible hope that it would be permitted the continued use of that process.20

Having read certain apparently inconsistent jury verdicts in the only manner permitted by the uncontradicted evidence, and having concluded that Durham’s assistance need not have been rendered prior to the reduction to practice, we find the resolution of this case clear. Wommack admitted his consent and his employer’s assistance in circumstances that support the finding of a shop right. We therefore affirm the dismissal of plaintiff’s action for infringement.

AFFIRMED.

ORDER

EDWARD C. REED, JR., District Judge.

This case involves the disputed ownership of the Mustang Ranch’s service marks after the government seized that brothel in conjunction with criminal proceedings *1054against the former owner. We now enter a written version of the order we issued from the bench on December 15, 2006 (# 271). Changes from the decision on the record have been limited to very minor formatting and grammatical edits necessary to render a written decision. These changes in no way effect the substance of any part of the decision.

# sfc 'Jfi ‡

This is the time set for the Court to announce its decision in this case.

Plaintiffs David and Ingrid Burgess and Sherwin M. Fellen filed their Complaint (# 2) on December 23, 2003, and a Second Amended Complaint (# 42) on April 26, 2004, seeking a declaratory judgment that Mr. Fellen was the owner of the Mustang Ranch service mark, and that the Burgess-es had the exclusive right to use that mark in conjunction with prostitution.

Defendants L. Lance Gilman; Cash Administration Services, LLC; and Cash Management Services, LLC, answered (# 26) the Second Amended Complaint (# 42) on February 20, 2004. Defendant Cash Processing Services (“CPS”) answered and filed a counterclaim for infringement and unfair competition under the Lanham Act on May 20, 2004.

Plaintiffs filed a Third Amended Complaint (# 114), on January 28, 2005, and Cash Processing Services again answered and counter-claimed (# 121) on February 18, 2005. The parties have stipulated that Mr. Fellen, subject to certain conditions stated in the stipulation, is dismissed from the action.

Cash Processing Services filed a motion for a preliminary injunction cn July 14, 2004. (# 54.) Judge Hagen denied Defendants’ motion on September 27, 2004. (#82.) Plaintiff then filed motions for a temporary restraining order and a preliminary injunction cn December 21, 2004 (## 94, 95), and CPS renewed its motion for a preliminary injunction shortly thereafter on December 27, 2004. (# 98.) On December 30, 2004, Judge Hagen granted Plaintiffs’ motion for a preliminary injunction and denied Defendants’ renewed motion. (# 101.) Defendants filed a motion for reconsideration on January 18, 2005 (# 109), which Judge Hagen denied on January 25, 2005 (# 113).

Defendants filed a Notice of Appeal of these decisions on February 2, 2005 (# 115), and the Ninth Circuit affirmed in a memorandum decision on June 17, 2005. Burgess v. Gilman, 134 Fed.Appx. 200 (9th Cir.2005). It is likely that this appeal explains why this case has been pending so long. It sounds like this case has been here over three years, and it has, but a considerable portion of that time can be explained by the appeal.

The Plaintiff, on the one hand, and Cash Asset Management and CPS on the other, filed motions, being cross-motions for summary judgment. (## 149, 150, 151.) We denied all of these motions on February 23, 2006. (# 198.)

Defendants then filed a motion to dissolve the preliminary injunction, on July 20, 2006. (# 222.) On November 13, 2006, the parties stipulated to resolve this motion at the same time that the merits were resolved. They also agreed that all claims for damages were to be dismissed, leaving the remaining claims for declaratory relief, injunctive relief, and attorneys fees and costs. (## 258, 259.)

A bench trial was held before this Court on December 12 through 14, 2006.

I. Permanent Injunction

A party seeking a permanent injunction in these circumstances must meet a four-factor test, demonstrating:

(1) that it has suffered an irreparable injury;

*1055(2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;

(3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and

(4) that the public interest would not be disserved by a permanent injunction.

eBay Inc. v. MercExchange, L.L.C., —- U.S. -, -, 126 S.Ct. 1837, 1839, 164 L.Ed.2d 641 (2006). “[Ojnce the plaintiff establishes a likelihood of confusion, it is ordinarily presumed that the plaintiff will suffer irreparable harm if injunctive relief is not granted.”, Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 612 n. 3 (9th Cir.1989).

The evidence is virtually undisputed that there will be confusion if both parties seek to use the mark at issue in this case. There was evidence presented at the trial that there has been actual confusion between Plaintiffs’ and Defendants’ operations respecting emergency calls to the County, that independent contractors have been confused, and that cab drivers bringing customers to the establishments have been confused.

As Judge Hagen stated previously in this case: “It almost goes without saying that two brothel operations in the immediate vicinity of each other using the same name will result in confusion for customers and others.”

II. Transfers of the Mark .

Where a business as a whole. is transferred without mentioning the transfer of the mark, it is presumed that the mark and good will associated with that mark are transferred as well. American Dirigold Corp. v. Dirigold, Metals Corp., 125 F.2d 446, 453 (6th Cir.1942); J. Thomas McCarthy, 2 McCarthy on Trademarks and Unfair Competition § 18:37 n. 1 (4th ed.2006) (hereinafter “McCarthy § ”) (citing cases). The same rule applies where transfers are involuntary. See id. § 18:37 at n. 6; American Dirigold, 125 F.2d at 453.

If the former owner of the brothel, A.G.E., owned the Mustang Ranch mark, there appears to be little basis to conclude that the Department of the Treasury did not receive the Mustang Ranch mark when A.G.E. forfeited the entire business. Neither, so long as A.G.E. owned the mark and the Department of the Treasury did not very quickly abandon it, is there a basis to conclude that the Bureau of Land Management did not receive the mark implicitly from the Department of the Treasury merely because the mark was not mentioned in the inter-agency agreement, which transferred jurisdiction over the property.

The registration of a fictitious business name with the county does not control the ownership of the mark. See 1 McCarthy § 9:8 (“The vast majority of courts have stated that the acceptance of a corporate name by a state agency will be given no judicial weight at all in litigation over rights to the name.”); cf. Committee for Idaho’s High Desert, Inc., v. Yost, 92 F.3d 814 (9th Cir.1996) (the fact that a non-profit had inadvertently lost its corporate status was irrelevant to issue of abandonment of that group’s name as a mark).

III. Rule Against Assignments In Gross

Next we deal with the service mark assignment at the government’s auction. We, here, address the rule against assignments in gross. A trademark, unlike a patent or copyright, is not “a right in gross or at large.” United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 63 L.Ed. 141 (1918). In United Drug, the Supreme Court explained the common law rule against assignments of a mark in gross:

*1056There is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is employed. The law of trade-marks is but a part of the broader law of unfair competition; the right to .a particular mark grows out of its use, not its mere adoption; its function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another’s product as his; and it is not the subject of property except in connection with an existing business.

Id. Federal courts have continued to apply this rule under the 1946 Lanham Act, and it “is well settled ... that no rights [to a mark] can be transferred apart from the business with which the mark has been associated.” Mister Donut of America, Inc., v. Mr. Donut, Inc., 418 F.2d 838, 842 (9th Cir.1969).

Where a trademark is assigned as a mere term, without any particular associated good will, the assignment may be ineffective, causing the mark to remain with the purported assignor. See R & R Partners, Inc. v. Tovar, 447 F.Supp.2d 1141, 1149 (D.Nev.2006) (holding that an assignment from a government agency to a private firm of the mark “what happens here stays here” merely for the purpose of policing the mark was ineffective). Alternatively, the mark may be deemed involuntarily abandoned. See Defiance Button Machine Co. v. C & C Metal Products Corp., 759 F.2d 1053, 1059 (2nd Cir.1985). One clear requirement that arises from this principle is that a mark cannot be assigned for use by a business with fundamentally dissimilar goods and services. Id.

While an assignment of a mark must always carry with it the accumulated good will associated with it, the rule against assignments in gross (or “naked” assignments) has not been interpreted in recent cases to require the transfer of all or, in some cases, any specific company assets other than the business’ good will. See Matter of Roman Cleanser Co., 802 F.2d 207, 209 (6th Cir.1986) (holding that the transfer of machinery to make a cleanser was not necessary to make assignment of the trademark valid; it was enough that the formula and customer lists were transferred); Defiance Button Machine Co., 759 F.2d at 1059 (“[A] trademark may be validly transferred without the simultaneous transfer of any tangible assets, as long as the recipient continues to produce goods of the same quality and nature previously associated with the mark.”); The Money Store v. Harriscorp Finance, Inc., 689 F.2d 666, 676 (7th Cir.1982) (holding that as long as the goodwill of the business passes to the assignee, “it is not necessary to the continuing validity of the mark that tangible assets of the assignor pass to the assignee”); PepsiCo, Inc. v. Grapette Co., 416 F.2d 285, 288 (8th Cir.1969) (“Inherent in the rules involving the assignment of a trademark is the recognition of protection against consumer deception. Basic to this concept is the proposition that any assignment of a trademark and its goodwill (with or without tangibles or intangibles assigned ) requires the mark itself be used by the assignee on a product having substantially the same characteristics.”) (emphasis added); Sterling Brewers, Inc. v. Schenley Industries, Inc., 58 C.C.P.A. 1172, 441 F.2d 675, 680 (Ct.Cust.App.1971) (finding no problem with assigning beer mark to one business entity and brewery assets to another). But see La Fayette Brewery v. Rock Island Brewing Co., 24 C.C.P.A. 925, 87 F.2d 489 (Ct.Cust.App.1937) (coming to the opposite conclusion on similar facts).

In the Ninth Circuit, “[i]t is not necessary that the entire business or its *1057tangible assets be transferred; it is the goodwill of the business that must accompany the mark.” E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1289 (9th Cir.1992).

In a case involving an alleged voluntary abandonment prior to an assignment, the Ninth Circuit has also very recently cautioned that nothing prevents a business from liquidating the majority of its assets before assigning a mark and eventually closing. Electro Source v. Brandess-Kalt-Aetna Group, Inc., 458 F.3d 931, 939 (9th Cir.2006). The Electro Source court based its holding in part on the finding that the liquidation in that case was itself a bona fide use of the mark where the trademarked good itself was being sold, but the court also went on to observe that “[i]t is not unusual for a troubled or failing business to sell and assign its trademark, along with the corresponding goodwill and the remaining business,” id. at 941. The court saw no problem with that. While Electro Source did not explicitly deal with involuntary abandonment and the rule against assignments in gross, it does demonstrate that a business can be shut down and the business’ mark will nevertheless live on after the assignment.

If the federal courts have generally applied a less strict version of the rule against assignments in gross than the old but frequently cited language of United Drug might suggest, this can in part be chalked up to the text of the Lanham Act, enacted in 1946, which provides for assignments and states that business good will is the corpus of the transfer without mentioning other business assets. See 15 U.S.C. § 1060(b) (“A registered mark or a mark for which an application to register has been filed sháll be assignable with the good will of the business in which the mark is used, or with that part of the good will of the business connected with the use of and symbolized by the mark.”).

While “good will” is defined in terms of a particular business, it has long been defined independent of that business’ assets. McCarthy’s treatise, for example, quotes Justice Story’s nineteenth-century definition of good will, which reads:

The advantage or benefit, which is acquired by an establishment, beyond the mere value of the capital stock, funds, or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position, or common celebrity, or reputation, for skill and/or affluence, or punctuality, or from other practical circumstances, or necessities, or even from ancient partialities or prejudices.

1 McCarthy § 2:19 (4th ed.) (quoting Story oh Partnership § 99 (6th ed. 1868) (emphasis added)). In a tax case, the Supreme Court has more recently stated: “Although the definition of goodwill has taken different forms over the years, the shorthand description of good-will as ‘the expectancy of continued patronage,’ provides a useful label with which to identify the total of all the imponderable qualities that attract customers to the business.” Newark Morning Ledger Co. v. United States, 507 U.S. 546, 555, 113 S.Ct. 1670, 123 L.Ed.2d 288 (1993).

Plaintiffs’ trial brief argues that the court should be guided by the principle that a service mark, unlike a copyright or a patent, is not “property.” At least one well-known commentator on trademarks, Professor Mark Lemley of Stanford Law School, has simultaneously recognized and lamented the “propertizing” trend towards greater assignability of trade and service marks, writing:

We give protection to trademarks for one basic reason: to enable the public to identify easily a particular product from *1058a particular source.... [T]he economic case for brands and advertising is undone to the extent that trademarks are used in ways that affirmatively confuse consumers. Vesting trademarks with the mantle of property — and giving them some of the indicia of real property, such as free transferability — defeats the purpose of linking trademarks to goods in the first place.

Mark A. Lemley, The Modern Lanham Act and the Death of Common Sense, 108 Yale L.J. 1687, 1695-6 (1999).1

For its part, however, the Ninth Circuit has identified the “two cornerstone interests” in federal trademark law as, one, “protection of the public through source identification of goods,” and two, “protection of the ... investment in the trademark.” Electro Source v. Brandess-Kalt-Aetna Group, Inc., 458 F.3d 931, 941 (9th Cir.2006); see also New Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302, 305 (9th Cir.1992) (stating that the Lanham Act protects against the unfair use of a rival’s mark where “the infringer capitalizes on the investment of time, money and resources of his competitor”).

It should be observed that protecting business X from business Y’s unfair profit from X’s good will is a rationale for trademarks that is related to, but nevertheless independent of protection of consumers from confusion. X can suffer an injury to its accumulated good will even if both X and Y have their identical goods produced by factory Z. In HMH Pub. Co., Inc. v. Brincat, 504 F.2d 713 (9th Cir.1974), the Ninth Circuit colorfully stated:

Trademark infringement is a peculiarly complex area of the law. Its hallmarks are doctrinal confusion, conflicting results, and judicial prolixity. The source of this difficulty is that each case involves an effort to achieve three distinct objectives which, to a degree, are in conflict. These are: (1) to protect consumers from being misled as to the enterprise, or enterprises, from which the goods or services emanate or with which they are associated; (2) to prevent an impairment of the value of the enterprise which owns the trademark; and (3) to achieve these ends in a manner consistent with the objectives of free competition. The third objective dictates a degree of restraint in the pursuit of the first two; the second can be pushed beyond the reasonable needs of the first; and each requires for its proper implementation the exercise of judicial intuition supported, to the extent possible, by relevant facts.

Id. at 716.

“Prostitution services” remain the essence of the business, and as we have already noted in denying summary judgment, there is strong evidence of fame in the Mustang Ranch mark (e.g., the inflated value of the auctioned assets such as the hot tub health certificate), which would appear to translate into business good will. The buildings would also appear to represent a core aspect of the business. Mr. *1059Brandt and Mr. Gilman both testified that the octagon, the parlor, the bar, and the tubs constitute an important part of the atmosphere or aura of Mustang Ranch business. Mr. Brandt testified that the trademark was tied to the buildings and the guard tower. Mr. Gilman also testified that the pink buildings’ spoke design and signage were all associated with the goodwill of the business, and moving these things to a new location was all that was necessary. The buildings, of course, were sold with the trademark at the eBay auction.

While source identification and protection of consumers against deception is a rationale for trademark law, recent cases make clear that it is not the only rationale. In addition, recent cases have not held that protection against consumer deception implies continuity of tangible business assets. See Defiance Button, 759 F.2d at 1060 (“As long as the mark has significant remaining value and the owner intends to use it in connection with substantially the same business or service, the public is not deceived.”).

We conclude, therefore, that there was no assignment in gross in this case and that, hence, the government’s assignment to Mr. Gilman did not constitute an involuntary abandonment of the mark. Additional cases cited by the defendants at oral argument add some support to these conclusions. These cases announce a test: whether the assets purchased with the name are sufficient to enable the purchaser to go on in real continuity with the prior business, or whether the assets acquired would serve to recreate a unique atmosphere of the former business to identify the new business with it. See G’s Bottoms Up Social Club v. F.P.M. Industries, Inc., 574 F.Supp. 1490, 1496 (D.C.N.Y.1983); Merry Hull & Co. v. Hi-Line Co., 243 F.Supp. 45, 51-52 (D.C.N.Y.1965); American Sleek Craft, Inc. v. Nescher, 131 B.R. 991 (D.Ariz.1991). The acquisition of the unique Mustang Ranch buildings appears to substantially meet these sorts of tests.

IV. Voluntary Abandonment

The Lanham Act provides:

A mark shall be deemed to be “abandoned” ...:

(1) When its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for 3 consecutive years shall be prima facie evidence of abandonment. “Use” of a mark means the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in a mark.

15 U.S.C. § 1127. “Abandonment of a trademark, being in the nature of a forfeiture, must be strictly proved.” Prudential Ins. Co. of America v. Gibraltar Fin. Corp. of Cal., 694 F.2d 1150, 1156 (9th Cir.1982). The Ninth Circuit has noted that it “has not spoken as to what ‘strictly proved’ means,” Electro Source, 458 F.3d at 935 n. 2, but other courts have applied a “clear and convincing evidence” standard as the burden of proof. Id.E.g. EH Yacht, LLC v. Egg Harbor, LLC, 84 F.Supp.2d 556, 564 (D.N.J.2000) (citing McCarthy § 17:12 (4th ed.1999)).

If the party alleging abandonment establishes a prima facie case of abandonment by showing a three-year period of non-use, then “a rebuttable presumption of abandonment is created.” Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 411 (9th Cir.1996); Star-Kist Foods, Inc. v. P.J. Rhodes & Co., 769 F.2d 1393, 1396 (9th Cir.1985). The presumption places a burden of production on the party contesting abandonment. Emergency One, Inc. v. Am. FireEagle Ltd., 228 F.3d 531, 535-37 (4th Cir.2000).

*1060In Abdul-Jabbar, the Ninth Circuit noted the following circuit split:

In some circuits, a showing of nonuse shifts the burden of persuasion to the trademark owner to show intent to resume; in others, including the Ninth, Second and Seventh, prima facie abandonment creates only a rebuttable presumption of abandonment.

85 F.3d at 411 n. 4. In other words, it appears that in the Ninth Circuit the burden of production is shifted, but not the burden of persuasion. Alternatively, one might conclude that there is no burden shifting, as the Ninth Circuit cases do not explicitly state that any burden is shifted, but it is hard to see what difference this might make.

“[A] prima facie case of abandonment may be rebutted by showing [ (1) ] valid reasons for non-use or [ (2) ] lack of intent” to resume use within the reasonably foreseeable future. Abdul-Jabbar, 85 F.3d at 411; Electro Source, 458 F.3d at 937-9.

When the alleged period of non-use is less than three years, no presumption of abandonment attaches and the challenging party must show by clear and convincing evidence (1) non-use and (2)intent not to resume use in the reasonably foreseeable future. Chere Amie, Inc. v. Windstar Apparel. Corp., 191 F.Supp.2d 343, 349 (S.D.N.Y., 2001) (citing Stetson v. Howard D. Wolf & Assocs., 955 F.2d 847, 850 (2nd Cir.1992)).

A. Intent to Resume Use in the Reasonably Foreseeable Future

Determining intent or valid reasons for nonuse requires a factual determination. See Star-Kist Foods, 769 F.2d at 1396. The Ninth Circuit has recently emphasized that intent only comes into play when non-use has been established, and that the Lanham Act requires “complete discontinuance of use” for abandonment. Electro Source, 458 F.3d at 937-9. In other words, a single legitimate use will rebut a claim of abandonment, and “a prospective declaration of intent to cease use in the future, made during a period of legitimate trademark use, does not meet the intent not to resume standard.” Id.

Intent not to resume use, unlike “intent to abandon,” is framed in the negative. Thus, the intent requirement for abandonment under the Lanham Act can be met by showing an intent only to “warehouse” a mark. See generally Silverman v. CBS Inc., 870 F.2d 40, 46 (2d Cir.1989) (discussing Congress’ choice of the “intent not to resume” standard over the intent to abandon standard).

Where there are future and successor interests in a property, the intent of all of the parties is relevant in evaluating whether there is intent to resume use. See EH Yacht LLC v. Egg Harbor, LLC, 84 F.Supp.2d 556, 566 (D.N.J.2000) (“[A] determination of intent not to resume use should be based on the totality of objective evidence of intent to resume use, not simply the intent of the registered trademark owner. Under this standard, so long as there is power to do so, any valid intent to resume use within a reasonable time becomes relevant.”).

We consider reasonableness to encompass the issue of excused non-use, which we discuss below.

B. Use

The kind of “use” that a party must demonstrate under section 1127 is “the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in a mark.” 15 U.S.C. § 1127. “Thus, neither promotional use of the mark on goods in a different course of trade nor mere token use eonsti-*1061tute ‘use’ under the Lanham Act.” Emergency One, 228 F.3d at 536.

In our prior order denying summary judgment, we found that the attempt to auction off the Mustang Ranch was not a bona-fide use, but that CPS made bona-fide use of the mark once it gained possession of the property. Thus, although we also found that a period of this non-use was excused, the period of overall non-use, excused or not, was from August of 1999 to October of 2003 — that is, a few months shy of four years.

The evidence presented at the bench trial gives us no reason to change these findings.

C. Excused Non-Use

In general, temporary suspension of use for reasons beyond the control of the mark owner is excused and does not lead to abandonment. See McCarthy § 17:16 (citing myriad cases and summarizing the rule as follows: “[a]bandonment does not result from a temporary forced withdrawal from the market due to causes such as war, prohibition, a labor strike, bankruptcy, import problems, unprofitable sales, being sued for patent infringement, or some other involuntary action.”). The Second Circuit, for example, found the presumption of. abandonment to be rebutted where New York stopped operating a water business due to a legislative decision, and where the state had sought continuously thereafter to sell the business with its goodwill and trademark. Saratoga Vichy Spring Co., Inc. v. Lehman, 625 F.2d 1037, 1044 (2nd Cir.1980).

We continue, as we did previously, to adopt Judge Hagen’s finding in his order granting the motion for a preliminary injunction that the government’s lack of control over the assets during the period of time between the Preliminary Order of Forfeiture (August 1999), and the Final Order of Forfeiture (June 28, 2001), presents a valid reason for nonuse during that period. (Order of Feb. 23, 2006, at 12 (# 198).) While the two years between the Final Order of Forfeiture and the eBay auction may seem like a substantial period of nonuse for a private company, it is certainly plausible that it would take the multi-faceted political bureaucracy charged with control of the Mustang Ranch at least two years to assess its assets, engage the public in a discussion over use, divide the assets, and sell the brothel portions to an entity that could operate a brothel. We note in that connection that June 29, 2001 was the date Joe Conforte’s conviction was affirmed by the Ninth Circuit, and the Final Order of Forfeiture on March 9, 2001 had been stayed pending appeal until that time.

The facts of this case present a unique situation, in that a government agency was asked to do something with an inherited business of ill repute, and doing just about anything with that business would generate raised eyebrows, public interest, and as the Court’s record has documented, substantial press interest. Certainly, many of these issues were beyond the agency’s control. On top of the political issues, the physical property appears also to have come with flooding issues as well as issues of asbestos, and although the parties have not discussed this fact, some amount of public comment in a planning process was likely required by FLPMA. 42 U.S.C. § 1712 (land use plans must be developed and maintained), § 1715 (acquisitions must be consistent with applicable land use plans).

Trademark law is usufructuary, and it does not allow for the “warehousing” of rights in a manner that is often perfectly acceptable in other areas of “intellectual property” law, such as patent law. See Emmpresa Cubana Del Tabaco v. Culbro Corp., 213 F.Supp.2d 247, 270 n. 38 *1062(S.D.N.Y.2002) (“Warehousing, which is impermissible, occurs when one hoards a mark for future use without concrete intent to use it in the future”)- The plausible reading of the current record is that (1) the government (for whatever reason) did not even know if it had the mark initially, and that (2) the government had discussions about various proposed plans for the property — e.g., a tourist attraction, a center for wild horses, a battered woman’s shelter, an area for flood control, and a habitat reserve — which may or may not have involved the continued existence of a brothel in other hands. The government seems to have been, in a word, simply indecisive.

Some courts have required “concrete plans” to resume use where a trademark appears to have been warehoused, and if this standard were to be considered applicable, it could be argued that the government did not have sufficiently “concrete” intent to resume use within the reasonably foreseeable future. See Silverman v. CBS Inc., 870 F.2d 40, 46 (2d Cir.1989) (stating that “without any concrete plans to resume use, a company could almost always assert truthfully that at some point, should conditions change, it would resume use of its mark,” but this would not show intent to resume use in the reasonably foreseeable future) (emphasis added). Silverman is, however, distinguishable in that, one, it did not deal with a government forfeiture, and as importantly, two, the period of non-use was a full 21 years. 870 F.2d at 46. By contrast, the period of non-use in this case was fairly short.

The government should probably not be penalized for pausing to reflect and deliberate when placed in this kind of unique situation. Further, when the general background principles of public ownership of real property are taken into account, it appears to be very unlikely that Congress would have intended the Lanham Act to compel a forfeiture in a case such as this one. If the law generally “abhors a forfeiture,” in most areas of both state and federal property law there are even greater, virtually insurmountable barriers to claiming that agents of the government have simply forfeit public property rights through inaction. See, e.g., United States v. Vasarajs, 908 F.2d 443, 446-47 & nn. 3, 4 (9th Cir.1990) (“prescriptive rights cannot be obtained against the federal government,” nor can “adverse possession ... be achieved against the federal government”); R.P. Davis, Acquisition by adverse possession or use of public property, 55 A.L.R.2d 554 § 2 (1957) (summarizing that “[w]ith respect to states, the great preponderance of authority is to the effect that, absent legislation so permitting, title to lands held by the state in any capacity cannot be obtained by adverse possession or prescription, as the state cannot be bound by the defaults or negligence of her officers or agents”). The rule against prescription against the government, of course, is in no way directly controlling, but it probably should at least inform how the Lanham Act is read in a unique case such as this one.

We do not find clear and convincing evidence has been adduced that shows the government had the intent not to resume use of the mark. The continuity of the Mustang Ranch in some form appears to have always been at least on the table. We conclude that indecision on the part of the government was excusable. The government was compelled to deal with multiple problems in inheriting this property, and a certain amount of deliberative indecision was warranted under the circumstances and may have been required by law.

V. Conclusion

We do not reach the issue of whether plaintiffs were the bona fide first users of *1063the mark after abandonment because we find that there was no abandonment. Further, having found there was no abandonment of the mark, it is not necessary for us to reach the issue of whether the waiver, executed by the plaintiffs contained in a right of way grant waived Plaintiffs’ claims to the mark.

The Court finds as follows with respect to the pending .motion for a permanent injunction:

(1)Plaintiff has caused CPS irreparable injury.

(2) Monetary damages are inadequate to compensate for this injury. Money damages are considered inadequate for a continuing wrong in a trademark case, and we so find here, because denying injunction relief would force the wronged party to endure continuing infringement and to bring successive suits for money damages. Foxtrap, Inc., v. Foxtrap, Inc., 671 F.2d 636, 639 (D.C.Cir.1982) (citing 2 McCarthy 328-29 (1st ed.1973)). The Laiiham Act also provides us with a power to grant injunctions according to the principles of equity, and upon such terms as we deem reasonable. 15 U.S.C. § 1116. We deem an injunction reasonable in this case.

(3) We further find that the balance of hardships tips in favor of CPS. The undisputed evidence is that Mr. Gilman has expended an extraordinary amount of money in anticipation of his planned use of the marks.

(4) We find that the public interest would not be disserved by a permanent injunction.

Therefore, Ms. Clerk, you will enter the orders of the Court as follows:

(1) The Court hereby declares that Defendant Cash Processing Services (“CPS”) has the right to use the trademarks Mustang Ranch, World- Famous Mustang Ranch, and World Famous Mustang Ranch Brothel. The Court further finds and declares that Plaintiffs do not have the right to" use these marks because such use would infringe on Defendant CPS’ legitimate right to use these marks.

(2) Defendants motion (#222) to dissolve the preliminary injunction entered in this case is GRANTED.

(3) Plaintiffs, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with any of them, and each of them, who receive actual notice of this order by personal service or otherwise, are hereby permanently enjoined and restrained from using the trademarks Mustang Ranch, World Famous Mustang Ranch, and World Famous Mustang Ranch Brothel.

The Clerk shall enter judgment accordingly. I thank counsel for your fine presentations. It presented a very interesting and challenging issue to us, which we have endeavored to fairly resolve.

The Court is now adjourned.

OPINION

SUTTON, Circuit Judge.

Albert Brumley, author of the gospel song “I’ll Fly Away,” assigned the song’s copyright to his son Robert. That is something federal copyright law allows. During the term of a copyright, an author has relatively free rein: He may use it himself, he may assign or sell it to someone else, or he may license it to another. See 17 U.S.C. § 201(d).

Robert may have thought that he would retain control of the copyright as long as it (and he) existed. Federal copyright law says otherwise. One of “the more unusual provisions in the Copyright Act,” 3 Patry on Copyright § 7:42 (2016), allows songwriters (or their descendants) to terminate the songwriter’s assignment of a copyright to another party, see 17 U.S.C. §§ 203, 304(c). Termination allows the descendants to reap anew the profits from the copyright, a fruitful option if the author’s work increases in value over time. Four of Brumley’s six children now attempt to terminate his assignment to their brother, Robert. Because the four children have complied with the Copyright Act in exercising this right, we (like the district court) uphold their termination.

*928I.

A.

. Congress enacted the first relevant Copyright Act in 1909. See Pub.L. No. 60-349, 35 Stat. 1075 (1909). The Act established an initial copyright term of twenty-eight years and allowed an author to renew the copyright for an additional twenty-eight years. Id. §§ 22, 23. If the author sold the copyright to someone else, only the author or his surviving spouse and children had the power to renew the copyright. That meant that, if “the author s[old] his copyright outright to a publisher for a comparatively small sum” and “the work prove[d] to be a great success,” the author had the “exclusive right ... to take the renewal term.” H.R.Rep. No. GO-2222, at 14 (1909); see Stewart v. Abend, 495 U.S. 207, 218-19, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990).

But could an author bargain away this “exclusive” right to renewal? Yes, the Supreme Court answered, because “the Copyright Act of 1909 does not nullify agreements by authors to assign their renewal interests.” Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 657, 63 S.Ct. 773, 87 L.Ed. 1055 (1943). And that was true even if the author sold or assigned the renewal right at the same time that he assigned the copyright during the initial copyright term. Id. at 645-47, 63 S.Ct. 773.

Congress had other ideas. It authorized the Copyright Office of the Library of Congress to prepare a study. See Copyright Office, Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law at ix (1961). The report concluded that the 1909 renewal provision was designed to allow the renewal copyright to revert to an author so that he “could negotiate new contracts for the further exploitation of the work.” Id. at 53. But the renewal provision had “largely failed to accomplish its primary purpose” and resulted in much “confusion and litigation.” Id. The report laid out an assortment of possible solutions, including placing “certain limitations on the transfer of all rights.” Id. at 93.

Through the 1976 Act, effective in 1978, Congress did just that. See Pub.L. No. 94-553, 90 Stat. 2541 (1976). It created a “termination right” that allows an author to undo a prior transfer of his copyright and recapture all interests in the copyright for himself. If the work was transferred in 1978 or later, the author could terminate the transfer between thirty-five and forty years after the date the copyright was assigned to a third party. See 17 U.S.C. § 203(a)(3). If the work was copyrighted and transferred before 1978,- however, a different set of provisions kicked in, with a timeline tied to the date the copyright was obtained. The author (or his successors as provided by the Act) could terminate between fifty-six and sixty-one years after the work was copyrighted, or for a period of five years after January 1, 1978, whichever was later. Id. § -304(c)(3).

At the same time it created these termination rights, the 1976 Act abolished the copyright renewal provision. See id. § 302(a). That meant a copyright would last longer than it would under the 1909 Act, but it could never be renewed. Congress replaced the confusing and misinterpreted renewal provision with a new one: termination.

In 1998, Congress increased the length of the copyright term by an additional twenty years and provided a tandem termination right. See Pub.L. No. 105-298, § 102, 112 Stat. 2827, 2827-28 (1998). This termination right mirrors the 1976 Act’s application to pre-1978 transfers. It merely provides an additional term during which the author may terminate: between seventy-five and eighty years after the *929copyright was obtained. 17 U.S.C. § 304(d)(2).

Through the 1976 and 1998 Acts, Congress hoped to succeed where the 1909 Act had failed. Termination would help “relieve authors of the consequences of ill-advised and unremunerative grants that had been made before the author had a fair opportunity to appreciate the true value of his work product.” Mills Music, Inc. v. Snyder, 469 U.S. 153, 172-73, 105 S.Ct. 638, 83 L.Ed.2d 556 (1985). Say a no-name author writes a quirky tale about a boy wizard with a scar on his forehead and assigns the rights for a song to a big publisher. Either § 203 or § 304 (depending on when she wrote and transferred the work) would allow her to get the rights back and renegotiate a new contract for better returns.

All agree that this is a one-shot deal. An author may exercise this termination right just once. Say a nun writes a memoir about her life — becoming a governess for six children, falling in love with their widowed father, and escaping from Nazi-occupied Austria — and assigns the rights to the story for a pittance. Under current law, she could terminate the assignment of the memoir after the story formed the basis for a successful Broadway musical. But she could not terminate a second assignment of the memoir if the story later became the basis for an even more successful movie.

B.

In the late 1920s, Albert Brumley composed the song “I’ll Fly Away,” a gospel spiritual celebrating death and resurrection, while he worked in the Oklahoma cotton fields. “Some glad morning when this life is o’er / I’ll fly away / To a home on God’s celestial shore / I’ll fly away,” the song goes. Johnny Cash and Alison Krauss have covered the song, as have many others, and it can be heard on many a Sunday morning. Brumley sold his creation to a music publishing company, which copyrighted the song in 1932. In the late 1940s, Brumley purchased the company, bringing the song and its copyright home. Brumley at that point started a music publishing company of his own called “Albert E. Brumley & Sons.” R. 201 at 2. In 1975, Brumley and his wife Goldie sold Brumley & Sons (fittingly) to two of his sons, William and Robert, for $100,000, “assign[ing] and transfer[ring] ... all of [the couple’s] right title and interest” in the song. App. 73.

Brumley died in 1977. Robert and William apparently sought to shore up their status as owners of the song’s copyright. In May 1979, they obtained from Goldie a “BILL OF SALE AND ASSIGNMENT.” Id. at 76. It stated that “in consideration of One Dollar ... and other good and valuable considerations,” Goldie “assigned and transferred ... all the right, title and interest ... in ... all rights to obtain renewals or copyrights in the future upon Works written or composed by ... Albert E. Brumley” to Brumley & Sons. Id. Robert bought out William’s interest in Brum-ley & Sons in 1986 for $246,500, becoming the sole owner of the copyright.

Goldie died in 1988. Twenty years later, a sibling spat arose, tied (of all things) to the royalties from a gospel song. In April 2008, Albert, Jr., Betty, Jackson, and Thomas — four of Brumley’s children— served a termination notice on their brother, Robert, to share in the lucrative rights in “I’ll Fly Away,” which appears to generate roughly $300,000 a year in royalties. The idea was to cut off Robert’s exclusive rights to the copyright and to permit all of the siblings to profit equally from the song. The termination notice purported to undo the 1975 assignment in which Brum-ley and his wife sold Brumley & Sons— and with it, the rights to the song — to *930William and Robert. The four siblings recorded the termination notice with the U.S. Copyright Office shortly after serving it on Robert. (Some of the siblings have since passed away, but their spouses and children have carried on with the litigation.)

In December 2008, the four siblings filed this lawsuit against Robert and Brumley & Sons, seeking a declaration that their termination notice was effective. Robert and the company responded with two key defenses: (1) Albert’s song was a “work made for hire,” which is not eligible for termination, 17 U.S.C. § 304(c); and (2) Goldie relinquished any termination rights in the 1979 assignment to Robert and William. The district court ruled as a matter of law that Goldie did not extinguish the family’s termination rights in 1979 and presided over a jury trial on the work-made-for-hire question. After the jury ruled in favor of the four siblings, Robert and the company appealed, challenging certain evidentiary rulings. Our court reversed and required a new trial. Brumley v. Albert E. Brumley & Sons, Inc., 727 F.3d 574, 580 (6th Cir.2013). The second trial ended the same way — in favor of the four siblings. Robert appealed, challenging the district court’s interpretation of the 1979 assignment but not the jury’s finding that “I’ll Fly Away” was not a work made for hire.

II.

Because Albert transferred “I’ll Fly Away” before 1978, the termination provisions in § 304 of the Copyright Act govern. “In the case of any copyright subsisting in either its first or renewal term on January 1, 1978,” they say, “the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978, ... otherwise than by will, is subject to termination.” 17 U.S.C. § 304(c); see id. § 304(d).

The termination provision has two salient features. One is that, so long as the author never exercised the termination right, it survives him. His “widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest” and “the ownership of one-half of the author’s interest is divided among the [surviving children and grandchildren].” Id. § 304(c)(2). When there is no surviving spouse, “[t]he author’s surviving children, and the surviving children of any dead child of the author, own the author’s entire termination interest.” Id. § 304(c)(2)(B). In order to terminate, a group that is “entitled to exercise a total of more than one-half of [the] author’s termination interest” must agree to the .termination, give advance notice of the termination, and file everything within one of two windows of time. See id. § 304(c)(1), (c)(3), (c)(4), (d).

The other key feature of the termination right is that, at a minimum, agreements pre-dating 1978 that purport to bargain away all rights in a copyrighted work may not limit the termination right. Else, the purpose of transforming the “renewal right” regime into a “termination right” regime would be thwarted. In the words of the statute: “Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.” Id. § 304(c)(5).

All of this means that, once Goldie passed away, each of the Brumley siblings held a one-sixth interest in the termination right, even though Robert and William held all of the rights to the copyright. It means the four siblings could exercise two-thirds of the termination interest with respect to a pre-1978 assignment — Brum-ley’s 1975 sale to two of his sons — as al*931lowed under the 1976 Act. See id. § 304(c)(6). And it means that, when the four siblings agreed to the termination, they complied with the timeline, majority-share prerequisites, and other requirements established by the Act.

Or so it seems. What makes this case difficult is less a matter of statutory interpretation and more a matter of contract interpretation, namely the meaning of Goldie’s 1979 assignment to William and Robert. Recall what happened in May of 1979: Through a “BILL OF SALE AND ASSIGNMENT” and “in consideration of One Dollar ... and other good and valuable considerations,” Goldie “assigned and transferred ... all the right, title and interest ... in ... all rights to obtain renewals or copyrights in the future upon Works written or composed by ... Albert E. Brumley” to Brumley & Sons, which William and Robert owned. App. 76. Notably, the parties do not argue that, as of 1979, Goldie had no authority to sell her termination right to her two sons under the copyright laws. They assume, as have two other courts of appeals, that the 1976 Act’s prohibition on such assignments— making termination rights enforceable “notwithstanding any agreement to the contrary,” 17 U.S.C. § 304(c)(5) — applies only to pre-1978 agreements that could be construed to cut off a termination right. See Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193, 202-04 (2d Cir.2008); Milne ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1043-45 (9th Cir.2005).

What matters, then, is what the 1979 agreement did — and did not do. Consistent with the district court’s ruling, we interpret that agreement not to bargain away Goldie’s termination right and not to replace the 1975 contract. Her termination right thus went to her children when she died in 1988, and the 1979 document does not stop the siblings’ termination.

Robert offers several rejoinders. First, he argues that Goldie’s 1979 document “effectively .... exercise[d] [her] termination interest[ ].” Appellants’ Br. 26. But Goldie never exercised her termination right because the Copyright Act does not allow the sort of unofficial termination that Robert proposes. The Act and its implementing regulations describe several requirements of a termination notice, including that it must “state the effective date of the termination” and “be recorded in the Copyright Office.” 17 U.S.C. § 304(c)(4)(A); see also 37 C.F.R. § 201.10. Goldie’s 1979 assignment did none of this. It does not give a termination date. It was never recorded with the Copyright Office. It does not •even mention the word “termination.”

Even if that had not been the case, Goldie would have lacked the right to terminate on her own. In 1979 Goldie held a one-half share of the termination right because the other half passed in equal shares to the children when Albert died. 17 U.S.C. § 304(c)(2)(A). Only those who “are entitled to exercise a total of more than one-half of [the] termination interest” may terminate. Id. § 304(c)(1). She thus could not have terminated the 1975 grant in 1979 without at least one of her children joining her. None did. The 1979 contract does not amount to a termination notice.

Robert persists that, even if the 1979 document did not amount to a termination notice, (1) Goldie held 50% of the termination right in 1979, and (2) Goldie bargained away that termination right in the 1979 document, which means that any partial termination right that the four siblings now have does not suffice to terminate under the Act. The first premise of this argument is correct. See id. § 304(c)(3), (4)(a). The second premise is not. The 1979 document never mentions termination rights, even after the 1976 Act made them, as opposed to renewal rights, the brass-*932ring authority that authors, their spouses, and their heirs could invoke to capture latent value in a work. The brief language of the 1979 document indeed nearly mirrors the assignment language of the 1975 assignment, which of course did not transfer any termination rights — because the concept did not yet exist and at any rate would not have been enforceable in view of the 1976 Act’s prohibition on prior “agreement[s] to the contrary.” Last of all, the 1979 assignment does not purport to override the 1975 assignment, leaving a pre-1978 copyright agreement that could be terminated under the 1976 Act.

Second, Robert leans on cases from other circuits. They do not help. In Milne ex rel. Coyne v. Stephen Slesinger, Inc., the Ninth Circuit confronted a situation that at first glance looks similar to ours. 430 F.3d 1036 (9th Cir.2005). A.A. Milne assigned an assortment of copyrights in works related to “Winnie the Pooh” to Slesinger in 1930. In 1983, Milne and Slesinger’s successors in interest renegotiated the contract, “provid[ing] for the revocation of the 1930.... agreement! ] in favor of the new agreement.” Id. at 1040. The Ninth Circuit held that, because the 1983 grant replaced the 1930 grant, the 1930 grant could not be terminated. Id. at 1048. The Ninth Circuit reached a similar conclusion in DC Comics v. Pacific Pictures Corp. It held that “as a matter of New York law,” a later contract “superseded” the prior one, “and therefore operated to revoke that assignment and re-grant the ... copyrights.” 545 Fed.Appx. 678, 680 (9th Cir.2013).

The key difference between Milne and DC Comics on the one hand and today’s case on the other is that the pre-1978 assignments in those cases were clearly revoked by the post-1978 ássignments. Because the earlier contracts no longer existed, they could not be terminated. That is a far cry from our case, in which the 1975 contract remained alive and well — and subject to termination — at the time of termination.

Penguin Group (USA) Inc. v. Steinbeck is of a piece. 537 F.3d 193 (2d Cir.2008). John Steinbeck’s descendants sought to terminate some pre-1978 copyright assignments. But a post-1978 agreement stated that it “canceled] and supersede^] the previous agreements.” Id. at 200. “Because ... the [post-1978] Agreement terminated and superseded the [pre-1978] Agreement” — and thus had already allowed the author’s descendants to profit from the growing commercial success of their progenitor — the pre-1978 agreement could not be terminated. Id. at 202. By contrast, Goldie’s 1979 document by its terms does not replace the 1975 contract. It indeed never mentions the 1975 contract at all, much less mentions the sale of any termination rights.

Third, Robert maintains that state contract law (the law of Missouri, the parties agree) establishes that the 1979 document amounts to a second contract that supersedes the 1975 agreement. Otherwise, what was the point of the 1979 agreement? It must have done something, he says, pointing out the reluctance under Missouri law (and the law of other States) to interpret a contract to do nothing. This is a fair point, but it runs into another fair point. If there is one thing clear about the 1976 Copyright Act (and its 1998 addendum), it is that Congress sought to permit authors and their heirs to capture latent value in- copyrights; hence the replacement of the flawed renewal regime with the termination right regime. Even if, as the parties seem to assume, an author or heir may' contract away, (or extinguish) a termination right after 1978, we should not lightly assume that a contract bargains away this centerpiece feature of the 1976 Act. When “there [is no] evidence in the *933record to support a finding that [a party] ... considered [its] termination rights under § 304(c), or ... intended to waive or relinquish them,” Classic Media, Inc. v. Mewborn, 532 F.3d 978, 989 (9th Cir.2008), courts should presume that a post-1978 agreement did not bargain away any termination rights.

The 1979 agreement, characterized most prominently by what it does not say, fails to contract away or extinguish termination rights. Entered into one year after the 1976 Act became effective, it says nothing about termination rights, says nothing about the existing 1975 agreement, and says nothing about replacing the 1975 agreement.

That the' 1979 assignment has additional terms, moreover, does not mean it replaces the 1975 agreement. Missouri novation law tells us as much. Novation occurs when “a new contract or obligation” is substituted “for an old one which is thereby extinguished.” W. Crawford Smith, Inc. v. Watkins, 425 S.W.2d 276, 279 (Mo.Ct.App.1968). A party attempting to prove that a later contract has replaced an earlier one must show “extinguishment of the old contract.” Am. Nat’l Ins. Co. v. Noble Commc’ns Co., 936 S.W.2d 124, 131 (Mo.Ct.App.1996). Novation “is never presumed,” and “[t]he controlling element in determining whether a novation has been accomplished is the intention of the parties.” Watkins, 425 S.W.2d at 279. Nothing in the 1979 document, which never mentions the 1975 agreement, indicates that it extinguished the 1975 agreement.

What then, Robert insists, did the 1979 assignment do? Here is one possibility. The 1975 agreement assigned “all of [the] right[,] title[,] and interest,” App. 74, to “I’ll Fly Away,” while the 1979 agreement elaborated that it did the same for “[a]ll copyright renewals” and “all rights to obtain renewals or copyrights in the future,” id. at 76. The broader language in the 1979 agreement would cover royalties on derivative works and future renewals permitted by Congress — which gives the 1979 agreement some meaning, even if not the meaning Robert would prefer. Either way, the language of the 1979 agreement did not suffice to eliminate/exercise/terminate Goldie’s termination right.

The alert reader may wonder why we decline to reject Robert’s defense on another ground — that the 1979 agreement, if construed to assign or extinguish Goldie’s termination rights, would amount to an impermissible “agreement to the contrary.” 17 U.S.C. § 304(c)(5) (In full: “Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.”). Two answers: The siblings have not argued the point, and it would not affect the outcome anyway given our interpretation of the 1979 agreement. The parties appear to accept the decisions of the Second and Ninth Circuits that termination rights, once vested after' 1978, may be extinguished or bargained away. See Steinbeck, 537 F.3d at 204; Milne, 430 F.3d at 1044-45. While the caselaw on this issue appears to be one-sided, it deserves mention that Nimmer on Copyright, now a father-son treatise that seems to have cornered the market on copyrights for works about copyright law, takes a contrary view. See M. Nimmer & D. Nimmer, 3 Nimmer on Copyright § 11.07[A] (2015); see also Peter S. Menell & David Nimmer, Pooh-Poohing Copyright Law’s ‘Inalienable’ Termination Rights, 57 J. Copyright Soc’y U.S.A. 799, 824-25 (2010).

Fourth, Robert claims that the district court made a mistake by failing to address his arguments related to his brother William’s termination interests. Remember that in 1986, eleven years after Albert Brumley sold Brumley & Sons to Robert *934and William, Robert bought William s interest in the company for roughly $240,000. Robert claims that the district court should have considered whether William exercised or sold his termination interests when he agreed to the 1986 sale. The district court did not misstep. In the first place, because the four plaintiff siblings owned more than half of the termination right, they may terminate for the whole group under the Copyright Act. See 17 U.S.C. § 304(c)(1). In the second place, the 1986 agreement purported only to sell William’s shares in the company to Robert. It said nothing about his legislatively created personal termination right, as opposed to his rights as a shareholder. That means that each of the six siblings (or their spouses and children, in appropriate sub-shares) now owns one-sixth of an interest in the copyright of “I’ll Fly Away.” See id. § 304(c)(6).

For these reasons, we affirm.