The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs James Zalewski and Draftics, Ltd. commenced this action for
copyright infringement under the Copyright Act of 1976*fn1
against defendants T.P. Builders, Inc. and Thomas Paonessa
Roxanne Heller and DeRaven Design & Drafting (DeRaven defendants);
V.S. Sofia Engineering, Sofia Engineering, PLLC, and Vincenzo Sofia (Sofia defendants); Cicero Building Dev., Inc. and Luigi Cicero (Cicero defendants); Shelroc Homes, LLC, Capital Framing, Inc., and Joseph Clark (Shelroc defendants); and Cillis Builders, Inc. and Theodore Cillis (Cillis defendants). (See 2d Am. Compl., Dkt. No. 60.) Pending are Shelroc defendants' motion to dismiss, (Dkt. Nos. 76, 77); T.P. defendants' motions to dismiss DeRaven defendants' cross-claims, (Dkt. No. 101), and motion to dismiss or, in the alternative, for summary judgment on plaintiffs' claims, (Dkt. No. 107); DeRaven defendants' motion to dismiss, (Dkt. No. 104); Cillis defendants' motion to dismiss, (Dkt. No. 106); and Sofia defendants' motion to dismiss or, in the alternative, for summary judgment, (Dkt. No. 109). For the reasons that follow, defendants' motions are granted insofar as plaintiffs' complaint is dismissed as insufficiently pled, and plaintiffs are granted limited leave to amend their complaint a third time.
Plaintiff James Zalewski is a building designer who specializes in the architectural and floor-plan design of residential homes. (See 2d Am. Compl. ¶ 2, Dkt. No. 60.) Plaintiff Draftics is a New York corporation, of which Zalewski is the sole shareholder. (See id. at ¶¶ 3, 26.) Draftics develops, drafts, and sells home designs for use in new home construction. (See id. at ¶ 4.)
Between 1994 and 1998, Zalewski made the following home designs: DRA210; DRA211; DRA212; DRA213; DRA216a; DRA217; DRA218; DRA219; DRA313; DRA 316; and DRA327. (See id. at ¶ 27.) According to Zalewski, at some point he "made one single-use license per design to [T.P. defendants] to build each of the homes Zalewski designed." (Id. at ¶ 28.) Zalewski ceased doing business with T.P. defendants in 1998. (See id. at ¶ 33.) Since then, Zalewski has not made any assignment or transfer of copyright or "any license to use with any other contractor, builder, architect, engineer, or home designer." (Id. at ¶¶ 29, 31.) Nor has Zalewski entered into any type of agreement with any person or entity "outside of the normal course of business wherein [they] license their customers (who are not parties to the present action) to build one (1) house based on one (1) of [their] designs." (Id. at ¶¶ 30, 32.)
On July 16, 2010, plaintiffs commenced this action, naming ninety defendants, including the owners of record of numerous homes. (See Compl., Dkt. No. 1.) Shortly thereafter, on August 24, 2010, plaintiffs filed an amended complaint to add an additional defendant. (See Am. Compl., Dkt. No. 11.) Acting on the court's advice, plaintiffs stipulated to the dismissal of all but the T.P. defendants, DeRaven defendants, Sofia defendants, Cicero defendants, and Shelroc defendants. (See Dkt. Nos. 47, 51, 52, 53, 56, 61, 64, 68, 85.) Plaintiffs subsequently filed a second amended complaint, which additionally included Cillis defendants. (See 2d Am. Compl., Dkt. No. 60.)
With minimal detail, plaintiffs allege that after successfully registering copyrights of their original home designs, (see id. at ¶¶ 35-38), the defendants unlawfully infringed on these designs. Plaintiffs seek (1) preliminary and permanent injunctive relief against all defendants; (2) actual damages under 17 U.S.C. § 504(b) for each infringement; (3) statutory damages under § 504(c) for each qualifying infringement; (4) treble damages under § 504(c)(2) for each qualifying infringement; and (5) attorneys' fees and costs under § 505. (See id. at 22-23.)
In the first cause of action, plaintiffs allege that T.P. defendants currently advertise homes that are being constructed or can be built in accordance with DRA210, DRA211, DRA212, DRA216a, DRA217, and DRA313. (See id. at ¶¶ 42-44.) Similarly, plaintiffs allege that Cicero defendants are advertising to build homes in accordance with DRA217 on the lots available in the "Kaleen Manor" development. (See id. at ¶ 45.)
As to the second cause of action, plaintiffs allege that, in reliance on the DRA211 design, Cicero defendants constructed and Sofia defendants designed and drew plans for a home constructed at 9 Kaleen Drive, Ballston Spa, New York. (See id. at ¶ 52.) According to plaintiffs, Cicero defendants and Sofia defendants "were, upon information and belief, aware of [his] DRA211 design at the time they made the designs[,] drawings[,] and specifications for ... and [began] construction of the [DRA211 home]." (Id. at ¶ 55.) In like conclusory fashion, plaintiffs allege that Cicero defendants and Sofia defendants had access to the DRA211 design through the T.P. defendants' single-use license, and that they knowingly, willfully, and intentionally participated in the infringing activities. (See id. at ¶¶ 56-59.)
In the third cause of action, plaintiffs allege that, based on the DRA212 design, Cillis defendants constructed and DeRaven defendants made the drawings for a home constructed at 11 Nicole Court, Clifton Park, New York. (See id. at ¶ 68.) Like the second cause of action, plaintiffs allege that Cillis defendants and DeRaven defendants, "were, upon information and belief, aware of [his] DRA212 design at the time they made the design and the construction of the [DRA212 home]." (Id. at ¶¶ 72-73.) According to plaintiffs, Cillis defendants and DeRaven defendants had access to the DRA212 design because Thomas Cillis had received a copy of the design from Zalewski, whereby Cillis and DeRaven defendants copied the DRA212 design in preparing the architectural drawings and constructing the DRA212 home. (See id. at ¶¶ 74-76.) And again, plaintiffs conclusorily allege that Cillis defendants and DeRaven defendants knowingly, willfully, and intentionally participated in the infringing activities. (See id. at ¶ 78.) But unlike the second cause of action, plaintiffs allege that construction of the DRA212 home commenced after Zalewski obtained copyright protection of the DRA212 design. (See id. at ¶ 68.)
Plaintiffs' fourth and fifth causes of action largely mirror the second. In the fourth cause of action, plaintiffs allege that T.P. defendants, Shelroc defendants, and DeRaven defendants "[j]ointly and severally, upon information and belief," designed and constructed two homes based on the DRA217 design, the first located at 24 Arch Street, Albany, New York, and the second at 4186 Albany Street, Albany. (Id. at ¶¶ 87-97.) In the fifth cause of action, plaintiffs allege that, using the DRA210 design, DeRaven defendants made the drawings ...