Case 1:09-cv-00964-WYD-CBS Document 185 Filed 03/08/11 USDC Colorado Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Chief Judge Wiley Y. Daniel
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`Civil Action No. 09-cv-00964-WYD-CBS
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`HOME DESIGN SERVICES, INC.,
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`Plaintiff,
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`v.
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`TERRY TRUMBLE and
`JANELLE TRUMBLE,
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`Defendants.
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`ORDER
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`THIS MATTER is before me on Plaintiff’s Motion for Partial Summary Judgment
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`and Memorandum of Law in Support [ECF No. 64], filed May 12, 2010. Plaintiff seeks
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`summary judgment (1) that it owns a valid copyright in an architectural work registered
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`as HDS-2802; (2) on the issue of actual damages; and (3) on the Defendants’
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`affirmative defenses. Defendants filed a response on June 7, 2010 [ECF No. 104] and
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`Plaintiff filed a reply in support of its motion on July 27, 2010 [ECF No. 104]. For the
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`reasons stated below, Plaintiff’s Motion for Partial Summary Judgment is granted in part
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`and denied in part.
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`I.
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`INTRODUCTION
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`Plaintiff Home Design Services, Inc. filed this action on April 27, 2009 alleging
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`that Defendants Terry and Janelle Trumble violated the Copyright Act by designing and
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`-1-
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Chief Judge Wiley Y. Daniel
`
`Civil Action No. 09-cv-00964-WYD-CBS
`
`HOME DESIGN SERVICES, INC.,
`
`Plaintiff,
`
`v.
`
`TERRY TRUMBLE and
`JANELLE TRUMBLE,
`
`Defendants.
`
`ORDER
`
`THIS MATTER is before me on Plaintiff’s Motion for Partial Summary Judgment
`
`and Memorandum of Law in Support [ECF No. 64], filed May 12, 2010. Plaintiff seeks
`
`summary judgment (1) that it owns a valid copyright in an architectural work registered
`
`as HDS-2802; (2) on the issue of actual damages; and (3) on the Defendants’
`
`affirmative defenses. Defendants filed a response on June 7, 2010 [ECF No. 104] and
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`Plaintiff filed a reply in support of its motion on July 27, 2010 [ECF No. 104]. For the
`
`reasons stated below, Plaintiff’s Motion for Partial Summary Judgment is granted in part
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`and denied in part.
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`I.
`
`INTRODUCTION
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`Plaintiff Home Design Services, Inc. filed this action on April 27, 2009 alleging
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`that Defendants Terry and Janelle Trumble violated the Copyright Act by designing and
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`Case 1:09-cv-00964-WYD-CBS Document 185 Filed 03/08/11 USDC Colorado Page 2 of 8
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`constructing a home allegedly copied from Home Design’s registered architectural
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`plan–known as the “2802" plan. The Trumbles assert that they did not infringe upon
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`Home Design’s copyright and that their home was not copied from any source.
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`II.
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`STANDARD OF REVIEW
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`Under Federal Rule of Civil Procedure 56(c) summary judgment is warranted
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`when “the pleadings, the discovery and disclosure materials on file, and any affidavits
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`show that there is no genuine issue as to any material fact and that the movant is
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`entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed .2d 202 (1986); Ross v. The
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`Board of Regents of the University of New Mexico, 599 F.3d 1114, 1116 (10th Cir.
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`2010). A disputed fact is “material” if under the relevant substantive law it is essential to
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`proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32
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`(10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial
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`and preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192,
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`1198 (10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a
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`reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119
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`F.3d 837, 839 (10th Cir. 1997).
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`When reviewing a motion for summary judgment, a court must “view the
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`evidence and draw all reasonable inferences therefrom in the light most favorable to the
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`party opposing summary judgment.” Atlantic Richfield Co. v. Farm Credit Bank of
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`Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quotation omitted). In order to rebut a
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`motion for summary judgment, an opposing party must present evidence permitted by
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`Case 1:09-cv-00964-WYD-CBS Document 185 Filed 03/08/11 USDC Colorado Page 3 of 8
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`Rule 56 setting forth specific facts that would be admissible at trial. Fed.R.Civ.P.
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`56(e)(2); Adams v. Am. Guarantee and Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.
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`2000).
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`III.
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`ANALYSIS
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`A.
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`Ownership of a Valid Copyright
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`There are two elements to a copyright infringement claim: “(1) ownership of a
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`valid copyright, and (2) copying of constituent elements of the work that are original.”
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`Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113
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`L.Ed.2d 358 (1991). The plaintiff bears the burden of proof on both elements. Palladium
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`Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005).
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`Home Design asserts that it is entitled to summary judgment on the first
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`element–that it owns a valid copyright in the 2802 architectural work. “To show
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`ownership of a valid copyright and thus satisfy the first prong under Feist, a plaintiff
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`must prove that the work as a whole is original and that the plaintiff complied with
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`applicable statutory formalities.” CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc.,
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`97 F.3d 1504, 1513 (1st Cir. 1996); see also 4-13 Nimmer on Copyright § 13.01.
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`Although a timely obtained certificate of registration ordinarily constitutes prima facie
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`evidence of the validity of a copyright, here, it is undisputed that Home Design did not
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`acquire its copyright registration until more than five years after publication. As such,
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`Home Design’s registration is not entitled to a presumption of validity. 17 U.S.C. §
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`410(c)(“In any judicial proceedings the certificate of a registration made before or within
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`five years after first publication of the work shall constitute prima facie evidence of the
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`Case 1:09-cv-00964-WYD-CBS Document 185 Filed 03/08/11 USDC Colorado Page 4 of 8
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`validity of the copyright and of the facts stated in the certificate. The evidentiary weight
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`to be accorded the certificate of a registration made thereafter shall be within the
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`discretion of the court.”).
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`Both parties have submitted numerous facts that go to the originality of the work
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`at issue in this case as well as the issue of compliance with statutory formalities. Even
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`if Home Design was entitled to a statutory presumption of validity based on its
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`registration, which it is not, I would be reluctant to grant summary judgment that Home
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`Design has a valid copyright. Construing the evidence in the light most favorable to the
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`Trumbles, there are genuine issues of material fact regarding the originality of the work
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`at issue. Accordingly, Home Design’s motion for summary judgment that it owns a valid
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`copyright is denied.
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`B.
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`Actual Damages
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`Home Design next argues for summary judgment on the issue of actual
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`damages. I agree with the Trumbles, however, that it is premature to rule on the issue
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`of damages before Home Design has prevailed on the issue of liability. Even though a
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`successful plaintiff is entitled to actual damages, as well as profits that are attributable
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`to infringement, see 17 U.S.C. 504(b), here, Home Design has not demonstrated that it
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`is entitled to summary judgment on the issue of liability. Indeed Home Design has not
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`even moved for summary judgment on the issue of liability. As such, I decline to
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`address the issue of damages at this point in the case.
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`C.
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`Defendants’ Affirmative Defenses
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`Home Design has also moved for summary judgment on several of the Trumbles’
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`Case 1:09-cv-00964-WYD-CBS Document 185 Filed 03/08/11 USDC Colorado Page 5 of 8
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`affirmative defenses, including their second affirmative defense (failure to mitigate
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`damages), the third affirmative defense (statute of limitations), the seventh affirmative
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`defense (publication and construction prior to December 1, 1990), the ninth affirmative
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`defense (originality), the tenth and sixteenth affirmative defenses (public domain), the
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`twelfth affirmative defense (failure to give proper copyright notice), the thirteenth,
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`twenty-fifth, and twenty-sixth affirmative defenses (innocent infringement), the
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`fourteenth affirmative defense (copyright abuse or misuse); the seventeenth (lack of
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`copyrightable material), the twentieth affirmative defense (first sale doctrine), and the
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`twenty-ninth affirmative defense (invalid copyright registration).
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` As an initial matter, I disagree with the proposition that summary judgment is
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`appropriate on several of the Trumbles’ defenses simply because those defenses are
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`more appropriately styled as denials. See Lifeblood Biomedical, Inc., Opt-In Trust v.
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`Mann (In re Sender), 423 F. Supp. 2d 1155, 1163 (D. Colo. 2006) (“A defense should
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`not be stricken if there is any real doubt about its validity, and the benefit of any doubt
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`should be given to the pleader.”) (internal quotations and citations omitted). Given that
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`a cautious pleader will often label an argument as an affirmative defense, there is no
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`reason to strike such a denial where the other side is not prejudiced by any redundancy.
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`Id. As such, I decline to strike, or grant summary judgment, as to any of the Trumbles’
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`affirmative defenses on the ground that the defense is more appropriately a denial of
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`Plaintiff’s claim.
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`Nevertheless, construing the facts in the light most favorable to the Trumbles, I
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`find that summary judgment is appropriate on two of their affirmative defenses.
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`Case 1:09-cv-00964-WYD-CBS Document 185 Filed 03/08/11 USDC Colorado Page 6 of 8
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`First, I find there is no question of fact or law that might allow the Trumbles’
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`failure to mitigate damages defense to succeed, and the defense is therefore insufficient
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`as a matter of law. With respect to their failure to mitigate defense, the Trumbles argue
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`that Home Design’s owner personally investigated alleged infringement in the general
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`geographic area of their allegedly infringing home, but that Home Design then failed to
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`“take any preemptive steps to give written notice to any notice builders, designers,
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`drafters, realtors, etc. of the self described ‘epidemic’ [of copyright infringement] to
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`prevent further infringement.” But the Trumbles offer no authority showing that Home
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`Design was required to take such preemptive steps. Even if Home Design was aware
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`of possible infringements of its copyrights in the same geographic area as the Trumbles,
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`Home Design had no duty to preemptively warn individuals like the Trumbles not to
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`violate copyright law. Accordingly, summary judgement is granted in favor of Home
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`Design on Defendants’ second affirmative defense of failure to mitigate.
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`Second, I find that summary judgment is appropriate on the Trumbles’ third
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`affirmative defense–the statute of limitations defense. The statute of limitations for
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`copyright infringement is three years. 17 U.S.C. § 507(b) (“No civil action shall be
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`maintained under the provisions of this title unless it is commenced within three years
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`after the claim accrued.”). “A cause of action for copyright infringement under section
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`507(b) of the Copyright Act accrues ‘when one has knowledge of a violation or is
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`chargeable with such knowledge.’ ” Fisher v. United Feature Syndicate, Inc., 37
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`F.Supp.2d 1213, 1216 (D.Colo.1999) (quoting Roley v. New World Pictures, Ltd., 19
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`F.3d 479, 481 (9th Cir.1994)); see also Home Design Services, Inc. v. B & B Custom
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`Case 1:09-cv-00964-WYD-CBS Document 185 Filed 03/08/11 USDC Colorado Page 7 of 8
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`Homes, LLC, 509 F.Supp.2d 968, 972 (D.Colo. 2007) (“[W]hen a statute of limitations is
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`silent on the matter a claim accrues when the plaintiff knows or has reason to know of
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`the existence and cause of the injury which is the basis of his action.”).
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`Here, Home Design alleges that the Trumbles infringed Home Design’s copyright
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`by “designing, and constructing one or more residences which were copied largely or
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`were exact duplicates” of Home Design’s copyrighted architectural plans. Pl.’s Compl. ¶
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`11. It is undisputed that the Trumbles did not receive a building permit to begin
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`construction of their home until June 23, 2006 and that construction was not complete
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`until sometime in February 2007. (Trumble Deposition 70:8 - 71:8). Home Design’s
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`claim, therefore, could not have accrued prior to June 23, 2006, at the earliest.
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`Assuming that its claim began to accrue on that date (which seems unlikely given that
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`construction may not have even began on that date) and assuming that the Home
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`Design had reason to know of the infringement on that date, the statute of limitations
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`ran out three years later, on June 23, 2009. Because Home Design filed this lawsuit on
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`April 28, 2009, there is no possibility that its claim has been extinguished by the statute
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`of limitations, which expired two months later, at the very earliest. Accordingly, Home
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`Design’s motion for summary judgment is granted as to the Trumbles’ third affirmative
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`defense.
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`I find that the Trumbles’ remaining affirmative defenses survive summary
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`judgment. Drawing all inferences in favor of the Trumbles, there are genuine issues of
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`material fact regarding the remaining defenses challenged by Home Design, and
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`accordingly, Home Design’s motion for summary judgment with respect to such
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`Case 1:09-cv-00964-WYD-CBS Document 185 Filed 03/08/11 USDC Colorado Page 8 of 8
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`defenses is denied.
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`IV.
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`CONCLUSION
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`Based upon the foregoing, it is
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`ORDERED that Plaintiff’s Motion for Summary Judgment as to the Defendants’
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`second and third affirmative defenses is GRANTED. It is
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`FURTHER ORDERED that Plaintiff’s Motion for Summary Judgement is DENIED
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`in all other respects.
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`Dated: March 8, 2011
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`BY THE COURT:
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`s/ Wiley Y. Daniel
`Wiley Y. Daniel
`U. S. District Judge
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