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Buttner v. RD Palmer Enterprises, Inc.

United States District Court, N.D. New York

March 31, 2015



LAWRENCE E. KAHN, District Judge.


Plaintiff Brian R. Buttner ("Plaintiff") commenced this action alleging copyright infringement and related state law claims against Defendants Rich and Gardner Construction Company, Inc. ("Rich and Gardner"); RD Palmer Enterprises, Inc. and Richard Palmer (together, "Palmer"); and Dunn & Sgromo Engineers, PLLC ("Dunn & Sgromo") (collectively, "Defendants"). Dkt. No. 1 ("Complaint"). On Nov 27, 2013, the Court granted Defendants' Motion for partial judgment on the pleadings, leaving only Plaintiff's claims for copyright infringement against all Defendants and breach of contract against Palmer remaining. See Dkt. No. 59 ("November Order") at 9. Presently before the Court are several Motions and Cross-Motions for summary judgment by the parties. Dkt. Nos. 77 ("Plaintiff Motion"); 83 ("Rich and Gardner Cross-Motion"); 84 ("Palmer Cross-Motion"); 89 ("Rich and Gardner Motion"); 131 ("Dunn & Sgromo Motion"); 133 ("Rich and Gardner Second Motion").[1] For the following reasons, Plaintiff's Motion is denied, Defendants' Motions for summary judgment on the copyright infringement claims are granted, and Palmer's Cross-Motion for summary judgment on the breach of contract claim is denied.


A. Factual Background

The material facts are not in dispute except where otherwise noted. Plaintiff, who does business as Applied Design Research Associates, is an architect who resides in New York. Dkt. No. 77-1 ("Plaintiff Statement of Material Facts - Plaintiff Motion") ¶¶ 1-3. On March 14, 2006, Palmer hired Plaintiff to provide various services relating to the renovation of a gas station in Cortland, New York, owned and operated by Palmer. Dkt. No. 84-1 ("Palmer Statement of Material Facts - Cross Motion") ¶ 1. Plaintiff was contracted to design a new building, or an addition to the existing building, for what amounted to essentially a combined Dunkin' Donuts, convenience store, and gas station. See id. ¶ 3.

Among the services Plaintiff rendered was the creation of architectural drawings. Pl. SMF - Pl. Mot. ¶ 4. Plaintiff registered his architectural drawings and architectural work with the Copyright Office, which were identified by Copyright Registration Numbers VAu-1-073-656 and VAu-1-075-551, respectively. Id . ¶¶ 5-6. In total, Plaintiff's works consisted of the following: (1) eight site plans; (2) a floor plan dated July 19, 2006, and two elevations dated January 12, 2007 (the "2006 Buttner Plans"); and (3) a floor plan dated April 10, 2008, and two elevations dated August 5, 2008 (the "2008 Buttner Plans") (collectively, the "Buttner Plans"). Dkt. No. 83-2 ("Rich and Gardner Statement of Material Facts - Cross-Mot.") ¶ 6.

Plaintiff's agreement with Palmer permitted Palmer to use the Buttner Plans to seek quotes from contractors. Id . ¶ 9. Accordingly, the 2008 Buttner Plans were provided to Rich and Gardner to prepare a cost estimate. Id . After Palmer and Plaintiff's one-year agreement expired, Palmer ceased engagement with Plaintiff-allegedly due to Plaintiff's "inability to move the [project] through various regulatory hurdles." Id . ¶ 8; see also Palmer SMF - Cross-Mot. ¶¶ 4-7. Palmer then retained Rich and Gardner to complete the project. Rich and Gardner SMF - Cross-Mot. ¶ 12. Rich and Gardner later drafted a set of plans (the "Earliest Rich and Gardner drawings") "based on, but different than, the Buttner Plans." Id . ¶ 15. Palmer and Rich and Gardner then procceded with the construction of the project based on Rich and Gardner's plans, and the project was completed in July 2011 (the "Station As-Built"). Id . ¶¶ 16-18.

Dunn & Sgromo is an engineering firm that was retained by Palmer in July 2007 to be the site engineer and obtain the necessary municipal approvals for the project. Dkt. No. 131 ("Dunn & Sgromo Statement of Material Facts") ¶¶ 9, 13. Plaintiff provided Dunn & Sgromo with the Buttner Plans to prepare a series of traffic studies to be submitted to the New York State Department of Transportation ("DOT") to obtain necessary permits for the project. Id . ¶ 14. Dunn & Sgromo worked with Plaintiff on modifying the Buttner Plans to meet DOT's requirements. Id . ¶ 15. The scope of Dunn & Sgromo's authorization to modify and utilize the Buttner Plans, however, is in dispute. See id. ¶¶ 16-18; Dkt. No. 136-3 ("Plaintiff Response Statement of Material Facts - Dunn & Sgromo") ¶¶ 13, 16-20.

B. Procedural Background

Plaintiff's Complaint alleged (1) copyright infringement, misappropriation, unjust enrichment, and unfair competition against all Defendants; and (2) breach of contract against Palmer. Compl. In the November Order, the Court dismissed all but Plaintiff's copyright infringement claim against all Defendants and Plaintiff's breach of contract claim against Palmer. Nov. Order.

Several Motions and Cross-Motions for summary judgment ensued. Plaintiff has moved for partial summary judgment against Palmer and Rich and Gardner on Plaintiff's claim that the Earliest Rich and Gardner drawings infringed on the 2008 Buttner Plans. See Pl. Mot; Dkt. No. 77-4 ("Plaintiff Memorandum - Plaintiff Motion"). Rich and Gardner has filed a Cross-Motion on the same issue, while Palmer filed a Cross-Motion on both the alleged infringement of the Earliest Rich and Gardner drawings and the Station As-Built, as well as on the breach of contract claim. Rich and Gardner Cross-Mot.; Palmer Cross-Mot.; Dkt. Nos. 84-4 ("Palmer Memorandum - Cross-Motion"); 85 ("Rich and Gardner Memorandum - Cross Motion"). Rich and Gardner then filed a Motion for partial summary judgment on the issue of infringement by the Station As-Built. Rich and Gardner Mot.; Dkt. No. 89-1 ("Rich and Gardner Memorandum - Motion"). Dunn & Sgromo has separately moved for summary judgment on the copyright infringement claims against it. Dunn & Sgromo Mot.; Dkt. No. 131-17 ("Dunn & Sgromo Memorandum"). Rich and Gardner has also filed a Second Motion for summary judgment on both infringement claims, but based on different grounds. Rich and Gardner Second Mot.[2] Rich and Gardner and Plaintiff were also granted leave to file Memoranda of law on the Second Circuit's recent decision in Zalewski v. Cicero Builder Dev. Inc., 754 F.3d 95 (2014). Dkt. Nos. 112; 113.


A. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure instructs a court to grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Although "[f]actual disputes that are irrelevant or unnecessary" will not preclude summary judgment, "summary judgment will not lie if... the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991).

The party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows that there is no genuine dispute as to any material fact, the burden shifts to the nonmoving party to demonstrate "the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id . This requires the nonmoving party to do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986). Mere conclusory allegations, speculation, or conjecture will not avail a party opposing summary judgment. Kulak v. City of N.Y., 88 F.3d 63, 71 (2d Cir. 1996).

At the same time, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). A court's duty in reviewing a motion for summary judgment is "carefully limited" to finding genuine disputes of fact, "not to deciding them." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). "The role of the court is not to weigh the evidence and determine the truth of the matter, but rather to perform the threshold inquiry of whether there is the need for a trial.'" Feder v. Target Stores, No. 11-CV-3675, 2014 WL 1651955, at *2 (E.D.N.Y. Apr. 24, 2014) (quoting Anderson, 477 U.S. at 249-50 (1986)).

B. Copyright Infringement

As discussed in greater detail infra, this case turns on the issue of substantial similarity. "[B]ecause the question of substantial similarity typically presents an extremely close question of fact, questions of non-infringement have traditionally been reserved for the trier of fact." Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010) (internal citation omitted). Nevertheless, "it is entirely appropriate for a district court to resolve that question as a matter of law, either because the similarity between two works concerns only non-copyrightable elements of the plaintiff's work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.'" Id . (quoting Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983)).


A. Copyright Infringement: Rich and Gardner and Palmer

1. Preliminary Issues

Plaintiff has alleged two distinct claims of copyright infringement against Rich and Gardner and Palmer: (1) that the Earliest Rich and Gardner drawings infringed on the 2008 Buttner Plans; and (2) that the Station As-Built infringed on the 2008 Buttner Plans. See generally Pl. Mem. - Pl. Mot. The Court notes that the parties' Motions address the individual claims for copyright infringement separately, and the burden in each case remains with the moving party. However, the appropriateness of awarding summary judgment as to all claims has been placed before the Court, and the issues presented in each are quite similar. Therefore, for purposes of clarity and efficiency, the Court has consolidated the issues in its analysis infra, but indicates a particular party's burden where necessary.

Another preliminary matter the Court must address is that both Palmer and Rich and Gardner argue that the proper analysis requires comparing their works not just to the 2008 Buttner Plans, but to the entirety of the Buttner Plans. See generally Rich and Gardner Mem. - Cross-Mot.; Palmer Mem. - Cross Mot. Palmer and Rich and Gardner assert that Plaintiff may not "pick and choose" which portion of his copyrighted work should be analyzed, as the "work" for which Plaintiff possess a copyright includes eight site plans, two floor plans, and four elevations. See Rich and Gardner Mem. - Cross-Mot. at 12-13. In support, Rich and Gardner cites Zalewski, 875 F.Supp.2d at 153 n.22, where the court rejected plaintiffs' argument that the court should compare only a portion of their architectural works, "[b]ecause the substantial similarity analysis... concerns the total concept and overall feel' of plaintiffs' works, [and thus] it is insufficient to demonstrate that a single component of the design, such as an individual floor plan or elevation view, has been copied." (quoting Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 133 (2d Cir. 2003)). Although the Court is persuaded by this language, it was made in dicta, and Rich and Gardner has provided no binding authority-and the Court is aware of none-establishing whether the proper comparison should be made with respect to the entirety of Plaintiffs' works.[3] In any event, the Court need not fashion a rule in this case because, even comparing only the 2008 Buttner Plans-which are indisputably the most similar of Plaintiff's drawings to the Earliest Rich and Gardner Drawings-the Court finds that "no reasonable jury, properly instructed, could find that the two works are substantially similar." Warner Bros. Inc., 720 F.2d at 240 (citation omitted).

2. Legal Standard

Copyright protection extends to "original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102. Following the passage of the Architectural Works Copyright Protection Act ("AWCPA"), "architectural works were added to the list of copyrightable works of authorship." Axelrod & Cherveny Architects, P.C. v. Winmar Homes, No. 05-CV-711, 2007 WL 708798, at *2 (E.D.N.Y. Mar. 6, 2007) (citing 17 U.S.C. § 102(a)(8)); see also 17 U.S.C. § 101 (defining an "architectural work" as "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings"). It is well-settled that architectural drawings receive copyright protection under both 17 U.S.C. § 102(a)(5) and § 102(a)(8). See Attia v. Soc'y of N.Y. Hosp., 201 F.3d 50, 52 n.3 (2d Cir. 1999); see also H.R. REP. NO. 101-735, at 17 (1990), as reprinted in 1990 U.S.C.C.A.N. 6935, 6950 ("An individual creating an architectural work by depicting that work in plans or drawing[s] will have two separate copyrights, one in the architectural work (section 102(a)(8)), the other in the plans or drawings (section 102(a)(5)).").

"In order to make out a claim of copyright infringement for an architectural work-or any work-a plaintiff must establish three things: 1) that his work is protected by a valid copyright, 2) that the defendant copied his work, and 3) that the copying was wrongful." Zalewski, 754 F.3d at 100 (citing Arnstein v. Porter, 154 F.2d 464, 468, 472-73 (2d Cir. 1946) and Laureyssens v. Idea Grp., Inc., 964 F.2d 131, 139-41 (2d Cir. 1992)). Moreover, " [d]e minimis copying is not actionable." Id . (citing Ringgold v. Black Entm't Television, Inc., 126 F.3d 70, 74 (2d Cir. 1997)).

3. Application

a. Valid Copyright

In judicial proceedings, a certificate of copyright registration "made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate." 17 U.S.C. § 410(c). Once the plaintiff has established a prima facie case of copyright validity, "the burden to prove otherwise shifts to the defendants." CJ Prods. LLC v. Snuggly Plushez LLC, 809 F.Supp.2d 127, 142 (E.D.N.Y. 2011) (citing Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir. 1985)).

Here, Plaintiff registered the architectural drawings with the Copyright Office on July 27, 2011. See Dkt. 77-6. Neither Rich and Gardner nor Palmer disputes the validity of the copyright, and thus there is no triable issue ...

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