See, e.g., Libertyville Datsun Sales, Inc. It is axiomatic that an argument of this kind is waived if it is not brought before the district court. See Players' Summary Judgment Memorandum 118. Indeed, the only issue as to which Players argued that there was a genuine issue of material fact concerned the parties' written agreements respecting ownership of the telecasts' copyright. However, they never claimed that the performance of baseball before televised audiences was not within the scope of their employment. See Players' Memorandum in Opposition to the Owners' Motion for Summary Judgment and in Support of the Players' Cross-Motion for Summary Judgment on the Copyright Claim 101-18 ('Players' Summary Judgment Memorandum') Transcript of Summary Judgment Hearing 40-43. In their briefs and argument before the district court, the Players asserted several reasons that telecasts of major league baseball games might not be works made for hire. Nevertheless, the Players failed to raise this contention in timely fashion. On appeal the Players argue that there exist genuine issues of material fact as to whether the performance of baseball for televised audiences is within the scope of the Players' employment. The district court further found that the scope of the Players' employment encompassed the performance of major league baseball before 'live and remote audiences.' See Baltimore Orioles, 1985 Copyright L.Dec. 52 ('House Report'), reprinted in 1976 U.S.Code Cong. if a fixation of the work is being made simultaneously with its transmission.' Since the telecasts of the games are videotaped at the same time that they are broadcast, the telecasts are fixed in tangible form. Section 101 expressly provides that ' work consisting of sounds, images, or both, that are being transmitted, is 'fixed'. Although there may have been some question at one time as to whether simultaneously recorded live broadcasts were copyrightable, this is no longer the case. Section 102 sets forth three conditions for copyrightability: first, a work must be fixed in tangible form second, the work must be an original work of authorship and third, it must come within the subject matter of copyright. The district court concluded that the telecasts were copyrightable works. 102(a), (2) the work was prepared by an employee, (3) the work was prepared within the scope of the employee's employment, and (4) the parties have not expressly agreed otherwise in a signed, written instrument. 4 Thus, an employer owns a copyright in a work if (1) the work satisfies the generally applicable requirements for copyrightability set forth in 17 U.S.C. 3 A work made for hire is defined in pertinent part as 'a work prepared by an employee within the scope of his or her employment.' 17 U.S.C. and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.' 17 U.S.C. 201(a) however, 'n the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author. In general, copyright in a work 'vests initially in the author or authors of the work,' 17 U.S.C. Our analysis begins by ascertaining whether the Clubs own a copyright in the telecasts of major league baseball games. Hence, we have jurisdiction to decide this dispute. We therefore conclude that the May 23 order was an appealable final decision from which the Players filed a timely notice of appeal. 2324, 85 L.Ed.2d 842 (1985) see also American Family Mutual Insurance Co. We have held that an order that effectively ends the litigation on the merits is an appealable final judgment even if the district court did not formally enter judgment on a claim that one party has abandoned. It is true that the May 23 order did not explicitly grant judgment on Counts III and IV of the Baltimore Orioles complaint and on each of the counts in the Rogers complaint however, as the amended judgment order makes clear, the parties had abandoned those claims. Judged by this standard, the district court's May 23 order was a final decision because it effectively terminated the litigation on the merits. Louis, Iron Mountain & Southern Railroad v. 1291 if it ends the litigation on the merits and leaves nothing for the district court to do but execute the judgment. In general, a decision is final for the purpose of Sec.

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