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RICHARD J. ZITZ, INC. v. PEREIRA

May 19, 1997

RICHARD J. ZITZ, INC., Plaintiff, against LEONEL BERNADINO DOS SANTOS PEREIRA, AND PETER T. PODLAS, Defendants.


The opinion of the court was delivered by: BOYLE

 [Corrected Version]

 Before the court are the plaintiff's motion for a preliminary injunction to enjoin the sale of premises owned by the defendant, Pereira, at 45 Noyac Path, in Watermill, New York, and a cross-motion by the defendant, Pereira, to vacate notices of pendency filed by the plaintiff against the real property owned by him at the same location.

 The Underlying Action

 The plaintiff, Richard J. Zitz, Inc., ("Zitz") has commenced an action for copyright infringement, 17 U.S.C. § 501 et seq., against the defendants, Leonel Bernadino Dos Santos Pereira ("Pereira"), and Peter T. Podlas ("Podlas"). The president of Zitz, Richard J. Zitz, alleges that he designed certain house, plans and specifications entitled "Town House II," which are registered under the Architectural Works Copyright Act, 17 U.S.C. § 700 et seq. The defendant Pereira is allegedly a house painter who Zitz hired in 1991 to do interior painting on another house that Zitz had designed and constructed in Bridgehampton. Zitz maintains that Pereira wanted Zitz to build a house for him based on the plans, drawings and specifications of Town House II, and that it assisted Pereira in locating a suitable lot for construction of the house at 4 Uncle Leo's Lane in Southampton. Zitz and Pereira thereafter were unable to agree on a contract and the matter was pursued no further.

 Zitz states that he "first became aware of . . . [Pereira's] intention to proceed with construction of the home on his own using all of the plans, drawings, and specifications obtained from plaintiff, in late January of 1993, when plaintiff's president happened on the defendant Pereira in the Southampton Town Public Library photocopying the contract, plans and specifications owned and produced by plaintiff." Amended Complaint, at P 15.

 Zitz claims that Pereira submitted its Town House II plans and drawings to the Building Department of the Town of Southampton on May 25, 1993. The house was to be constructed on the property at 4 Uncle Leo's Lane in Southampton, owned by Pereira. The defendant, Podlas, is a licensed architect who was allegedly hired by Pereira and prepared the plans and specifications that were submitted to the building department, and which were "directly copied and derived from the plans, drawings and specifications of Town House II owned by Zitz. Amended Complaint, at P 17.

 Construction on the house at 4 Uncle Leo's Lane allegedly began in June 1993 and was completed in October 1994. Zitz alleges that thereafter Pereira and Podlas made a similar submission of plaintiff's plans to the Building Department of the Town of Southampton on October 16, 1995 to construct a house at 45 Noyac Path, Watermill, New York.

 This is the house for which Zitz seeks a preliminary injunction - to enjoin the defendants from "selling transferring . . . encumbering or otherwise causing waste of the house . . . ." Order to Show Cause for a Preliminary Injunction, dated April 11, 1997.

 The Amended complaint requests compensatory damages in the sum of "at least $ 100,000.00," see Amended Complaint, at P 26, as well as "all profits of the infringers," pursuant to 17 U.S.C. § 504. Amended Complaint, at P 29. In addition, Zitz seeks to enjoin the defendants from any future infringement of its Town House II plans, drawings and specifications. Amended Complaint Prayer for Relief, at P 4.

 DISCUSSION

 I. The Preliminary Injunction Request

 The standard for granting injunctive relief in this circuit is clear. A plaintiff must establish "(a) irreparable harm and (b) either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam).

 The essential elements of a copyright infringement case are (1) ownership of a valid copyright, and (2) unauthorized reproduction by the defendant of constituent elements of the work that are original. Warner Bros., Inc. v. American Broadcasting Co., 654 F.2d 204, 207 (2d Cir. 1981). A certificate of registration constitutes prima facie evidence of a valid copyright. The "possession of a registration certificate creates a rebuttable presumption that the work in question is copyrightable." Whimsicality, Inc. v. Rubie's Costume Co., 891 F.2d 452, 455 (2d Cir. 1989). The second element may be established by direct evidence of copying, which is rare, Demetriades v. Kaufmann, 680 F. Supp. 658, 661 (S.D.N.Y. 1988), or by showing access by the defendant to the copyrighted work, Smith v. Little Brown & Co., 245 F. Supp. 451 (S.D.N.Y. 1965), aff'd, 360 F.2d 928 (2d Cir. 1966), and substantial similarity. Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090 (2d Cir. 1977); 3 Nimmer on Copyright, § 13.01[B], at 13-14. Lastly, in a copyright infringement case, irreparable harm is presumed once the plaintiff has established a prima facie claim. Hasbro Bradley, Inc. v. Sparkle Toys, Inc., supra, 780 F.2d at 192.

 1. Zitz Has Failed to Submit Proof to Support the Issuance of a Preliminary Injunction

 The Order to Show Cause is based on the complaint, and the sworn testimony of the plaintiff, Richard J. Zitz, at the hearing on March 19, 1997. The testimony of Zitz's President on March 19, 1997 was given at the first day of a hearing on its application for a preliminary injunction with respect to the now dismissed action, CV-96-2337. Zitz does not attach a copy of such testimony to his moving papers. The court notes that cross-examination of the plaintiff had not been completed by the defendants, and the hearing never resumed due to the intervening dismissal of the 1996 action by Judge Platt. The only other documents supporting the application for a preliminary injunction are those submitted by Zitz's counsel in the form of legal memoranda and the complaint, neither of which serve as a substitute for evidence.

 Although this matter was set down for a hearing on April 18, 1997, Zitz at that time called no witness, made no submission by affidavit or deposition, and made no request for an evidentiary hearing, resting instead on the oral argument and supporting legal memoranda. Zitz's proof is insufficient to support the issuance of a preliminary injunction in a copyright infringement case. Uneeda Doll Co. v. P & M Doll Co., 241 F. Supp. 675 (S.D.N.Y. 1965), aff'd, 353 F.2d 788 (2d Cir. 1965) (no showing of likelihood of success is grounds for denial); Herbert Rosenthal Jewelry v. Grossbardt, 428 F.2d 551, 553-54 (2d Cir. 1970) (no need for a hearing on a motion for preliminary injunction where defendant admitted the copying and both parties submitted affidavits and depositions).

 Moreover, during the course of the plaintiff's testimony on March 19, 1997, it was clear that Zitz's President had not observed Pereira engage in photocopying of its house plans and specifications at the Southampton Town Public Library in January 1993. Transcript of the Proceedings on March 19, 1997, at 81-83. Accordingly, the sole proof of direct copying alleged in the complaint is a false statement. There is no evidence before the court to support the second element of a copyright infringement cause of action, i.e. that the defendants engaged in the unauthorized reproduction of the copyrighted work. See, Warner Bros., Inc. v. American Broadcasting Co., 654 F.2d 204, 207 (2d Cir. 1981). The issuance of a preliminary injunction is in the court's discretion. Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966). Plaintiff fails to meet the applicable standard for entitlement to preliminary relief in a copyright infringement action, i.e. a prima facie case of copyright infringement or a reasonable likelihood of success on the merits. Consumers Union of U.S., Inc. v. General Signal Corp., 724 F.2d ...


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