`
`FILED
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` 2012 May-16 PM 12:52
`U.S. DISTRICT COURT
`N.D. OF ALABAMA
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ALABAMA
`NORTHEASTERN DIVISION
`
`KEITH KARLSON,
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`Plaintiff/Counter-claim
`defendant,
`
`vs.
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`RED DOOR HOMES, LLC,
`et al.,
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`Defendants/ Counter-claim
`plaintiffs.
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`CASE NO. CV-11-J-1511-NE
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`MEMORANDUM OPINION
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`Pending before the court are a motion for summary judgment by defendants
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`Red Door Homes, LLC, SMA Operations Management, LLC, and RDH Advising,
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`LLC (doc. 36), evidentiary material in support of said motion (doc. 37), defendants’
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`motion to strike plaintiff’s damages (doc. 38), plaintiff’s motion for summary
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`judgment on defendants’ counterclaim and evidence in support (doc. 39), plaintiff’s
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`brief in support of said motion (doc. 40), plaintiff’s brief in opposition to defendants’
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`motion (doc. 42), defendants’ brief in opposition to plaintiff’s motion (doc. 43),
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`plaintiff’s opposition to defendants’ motion to strike his damages (doc. 44), plaintiff’s
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`reply to defendant’s opposition (doc. 46), defendants’ reply and further evidence
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`(docs. 47 and 48), defendants’ motion to strike plaintiff’s declaration and evidentiary
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`submissions in support of plaintiff’s opposition to defendants’ motion for summary
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 2 of 17
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`judgment (docs. 49 and 50), defendants’ reply to plaintiff’s opposition to defendants’
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`motion to strike plaintiff’s damages (doc. 51), plaintiff’s response in opposition to
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`defendants’ motion to strike the plaintiff’s declaration (doc. 52), and the defendants’
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`reply to the same (doc 54). Having considered the pleadings and evidence, the court
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`finds as follows:
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`I. Factual Background
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`This case arises out of claims of copyright infringement. Plaintiff creates
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`renderings of new home plans for marketing purposes. Plaintiff depo. at 20-24.
`1
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`Defendants Red Door Homes, LLC (“Red Door”), and SMA Operations Management,
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`LLC (“SMA”) both design new homes. Miller depo. at 51. SMA sold home plans
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`and drawings to builders “on demand,” including plaintiff’s renderings, if requested
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`by builders, whereas Red Door provided software estimates and building packages,
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`which included access to the renderings, to its licensees, who sold the plans to
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`builders. Declaration of Miller (doc. 37-2), ¶¶ 3, 6; see also defendant’s motion for
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`summary judgment (doc. 36, at 7-8); Miller depo. at 27-28.
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`Non-party Patrick Miller created home designs for defendants SMA and Red
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`Door Homes and sent them to plaintiff for renderings on an independent contractor
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`These are colored pictures of what a home design will look like when built, created from
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`elevations, floor plans and/or blue prints.
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`2
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 3 of 17
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`basis. Miller depo. at 40, 57; plaintiff depo. at 33-34, 55-56, 216. In 2008, defendant
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`SMA hired Miller full time. Miller depo. at 57-60. Miller also became a shareholder
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`in defendant Red Door. Defendant ex. C, ¶ 2.
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`Although plaintiff asserts he has claimed a copyright interest since he began
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`working with Miller in 1998 (plaintiff depo. at 35-36), the defendants realized in
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`2009 plaintiff was claiming copyrights on the renderings. The plaintiff had begun
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`placing copyright language on his invoices to defendants in 2008. Miller depo. at 80,
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`86-88. See also, defendant exhibit M (stating plaintiff transferred “a limited
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`copyright to reproduce the artwork ... in unlimited quantities ... royalty free, but only
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`for use directly by you and may not be transferred to another business entity without
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`my expressed (sic) permission....”).
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`In November 2009, the plaintiff sent defendants an email outlining his terms
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`for payment and royalties if they wished to continue to use his services and
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`renderings. Defendant ex. Q. In that document, the plaintiff states he misunderstood
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`the nature of the Red Door business, but upon learning that his artwork was being
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`provided to licensees, he believed he is entitled to royalties based on the number of
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`builders using the plans. Id. Defendants responded this was not their agreement and
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`the same would not be a good business model for them. Id. Defendants also told
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`plaintiff he could continue doing renderings for a “one time” price, but if he declined,
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`they would find someone else to perform this service. Id. Plaintiff responded that
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`defendants could not use any of his artwork anymore. Id.
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`Plaintiff believes the use of his artwork by defendant Red Door licensees
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`violated his copyright in the renderings, because Red Door had at least 70 of his
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`renderings on its website for use and resale by its licensees and/or clients. Plaintiff
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`depo. at 50, 71, 135-136. Prior to December 16, 2009, plaintiff never mentioned his
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`belief his work was copyrighted to Miller. Plaintiff depo. at 133. His copyright
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`issued with a registration date of December 18, 2009. Plaintiff depo. at 135.
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`Plaintiff did not actually receive the copyright until sometime in 2011. See e.g.
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`defendant ex. P.
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`The defendants removed plaintiff’s renderings upon plaintiff’s claim of
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`copyright infringement. Miller depo. at 36, 117-118; see also plaintiff ex. 8 to doc.
`2
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`39. By declaration, Patrick Miller stated he was unaware of any licensee of Red Door
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`Homes who actually used the renderings provided by plaintiff. Miller declaration, ¶
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`3. They hired someone else to redraw the renderings they were using. Miller depo.
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`An email notice was sent to various defendant licensees stating “the contractor was
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`insisting upon payment from each RDH entity and our original intent was for RDH to have use of
`the art for each RDH division. The contract language was vague and the contractor has not been
`reasonable in helping us to come to a solution. As a result, we will be removing the renderings
`from the website and replacing them ASAP...” Plaintiff ex. 8 to doc. 39.
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`4
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 5 of 17
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`at 118-119. All of plaintiff’s invoices, except his final one claiming payment due for
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`resale of his work, have been paid. Plaintiff depo. at 154-155, 189-190.
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`In September 2010, plaintiff asserted the defendants owe him $142,279.00 for
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`their use of his artwork as provided to others. See defendant ex. J (doc. 37-2). He
`3
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`based this number on the approximately 70 of his renderings available on Red Door’s
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`website for use and resale by its licensees and/or clients. Plaintiff depo. at 50, 71,
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`135-136; defendant ex. J.
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`On this set of facts, the plaintiff filed suit claiming copyright infringement
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`(Count I); breach of contract (Count II); and conversion (Count III). The defendants
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`filed counterclaims (doc. 9) for breach of agreement (Count I); invalid copyright
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`(Count II); and unjust enrichment (Count III).
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`II. Standard of Review
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`A moving party is entitled to summary judgment if there is no genuine issue of
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`material fact, leaving final judgment to be decided as a matter of law. See Federal
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`Rule of Civil Procedure 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
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`U.S. 574, 587, 106 S.Ct. 1348, 1355-56 (1986). An issue is “material” if it is a legal
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`element of the claim under the applicable substantive law which might affect the
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`The plaintiff asserted he seeks $31,000.00 in his subsequent deposition, then reverted back
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`to $142,000.00, which is the topic of one of the pending motions to strike.
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`5
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 6 of 17
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`outcome of the case. It is “genuine” if the record taken as a whole could lead a
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`rational trier of fact to find for the nonmoving party. Allen v. Tyson Foods, Inc., 121
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`F.3d 642, 646 (11 Cir.1997).
`th
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`The facts, and any reasonable inferences therefrom, are to be viewed in the
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`light most favorable to the non-moving party, with any doubt resolved in the
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`nonmovant’s favor. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct.
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`1598, 1609 (1970). Once met by the moving party, however, the burden shifts to the
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`non-moving party to come forward with evidence to establish each element essential
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`to that party’s case sufficient to sustain a jury verdict. See Celotex Corp. v. Catrett,
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`477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Earley v. Champion Int’l Corp., 907
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`F.2d 1077, 1080 (11 Cir.1990).
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`A party opposing a properly submitted motion for summary judgment may not
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`rest upon mere allegations or denials of his pleadings, but must set forth specific facts
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`showing that there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578,
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`1580 (11 Cir.1990). In addition, the non-moving party's evidence on rebuttal must
`th
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`be significantly probative and not based on mere assertion or be merely colorable.
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`See Rule 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct.
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`2505, 2511 (1986). Speculation does not create a genuine issue of fact. Cordoba v.
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`Dillard’s, Inc., 419 F.3d 1169, 1181 (11 Cir.2005).
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`6
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 7 of 17
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`The court must consider the evidence in the light most favorable to the non-
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`moving party and may not make credibility determinations nor weigh the parties’
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`evidence. Frederick v. Sprint/United Management Co., 246 F.3d 1305, 1311 (11th
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`Cir.2001); Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11 Cir.2000).
`th
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`III. Legal Analysis
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`A. Defendant’s motion for Summary Judgment (doc. 36):
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`1. Copyright Infringement
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`A plaintiff in a copyright case must have a valid copyright and show that
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`original elements of the protected work were copied. Feist Publ’ns, Inc. v. Rural Tel.
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`Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282 (1991). The copying analysis has
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`two parts: whether, as a factual matter, the defendant copied portions of the protected
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`work; and whether, as a mixed question of fact and law, the copied elements are
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`protected expression. Peter Letterese and Assocs., Inc. v. World Inst. of Scientology
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`Enters., 533 F.3d 1287, 1300 (11 Cir.2008).
`th
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`The Copyright Act states that “[a] work consisting of editorial revisions,
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`annotations, elaborations, or other modifications [to a preexisting work that], as a
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`whole, represent an original work of authorship, is a ‘derivative work.’” 17 U.S.C. §
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`101. Such a work—if it is non-infringing and sufficiently original—qualifies for a
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`separate copyright, although this copyright does not protect the preexisting material
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`7
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 8 of 17
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`employed in the derivative work. See 17 U.S.C. § 103 (1994); Stewart v. Abend, 495
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`U.S. 207, 223–24, 110 S.Ct. 1750, 1761–62, 109 L.Ed.2d 184 (1990) (“The aspects
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`of a derivative work added by the derivative author are that author's property, but the
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`element drawn from the pre-existing work remains on grant from the owner of the
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`pre-existing work.”). Congress granted copyright protection to architectural works
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`and architectural drawings under 17 U.S.C. §§ 102(a)(8) and 102(a)(5), respectively.
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`As one court stated, “[t]o be eligible for copyright protection, “an architectural work
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`must exhibit some modicum of creativity.... The architectural work need not be novel;
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`bluntly, the vast majority of works qualify, “no matter how crude, humble, or
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`obvious.” Value Group, Inc. v. Mendham Lake Estates, L.P., 800 F.Supp. 1228, 1232
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`(D.N.J.1992).
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`Copyright protects original expression only; it does not extend to any
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`underlying ideas, procedures, processes, and systems. Herzog v. Castle Rock Entm't,
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`193 F.3d 1241, 1248 (11 Cir.1999). A copyright registration certificate constitutes
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`prima facie evidence of validity of a copyright, and the burden then shifts to the party
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`challenging the copyright to dispute its validity. Autoskill, Inc. v. National
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`Educational Support Systems, Inc., 994 F.2d 1476, 1487 (10 Cir.1993).
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`The court assumes without deciding, for purposes of this analysis only, that
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`applying the above law, the plaintiff does hold valid copyrights in his renderings as
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`8
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 9 of 17
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`derivative works. Additionally, the parties do not dispute that the plaintiff obtained
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`a registered copyright in December 2009. Copyright infringement protection begins
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`with registration. Bauer Lamp Co., Inc. v. Shaffer, 941 F.2d 1165, 1171 (11th
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`Cir.1991). However, copyright inheres in authorship and exists whether or not it is
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`ever registered. See Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F.3d
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`1529, 1531 (11 Cir.1994), citing 17 U.S.C. § 408.
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`“[A]n author has a valid copyright in an original work at the moment it
`is created-or, more specifically, fixed in any tangible medium of
`expression.” See Original Appalachian Artworks, Inc. v. Toy Loft, Inc.,
`684 F.2d 821, 823 n. 1 (11 Cir.1982) (citing 17 U.S.C. § 102(a)).
`th
`“[C]opyright registration is not a prerequisite to copyright protection.”
`Id. Moreover, registration of a copyright “is not obligatory, although
`registration is a prerequisite to an infringement suit in certain
`circumstances and also is a prerequisite to certain infringement
`remedies.” Id. (citing 17 U.S.C. §§ 408, 411, and 412).
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`McCaskill v. Ray 279 Fed.Appx. 913, 916 (11 Cir.2008).
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`The issue of registration bears greatly on recoverable damages. No award of
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`statutory damages or attorney fees is recoverable for infringements of copyright
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`commenced after first publication of the work and before the effective date of its
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`registration, unless such registration is made within three months after the first
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`publication of the work. 17 U.S.C. § 412.
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`Although the plaintiff asserts his copyright statement on the invoices submitted
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`to defendants protect his work, the invoices cannot be part of the contract between the
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`9
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 10 of 17
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`parties to produce the work because they were sent after the renderings were provided
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`to the defendants. See e.g., plaintiff depo. at 139-140; defendant ex M, invoice dated
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`April 8, 2008 for work ordered March 3, 2008 and delivered April 4, 2008 through
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`April 7, 2008. Although the invoices contained language to the effect that by using
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`his artwork, the defendants agreed to the terms listed in the invoices, the work was
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`completed and sent to defendants prior to their receipt of an invoice. Thus, any
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`statement regarding use of the renderings in the invoices could not form the basis of
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`an agreement between the parties concerning plaintiff’s production of those
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`renderings See, e.g., Florists’ Mutual Inc. Co. v. Lewis Taylor Farms, Inc., 2008
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`WL 875493, *9 n.8 (M.D.Ga.2008)(citing Sherman Foundry v. Mechanics, Inc., 517
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`S.W.2d 319, 322 (Tex.Civ.App.1974)(holding that invoices did not alter the terms of
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`the oral contract)).
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`Therefore, and again assuming the plaintiff established the existence of a valid
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`copyright, plaintiff’s sole outlet for the renderings he produced for the defendants was
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`the defendants themselves. Defendants commissioned the plaintiff to produce these
`4
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`renderings as a marketing tool for their various home designs. In other words, the
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`renderings in and of themselves have no value and no market.
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`Logic dictates that a rendering how a home will appear when built has no value without
`4
`accompanying home plans or blueprints. As plaintiff had no right to offer the blueprints or
`elevations defendants provided him for resale, he could have no market for his renderings other
`than the defendants.
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`10
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 11 of 17
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`Having carefully considered all of the evidence submitted by the parties, the
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`court is of the opinion that the relationship of the parties is one of a nonexclusive
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`license from plaintiff to defendants. As a marketing tool, the defendants had already
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`paid the plaintiff to create his renderings, and the plaintiff had granted the defendants
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`a permissive, non-exclusive license to use and reproduce his renderings . See e.g.
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`Korman v. HBC Fla., Inc., 182 F.3d 1291, 1293 (11 Cir.1999) (“While an exclusive
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`license to use copyrighted material must be written, a nonexclusive license can be
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`granted orally or can be implied from the conduct of the parties.”). The touchstone
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`for finding an implied license is intent. See John G. Danielson, Inc. v.
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`Winchester–Conant Props., Inc., 322 F.3d 26, 40 (1 Cir.2003). “Without intent [to
`st
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`permit the use], there can be no implied license.” Johnson v. Jones, 149 F.3d 494, 502
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`(6 Cir.1998). Courts have found implied licenses only in “narrow” circumstances
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`when one party “created a work at [the other’s] request and handed it over, intending
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`that [the other] copy and distribute it.” Effects Assocs., Inc. v. Cohen, 908 F.2d 555,
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`558 (9 Cir.1990); see also Korman v. HBC Fla., Inc., 182 F.3d 1291, 1293 (11
`th
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`th
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`Cir.1999) (determining that plaintiff gave defendant radio station implied,
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`nonexclusive license to use jingles she had written for station); Oddo v. Ries, 743
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`F.2d 630, 634 (9 Cir.1984) (“without such a license [to use], [the ] contribution ...
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`would have been of minimal value.”).
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 12 of 17
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`In I.A.E., Inc. v. Shaver, the Seventh Circuit, applying the law from Effects,
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`held that an implied nonexclusive license has been granted when (1) a person (the
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`licensee) requests the creation of a work, (2) the creator (the licensor) makes that
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`particular work and delivers it to the licensee who requested it, and (3) the licensor
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`intends that the licensee-requestor copy and distribute his work. Shaver, 74 F.3d 768,
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`776 (7 Cir.1996), citing Effects, 908 F.2d at 558-59. See also Falcon Enterprises,
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`Inc. v. Publishers Service, Inc. 438 Fed.Appx. 579, 581, 2011 WL 2356788, 1 (9th
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`Cir.2011)(The parties’ conduct demonstrates that Falcon granted Publishers an
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`ongoing nonexclusive implied license to use its content for a fee.... Falcon’s claim
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`that Publishers needed an express license for each image that Publishers published
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`is contradicted by the frequent and informal interactions between the parties).
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` In Morgan v. Hawthorne Homes, Inc., 2009 WL 1010476, 12 (W.D.Pa.2009),
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`there were similar claims to those here. The court stated
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`Morgan further claims that the defendants “have infringed on Mr.
`Morgan’s copyrights and continue to infringe on his copyrights by
`copying his work on their web cite without authority to do so.”
`Amended Complaint ¶ 7. In response, Hawthorne argues that pictorial
`representation of an architectural work does not constitute infringement.
`17 U.S.C. § 120(a) states:
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`§ 120. Scope of exclusive rights in architectural works
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`(a) Pictorial representations permitted.-The copyright in an
`architectural work that has been constructed does not
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 13 of 17
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`include the right to prevent the making, distributing, or
`public display of pictures, paintings, photographs, or other
`pictorial representations of the work, if the building in
`which the work is embodied is located in or ordinarily
`visible from a public place.
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`Thus, Hawthorne argues that with respect to the public display of the
`buildings on its website, because the houses are ordinarily visible from
`a public place, plaintiff has no claim. Morgan admits that houses were
`constructed using his plans and are ordinarily visible from a public
`place. He explains, however, that this section of the statute clearly
`relates to architectural works; he argues that it does not apply to
`“technical drawings.” According to plaintiff, he has a copyright in both
`the architectural work and the technical drawings. We find that to the
`extent that Morgan seeks damages for the copying of his work on their
`web site, as to the plans which were registered as architectural works
`only (Bedford Lot 30) he has no claim. See Amended Complaint at Pl.'s
`Ex. 3. We will therefore grant Hawthorne’s motion for summary
`judgment in part and find as a matter of law that Hawthorne (and also,
`therefore, Hanna Holdings) did not infringe on any copyright with
`respect to the pictorial representation of the architectural work Bedford
`Lot 30 on its website (Count III).
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`Morgan, 2009 WL 1010476 (W.D.Pa.2009).
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`Here, when the plaintiff announced to defendants that he had copyrighted his
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`renderings and they could not continue to use then without the payment of royalties,
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`the defendants ceased such use. Even if there was no implied license to use the
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`drawings in the very manner defendants did, Morgan, supra, again resolves the issue
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`of infringement in the defendants’ favor.
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 14 of 17
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`Given the foregoing, the court is unable to find that infringement occurred.
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`Rather, the court finds that the defendants’ use of the plaintiff’s renderings was based
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`on an implied non-exclusive license. Thus, the court shall enter summary judgment
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`on behalf of the defendants and against the plaintiff on this count of the complaint.
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`Because the court finds both that the copyright was presumptively valid, and
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`that no infringement occurred, the court does not reach the defendants’ argument
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`concerning the “first sale” doctrine. Defendants’ brief (doc. 36) at 18. The court
`5
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`notes only that the plaintiff argues in response, and as the court has found above, that
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`he transferred to defendants only a license to use and not ownership, and that the first
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`sale doctrine does not apply to a licensee. See Apple Inc. v. Psystar Corp., 658 F.3d
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`1150, 1155-1156 (9 Cir.2011); citing Vernor v. Autodesk, Inc., 621 F.3d 1102,
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`1107–08 (9 Cir.2010) (“The first sale doctrine does not apply to a person who
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`possesses a copy of the copyrighted work without owning it, such as a licensee.”).
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`The court has before it no evidence that the defendants actually made or sold further copies
`5
`of plaintiff's work . Thus, the “first sale” doctrine, if it applies, would protect the transfer of the
`copy purchased by defendants to a particular licensee. Additionally, the plaintiff produced no
`evidence of any licensee who actually used, copied, or transferred to another plaintiff's work.
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`Because the court has found that no infringement has occurred, the court also
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`does not consider the defendant’s argument that the plaintiff obtained his copyright
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`through fraud. 6
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`2. Breach of Contract:
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`Plaintiff asserts the parties had “a binding agreement” concerning the use of
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`plaintiff’s renderings. However, the only writings submitted to the court concerning
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`any agreement demonstrates that once the plaintiff questioned what the parties’
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`agreement was, they were unable to come to any agreement regarding the use of
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`plaintiff’s renderings by defendants, and ceased their business relationship. See
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`defendant ex Q.
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`As such, the court finds the defendants are entitled to judgment in their favor
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`on this issue, as no genuine issue of material fact remains on this count of the
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`plaintiff’s complaint, and the court shall so rule by separate Order.
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`B. Plaintiff’s motion for summary judgment (doc. 39):
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`1. Breach of Agreement
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`For the same reason that the plaintiff’s contract claim fails, this claim fails too.
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`As stated above, there is no evidence regarding agreement between the parties
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`Because the court has determined that the defendants’ use of the plaintiff’s drawings was
`6
`permissible, the plaintiff’s conversion count cannot survive as a matter of law. This too shall be
`dismissed by separate Order.
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 16 of 17
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`concerning the use by licensees of the art work in question. The first time this issue
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`arose, the parties parted ways. The sole evidence of an agreement is plaintiff’s
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`invoices, which really show only that defendants agreed to pay plaintiff a sum for
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`each rendering produced, a fact that is not in dispute anyway.
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`The court shall therefore deny the plaintiff’s motion on this claim, as there is
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`no genuine issue of material fact regarding the existence of an agreement.
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`2. Invalid Copyright
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`For the reasons set forth above, the court finds the plaintiff is entitled to
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`judgment in his favor and against the defendants on the issue of the validity of the
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`copyright. The court shall so rule by separate order.
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`3. Unjust enrichment
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`Defendants assert because they are the sole owner of the architectural drawings
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`and designs, plaintiff has been unjustly enriched because he has benefitted from
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`unauthorized use of defendants’ drawings and designs without defendants’
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`permission. For all of the reasons set out previously, the court finds this argument
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`to be without merit.
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`IV. Conclusion
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`Having carefully considered pleadings to date, the evidence submitted and the
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`arguments of the parties, the court is of the opinion that the plaintiff is entitled to
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`Case 5:11-cv-01511-IPJ Document 55 Filed 05/16/12 Page 17 of 17
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`judgment in his favor and against the defendants on the issue of the validity of the
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`copyright, as the court finds no genuine issue of material fact remains on that issue.
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`Additionally, the defendants are entitled to judgment in their favor and against the
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`plaintiff on the issue of copyright infringement, the court again finding no genuine
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`issue of material fact remains on that issue. The remainder of the cross-motions for
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`summary judgment (docs. 36 and 39) shall be denied for the reasons set forth herein.
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`Based on the foregoing rulings, the court is further of the opinion that the
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`pending motions to strike (docs. 38 and 49) have been rendered MOOT.
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`DONE and ORDERED this 16 day of May, 2012.
`th
`
`
`INGE PRYTZ JOHNSON
`U.S. DISTRICT JUDGE
`
`17