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James E. Zalewski and Draftics, Ltd v. T.P. Builders

February 22, 2012


The opinion of the court was delivered by: Gary L. Sharpe Chief Judge


I. Introduction*fn1

Plaintiffs James Zalewski and Draftics, Ltd. commenced this action for copyright infringement under the Copyright Act of 1976*fn2 against defendants T.P. Builders, Inc. and Thomas Paonessa (collectively "T.P."); Roxanne Heller and DeRaven Design & Drafting (collectively "DeRaven"); V.S. Sofia Engineering, Sofia Engineering, PLLC, and Vincenzo Sofia (collectively "Sofia"); and Cillis Builders, Inc. and Theodore Cillis, III, (collectively "Cillis"). (See 3d Am. Compl., Dkt. No. 138.) Pending are Cillis, DeRaven and Sofia's motions to dismiss; T.P.'s motion for partial summary judgment; and plaintiffs' cross-motions for partial summary judgment against T.P., Sofia and Cillis. (See Dkt. Nos. 146, 149, 151, 156, 158, 159, 160.) For the reasons that follow, Cillis, DeRaven and Sofia's motions to dismiss are granted; plaintiffs' cross-motions are denied; and T.P.'s motion for partial summary judgment is denied as premature.

II. Background

The court presumes the parties' familiarity with the underlying facts as discussed in its previous memorandum-decision and order and plaintiffs' Third Amended Complaint. (See Dkt. No. 133; 3d Am. Compl., Dkt. No. 138.) Relevantly, plaintiffs now allege four causes of action for copyright infringement of architectural works.*fn3 (See 3d Am. Compl. ¶¶ 32-145.)

III. Standards of Review

The standards of review under the Federal Rules of Civil Procedure 12(b)(6) and 56 are well established and will not be repeated here. For a full discussion of the standards, the court refers the parties to its previous opinions in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010)(Rule 12(b)(6)); and Wagner v. Swarts, No. 1:09-cv-652, 2011 WL 5599571, at *4 (N.D.N.Y. Nov. 17, 2011) (Rule 56).

IV. Discussion

Defendants Cillis, Sofia*fn4 and DeRaven each argue the Third Amended Complaint should be dismissed because plaintiffs have not established that there are substantial similarities between the accused properties and plaintiffs' designs.*fn5 (See Dkt. No. 146, Attach. 14 at 10; Dkt. No. 149, Attach. 1 at 16; Dkt. No. 156, Attach. 17 at 5.) Though T.P. elected not to pursue a similar argument, it now seeks partial summary judgment on the bases that: (1) the Third Amended Complaint does not provide fair notice of the advertisements from which the copyright notices were allegedly removed; (2) the statute of limitations either bars the suit in its entirety, or at a minimum, limits plaintiffs' damages to those incurred in the three years preceding the complaint; and (3) plaintiffs' requested relief is either inappropriate or unavailable in a copyright case. (See Dkt. No. 151, Attach. 1 at 7-24.) In response, plaintiffs oppose all of defendants' arguments and cross-move for partial summary judgment on the substantial similarity element of their causes of action. (See generally Dkt. Nos. 158, 159, 160.) The court will address each of these arguments in turn.

A. Motions to Dismiss

To establish copyright infringement, "a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's." Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010) (internal quotation marks citations omitted). Presuming, without deciding, that plaintiffs sufficiently pled that defendants actually copied the architectural drawings, the court focuses on the similarity between defendants' works and the protectible elements of plaintiffs'.

While traditionally reserved for the trier of fact, "[t]he question of substantial similarity is by no means exclusively reserved for resolution by a jury." Id. Indeed, the Second Circuit has "repeatedly recognized that, in certain circumstances, it is entirely appropriate for a district court to resolve that question as a matter of law, [where] . . . 'no reasonable jury, properly instructed, could find that the two works are substantially similar.'" Id. (quoting Warner Bros. Inc. v. Am. Broad. Cos., Inc., 720 F.2d 231, 240 (2d Cir. 1983)). Thus, in the context of a motion to dismiss, the court reviews "the facts as asserted within the four corners of the complaint together with the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference." Id. at 64 (internal quotation marks and citation omitted). Because "the works themselves supersede and control contrary descriptions of them," Walker v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir. 1986), discovery is unnecessary, where, as here, the court can conduct the requisite visual comparison. Gaito Architecture, 602 F.3d at 64.

This comparison, which is known as the "ordinary observer test," asks "whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same." Id. at 66 (quoting Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir. 2001) (internal quotation marks omitted)). Stated another way, if the "average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work," the works are substantially similar. Gaito Architecture, 602 F.3d at 66 (internal quotation marks and citation omitted). In comparing the works in question, the court is mindful that not all elements are protectible, and thus its inquiry concerns only those elements which are entitled to copyright protection. See Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1994); see also Attia v. Soc'y of N.Y. Hosp., 201 F.3d 50, 56-57 (stating that general ideas and concepts-such as "the alignment of floor heights and . . . the arrangement of space on particular floors"-are generally not entitled to copyright protection since they lack sufficient detail to enable construction).

Here, the record is replete with evidence which demonstrates that plaintiffs' drawings are not substantially similar to the accused properties. In addition to the affidavits provided by DeRaven and Sofia-which articulate no fewer than twenty distinctions per property between plaintiffs' drawings and the accused properties, (see Dkt. No. 149, Attach. 5-14; Dkt. No. 156, ...

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