`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`
`TAMPA DIVISION
`
`DREAM CUSTOM HOMES,
`INC. ,
`
`Plaintiff,
`
`v.
`
`CASE NO. 8:08-CV-1189-T-17AEP
`
`MODERN DAY CONSTRUCTION,
`INC., etc., et al.,
`
`Defendants.
`
`ORDER
`
`This cause is before the Court on:
`
`Dkt. 78
`Dkt. 86
`Dkt. 87
`Dkt. 90
`Dkt. 91
`
`Dkt. 92
`
`Dkt. 93
`Dkt. 94
`Dkt. 95
`
`Dkt. 96
`
`Dkt. 100
`Dkt. 101
`Dkt. 102
`
`Dkt. 103
`
`Motion for Summary Judgment
`Notice of Filing - Deposition
`Notice of Filing - Deposition
`Motion for Summary Judgment
`Notice - Judicial Notice
`Response
`Notice of Filing
`Response - Judicial Notice
`Motion for Leave to File Reply
`Response
`Response
`Motion for Summary Judgment
`Response
`Request for Oral Argument
`
`The Amended Complaint (Dkt. 33), filed on July 20, 2009,
`
`includes Plaintiff Dream Custom Homes, Inc.'s claim for copyright
`
`infringement.
`
`Plaintiff Dream Custom Homes, Inc. alleges that
`
`Defendants copied and/or distributed Plaintiff's Copyrighted
`
`Work, and reproduced and/or distributed Plaintiff s Copyrighted
`
`Work by creating derivative floor plans and elevations which
`
`infringe Plaintiff's Copyrighted Work.
`
`Plaintiff attached copies
`
`of four Certificates of Registration to the Amended Complaint: 1)
`
`
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`Case 8:08-cv-01189-EAK-AEP Document 110 Filed 02/22/11 Page 2 of 15 PageID 1508
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`Case No. 8:08-CV-1189-T-17AEP
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`Don Calais plans 2, Architectural or Technical Drawings,
`
`effective date of registration 9/7/2005; 2) Don Calais June,
`
`2004, Architectural Work, effective date of registration
`
`9/7/2005; 3) Don Calais plans 1, Architectural or Technical
`
`Drawings, effective date of registration 9/7/2005; and 4) Don
`
`Calais January 2002, Architectural Work, effective date of
`
`registration 9/7/2005.
`
`These collectively comprise the
`
`Copyrighted Work.
`
`Plaintiff has also attached a representative
`
`facsimile of the alleged Infringing Work, a six-page copy of
`
`plans and elevations prepared by Defendant PAR Custom Drafting,
`
`dated 2/7/2008, for a residence for Defendant Anthony Piarulli to
`
`be constructed by Defendant Modern Day Construction, Inc. at
`
`11188 Kiska Wren Rd., in Hernando County, Florida.
`
`In Count I, Plaintiff Dream Custom Homes, Inc. alleges:
`
`In or around the ending months of 2007 and/or the
`15.
`beginning months of 2008, Defendants copied and/or
`distributed Plaintiff's Copyrighted Work and reproduced
`and/or distributed Plaintiff's Copyrighted Work by
`creating derivative floor plans and elevations
`(hereinafter the "Infringing Work") which infringe
`Plaintiff's Copyrighted Work and the '600, '601, '602,
`and '603 registrations alleged above
`
`Defendants, without right, license or authority,
`18.
`copied the Copyrighted Work in creating the Infringing
`Work, which was published and distributed by
`Defendants, and Defendant Modern Day Construction, Inc.
`is using the Infringing Work to construct a home for
`Defendant Anthony Piarrulli at 1118 Kiska Wren Road,
`Royal Highlands Unit 5, Block 302, Permit Number
`1221036, Hernando County, Florida.
`
`
`
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`Case No. 8:08-CV-l 189-T-17AEP
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`In the Amended Complaint, Plaintiff Dream Custom Homes, Inc.
`
`seeks entry of a temporary and final injunction, the seizure and
`
`impoundment of all copies made or used in violation of
`
`Plaintiff's copyrights, the award of actual damages and
`
`additional profits of Defendants, or the award of statutory
`
`damages resulting from Defendants' infringement of Plaintiff's
`
`Copyrighted Work, and the award of attorney's fees and costs.
`
`Plaintiff has requested a jury trial.
`
`I.
`
`Standard of Review
`
`Summary judgment should be rendered if the pleadings, the
`
`discovery and disclosure materials on file, and any affidavits
`
`show that there is no genuine issue as to any material fact and
`
`that the movant is entitled to judgment as a matter of law.
`
`Fed.R.Civ.P. 56(c).
`
`"The plain language of Rule 56(c) mandates
`the entry of summary judgment after adequate
`time for discovery and upon motion, against a
`party who fails to make a showing sufficient
`to establish the existence of an element
`essential to that party's case, and on which
`that party will bear the burden of proof at
`trial."
`
`Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
`
`The appropriate substantive law will guide the determination
`
`of which facts are material and which facts are... irrelevant.
`
`Anderson v. Liberty Lobbv, Inc., 477 U.S. 242, 248 (1986).
`
`All
`
`reasonable doubts about the facts and all justifiable inferences
`
`are resolved in favor of the non-movant.
`
`See Fitzpatrick v. City
`
`of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
`
`A dispute is
`
`
`
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`Case No. 8:08-CV-1189-T-17AEP
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`genuine "if the evidence is such that a reasonable jury could
`
`return a verdict for the non-moving party."
`
`See Anderson, 477
`
`U.S. at 248.
`
`But, "[i]f the evidence is merely colorable... or is
`
`not significantly probative...summary judgment may be granted."
`
`Id. at 249-50.
`
`In Herzoa v. Castle Rock Entertainment, Inc., 193 F.3d 1241,
`
`1247 (11th Cir. 1999), the Eleventh Circuit Court of Appeals
`
`states:
`
`Summary judgment historically has been withheld in copyright
`cases because courts have been reluctant to make subjective
`determinations regarding the similarity between two works. See.
`Hoehlirm v. Universal Citv Studios. Inc.. 618 F.2d 972. 977 (2d
`Cir.) (citing Amstcin v. Porter. 154 F.2d 464. 474 (2d Cir. 1946)).
`cert, denied, 449 U.S. 841. 101 S.Ct. 121. 66 L.Ed.2d 49 (1980).
`However, non-infringement may be determined as a matter of law
`on a motion for summary judgment, either because the similarity
`between two works concerns only non-copyrightable elements of
`the plaintiffs work, or because no reasonable jury, properly
`instructed, could find that the two works are substantially similar.
`Beal v. Paramount Pictures Corn., 20 F.3d 454 (11th Cir. 1994).
`cert, denied, 513 U.S. 1062, 115 S.Ct. 675, 130 L.Ed.2d 607
`(1994); Warner Bros. Inc. v. Am. Broadcasting Cos.. 720 F.2d 231,
`240 (2d Cir. 1983) (quoting 1loehline. 618 F.2d at 977) (emphasis
`in original) (citation omitted), aff'd 530 F.Supp. 1187
`(S.D.N.Y.1982), after remand. 654 F.2d 204 (2d Cir.), qffg and
`remanding. 523 F.Supp. 611 (S.D.N.Y.1981).
`
`The use of summary judgment has been approved in cases
`
`where: 1) because access has been established, the crucial issue
`
`is substantial similarity; 2) there may be substantial similarity
`
`with respect to the non-copyrightable elements of the two works
`
`compared; and 3) as to the protectable elements, there is
`
`substantial dissimilarity.
`
`Oravec v. Sunny Isles Ventures, L.C.,
`
`
`
`Case 8:08-cv-01189-EAK-AEP Document 110 Filed 02/22/11 Page 5 of 15 PageID 1511
`
`Case No. 8:08-CV-l L89-T-17AEP
`
`527 F.3d 1218 (11th Cir. 2008).
`
`Summary judgment is appropriate when the substantial
`
`similarity determination involves an architectural work that is
`
`merely a compilation of common design ideas.
`
`Intervest Const.,
`
`Inc. v. Canterbury Estate Homes, Inc.. 554 F.3d 914, 919-20 (11th
`
`Cir. 2008).
`
`The substantial similarity inquiry is "narrowed"
`
`when dealing with a compilation.
`
`Key Publications. Inc. v.
`
`Chinatown Today Publ'g Enter., Inc., 945 F.2d 509, 514 (2d Cir.
`
`1991).
`
`When viewed through the lens of compilation analysis,
`
`only the original, and thus protected arrangement of spaces,
`
`elements and other staple building components should be compared.
`
`Intervest Construction at 919.
`
`In the case of architectural
`
`plans, "modest dissimilarities are more significant than they may
`
`be in other types of art works."
`
`Howard v. Sterchi. 974 F.2d
`
`1272, 1276 (11th Cir. 1992) .
`
`II.
`
`Defendant's Motion for Summary Judgment
`
`Defendant Modern Day Construction, Inc. seeks entry of
`
`summary judgment in favor of Defendant because, at the level of
`
`protected expression, the differences between the Don Calais
`
`plans and elevations and the Piarulli plans and elevations are so
`
`significant that no reasonable, properly instructed jury could
`
`find the works substantially similar.
`
`Defendant Modern Day
`
`Construction, Inc. requests that the Court find, as a matter of
`
`law, that the Don Calais plans 1 and Don Calais plans 2 are not
`
`substantially similar to the Piarulli plans.
`
`Defendant Anthony Piarulli has filed a separate Motion for
`
`Summary Judgment (Dkt. 101) which seeks entry of summary judgment
`
`
`
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`Case No. 8:08-CV-1189-T-17AEP
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`in favor of Defendant Piarulli on the same basis as the Motion
`
`for Summary Judgment of Defendant Modern Day Construction, Inc.
`
`Defendants PAR Custom Drafting, Inc. and Phillip Roush have filed
`
`a separate Motion for Summary Judgment (Dkt. 90) which seeks
`
`entry of summary judgment on the same basis as the Motion for
`
`Summary Judgment of Defendant Modern Day Construction, Inc.
`
`Any
`
`reference to Defendant Modern Day Construction, Inc.'s Motion for
`
`Summary Judgment also includes the Motions for Summary Judgment
`
`of the other Defendants.
`
`Substantial similarity to show that an original work has
`
`been copied is not the same as substantial similarity to prove
`
`infringement.
`
`Substantial similarity to prove infringement is a
`
`narrower inquiry than probative similarity, focused only on the
`
`elements of the copyrighted work that are protectable and whether
`
`whatever copying took place appropriated those elements.
`
`Substantial similarity exists "where an average lay observer
`
`would recognize the alleged copy as having been appropriated from
`
`the copyrighted work."
`
`Leigh v. Warner Bros., Inc., 212 F.3d
`
`1210, 1214 (11th Cir. 2000).
`
`"An 'average lay observer'
`
`presumably is an individual who, without any vested interest in
`
`the governing issue, is sufficiently informed and alert to
`
`identify precisely the differences in the competing designs, yet
`
`sufficiently informed and independent to fairly identify and
`
`assess the similarities; that is, at a minimum, neither an
`
`engaged expert nor an oblivious passerby."
`
`Arthur Rutenberq
`
`Homes, Inc. v. Malonev, 891 F.Supp. 1560, 1567 (M.D. Fla. 1995).
`
`
`
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`Case No. 8:08-CV-l 189-T-17AI
`
`•i>
`
`III.
`
`Plaintiff's Response
`
`Plaintiff responds that there are disputed issues of
`
`material fact which preclude the entry of summary judgment as to
`
`the validity of Plaintiff's copyright registrations, and
`
`Defendant Modern Day's infringement of those registrations.
`
`As
`
`to the architectural works Don Calais June 2004 and Don Calais
`
`January 2002 and the architectural drawings Don Calais plans 2
`
`and Don Calais plans 1, Plaintiff asserts that the copyrighted
`
`works are strikingly similar in protectable expression to the
`
`Piarulli plans and elevations.
`
`IV.
`
`Statement of Facts
`
`1.
`
`On August 29, 2005, Plaintiff Dream Custom Homes, Inc.
`
`submitted four applications for copyright registration:
`
`1) Don Calais plans 2, Architectural or Technical Drawings; 2)
`
`Don Calais June, 2004, Architectural Work; 3) Don Calais plans 1,
`
`Architectural or Technical Drawings; and 4) Don Calais January,
`
`2002, Architectural Work.
`
`2.
`
`Don Calais plans 2 is registered as VA 1-311-600, and
`
`the effective date of registration is 9/7/2005.
`
`The registration
`
`indicates the date of first publication was 4/30/2004.
`
`3.
`
`Don Calais June, 2004 is registered as VA-1-311-601, and
`
`the effective date of registration is 9/7/2005.
`
`The registration
`
`indicates the date of first publication was 4/30/2004.
`
`4.
`
`Don Calais plans 1 is registered as VA-1-311-602, and
`
`
`
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`Case No. 8:08-CV-l 189-T-17AEP
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`the effective date of registration is 9/7/2005.
`
`The registration
`
`form indicates the date of first publication was 11/30/2001.
`
`5.
`
`Don Calais January 2002 is registered as VA-1-311-603,
`
`and the effective date of registration is 9/7/2005.
`
`The
`
`registration form indicates the date of first publication was
`
`11/30/2001.
`
`6.
`
`Don Calais plans 2 is a reverse floor plan of Don Calais
`
`plans 1 (Dkt. 92-12, p. 1).
`
`For example, the Garage and Master
`
`Bedroom are on the left side on the Don Calais plans 1, but are
`
`on the right side of the Don Calais plans 2.
`
`In addition, there
`
`are minor variations between Don Calais plans 1 and Don Calais
`
`plans 2.
`
`In the Don Calais plans 1, there are three windows on
`
`the rear wall of the Master Bedroom; in the Don Calais plans 2,
`
`there is a sliding door to the Lanai, the angle on the outside
`
`corner is squared-off, and two windows are added on the long
`
`outside wall.
`
`The two single-hung windows at the rear of the
`
`Family Room in the Don Calais plans 1 are replaced by a single
`
`ellipse-top window in the Don Calais plans 2.
`
`In Bath 2, the
`
`ten-foot ceiling in the Don Calais plans 1 is replaced by an
`
`eight-foot ceiling in the Don Calais plans 2, and a window and
`
`plant shelf are added.
`
`In the Kitchen of the Don Calais plans 1,
`
`the dishwasher is at the end of the counter; in the Don Calais
`
`plans 2 the dishwasher is moved to next to the sink, and the sink
`
`is moved over.
`
`Between Bedrooms 2 and 3, the "recessed arch" in
`
`the Don Calais plans 1 becomes "overhead niche" in the Don Calais
`
`plans 2, and an arch is added over the entrance.
`
`7.
`
`Mr. Matt Burich, Vice President of Dream Custom Homes,
`
`
`
`Case 8:08-cv-01189-EAK-AEP Document 110 Filed 02/22/11 Page 9 of 15 PageID 1515
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`Case No. 8:08-CV-l 189-T-17AEP
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`Inc., testified that he and his brother jointly designed the Don
`
`Calais in 2001 on a personal computer, using "3-D Home
`
`Architect." (Dkt. 86-1, pp. 48-50).
`
`When Plaintiff was ready to
`
`build the house, the floor plan was printed and taken to a
`
`draftsman to make blueprints. (Dkt. 86-1, pp. 53-54).
`
`The design
`
`was created as a work-for-hire for Dream Custom Homes, Inc.
`
`Mr. Burich testified that, in addition to the floor plan, the
`
`original features of the Don Calais design include the front
`
`entry, with two columns on each side and a turret-style roof, the
`
`quoins placed at the edge of the walls which form the exterior
`
`angle of the wall, the placement of exterior lights, and the
`
`placement and shape of the windows, including the faux window and
`
`regular window in the shower. (Dkt. 86-1, pp. 65-86).
`
`Mr. Burich
`
`testified the roof was a hip roof because a hip roof is stronger
`
`for hurricanes. (Dkt. 86-1, p. 65).
`
`8.
`
`Mr. Matt Burich testified that the Don Calais design was
`
`marketed by construction of a model home in 2001, by inclusion in
`
`the 2001 "Parade of Homes," a newspaper supplement which
`
`showcases new home designs of local builders, other newspaper
`
`advertising, and Plaintiff's website, which was created in 2003.
`
`(Dkt. 86-1, pp. 38-39).
`
`While Plaintiff has not provided any
`
`brochures from 2001/2002, in his Affidavit, Mr. Burich alleges
`
`that Plaintiff began publishing the Don Calais plans 1 and Don
`
`Calais plans 2 "architectural work/technical drawings" via
`
`brochures in 2001/2002 (Dkt. 92-6).
`
`9.
`
`Mr. Burich testified that the Don Calais II was created
`
`in 2003.
`
`(Dkt. 86-1, p. 55).
`
`Mr. Burich testified that the
`
`differences between the Don Calais and the Don Calais II include:
`
`1) no pool bath in Don Calais II; the bath is between the second
`
`
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`Case No. 8:08-CV-l 189-T-17AEP
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`and third bedrooms; 2) the 2 and h car garage in the Don Calais
`
`is a 2 car garage in the Don Calais II; 3) the dimensions are
`
`different; 4) the lanai is different. (Dkt. 86-1, pp. 56-58).
`
`Mr. Burich testified that the Don Calais is published on
`
`Plaintiff's website, but the Don Calais II has never been put on
`
`Plaintiff's website. (Dkt. 86-3, p. 20).
`
`10.
`
`Mr. Matt Burich testified that he telephoned Defendant
`
`Anthony Piarulli and told him the plans for the Don Calais were
`
`copyrighted, and if Defendant Piarulli built Dream Custom Homes,
`
`Inc.'s house, there would probably be a problem.
`
`Mr. Burich
`
`further testified that he told Defendant Piarulli that Modern Day
`
`Construction, Inc. had been or was being sued for copyright
`
`infringement.
`
`(Dkt. 86-2, p. 39).
`
`11.
`
`Mr. Matt Burich testified that the basis of Plaintiff's
`
`claim for knowing and intentional infringement on the Don Calais
`
`II copyright is that Defendant Piarulli came to Plaintiff's model
`
`home.
`
`(Dkt. 86-3, p. 22).
`
`Mr. Burich did not identify any facts
`
`supporting Plaintiff's claim that Defendant Modern Day
`
`Construction, Inc. had actual notice of Plaintiff's copyright.
`
`(Dkt. 86-3, pp. 21-22) .
`
`12.
`
`Dream Custom Homes, Inc. has built thirty-four Don
`
`Calais homes in Hernando County and Marion County, and one Don
`
`Calais II home.
`
`Seven Don Calais homes have been built in Citrus
`
`County. (Dkt. 87-3, p. 17).
`
`13.
`
`In his deposition, Mr. Burich testified that the
`
`majority of the homes built by Plaintiff Dream Custom Homes, Inc.
`
`are homes that are generally based on Plaintiff's copyrighted
`
`10
`
`
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`Case No. 8:08-CV-l 189-T-17AEP
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`plans, but which are modified in various ways to fit the needs of
`
`each purchaser, such as by adding a bedroom or bathroom, or by
`
`bumping-out a wall.
`
`(Dkt. 87-1, pp. 11-14).
`
`14.
`
`In 2005, Defendant Anthony Piarulli purchased the
`
`vacant lot on which Defendant Piarulli had his home built.
`
`Defendant Piarulli visited Plaintiff's model home center on at
`
`least two occasions, in December, 2006 and in January, 2008 (Dkt.
`
`92-8).
`
`Defendant Piarulli testified that he visited two model
`
`homes constructed by Plaintiff, the Don Calais model at 8480
`
`Spring Hill Drive, Spring Hill, FL, and the Don Calais model at
`
`12377 Spring Hill Drive, Spring Hill, FL.
`
`Defendant Piarulli
`
`further testified that, by 2008, Defendant was more serious about
`
`having a home built.
`
`Defendant Piarulli testified that in 2008
`
`he met with Plaintiff's employee, Tina Yuhasz, who provided some
`
`specific price information, what the price included and the costs
`
`for upgrades, but not a final price on the home Defendant
`
`proposed to build (Dkt. 92-7, p. 23).
`
`Defendant Piarulli also
`
`testified that Tina Yuhasz provided a contact person, Gina Hunt,
`
`for Defendant Piarulli to arrange financing.
`
`15.
`
`Plaintiff Dream Custom Homes, Inc. has provided a
`
`"work-up" sheet on the home Plaintiff proposed to build for
`
`Defendant Piarulli, which includes specific price information, a
`
`specific design (Don Calais II), and a final proposed price of
`
`$170,034.00 (Dkt. 92-11).
`
`The work-up sheet indicates that the
`
`price does not include excavation or a well.
`
`16.
`
`Defendant Anthony Piarulli testified that his best
`
`friend, Anthony Cresenzo, suggested that Defendant Piarulli
`
`contact Marc Delape, of Modern Day Construction, Inc., to build
`
`11
`
`
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`Defendant Piarulli's home.
`
`Defendant Piarulli testified that he
`
`met with Marc Delape at Mr. Delape's home on Shorecrest Court,
`
`and told Mr. Delape what Defendant Piarulli wanted in a home,
`
`which was similar to Mr. Delape's residence (Dkt. 92-7, p. 12),
`
`only on a smaller scale.
`
`Defendant Piarulli denied bringing any
`
`materials with him to the meeting with Mr. Delape.
`
`(Dkt. 92-7,
`
`p. 11).
`
`Defendant Piarulli testified that Mr. Delape showed
`
`Defendant floor plans for a home Mr. Delape had constructed on
`
`Flock Avenue, for Julian Norris.
`
`Defendant Piarulli testified
`
`that he discussed prices and financing with Mr. Delape (Dkt. 92-
`
`7, pp. 13-14).
`
`After Defendant Piarulli and Mr. Delape agreed on
`
`some changes to the Flock and Shorecrest designs, the proposed
`
`plans were sent to PAR Custom Drafting, Inc. for a final plan to
`
`be drafted (Dkt. 92-7, pp. 16-17).
`
`Defendant Piarulli testified
`
`that changes were made to the master bedroom, rear lanai, and
`
`room dimensions.
`
`Defendant Piarulli testified that he signed a
`
`contract with Modern Day Construction, Inc. on February 14, 2008,
`
`for a total price of $170,000, which included excavation and a
`
`well.
`
`17.
`
`Defendant Anthony Piarulli denied that Defendant
`
`Piarulli showed Mr. Delape of Defendant Modern Day Construction,
`
`Inc. any floor plans or brochures from Plaintiff Dream Custom
`
`Homes, Inc., nor did Defendant Piarulli tell Mr. Delape that
`
`Defendant Piarulli had visited Dream Custom Homes, Inc. before
`
`meeting with Mr. Delape (Dkt. 92-7, p. 31).
`
`18.
`
`In his deposition, Mr. Marc Delape, president of
`
`Defendant Modern Day Construction, Inc., denied that he ever
`
`visited any model constructed by Plaintiff Dream Custom Homes,
`
`Inc.
`
`Mr. Delape denied that he had any computer software for
`
`12
`
`
`
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`Case No. 8:08-CV-l 189-T-17AEP
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`drafting plans (Dkt. 92-10, p. 28).
`
`Mr. Delape testified that he
`
`had plans for other houses that Mr. Delape had built on hand when
`
`he met with Defendant Piarulli (Dkt. 92-10, p. 30), and that
`
`changes were made to the plans to accommodate Defendant
`
`Piarulli's lot, then sent to PAR Custom Drafting, Inc. for a set
`
`of plans to be made for the proposed Piarulli home (Dkt. 92-7, p.
`
`33) .
`
`19.
`
`Defendant Phillip Roush, president of Defendant PAR
`
`Custom Drafting, Inc., has operated that business since 1996
`
`(Dkt. 92-9, p. 7).
`
`Defendant Roush uses Auto CAD to draw plans
`
`(Dkt. 92-9, p. 13).
`
`Defendant Roush testified that he drafted
`
`plans for Mr. Marc Delape's home on Shorecrest from a hand sketch
`
`that Mr. Delape provided (Dkt. 92-9, p. 24).
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`Defendant Roush
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`testified that the plans for the Julian house on Flock Avenue
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`v/ere based on the plans for Mr. Delape's home on Shorecrest (Dkt.
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`92-9, p. 26).
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`Defendant Roush testified that he has never been
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`to Plaintiff's model center (Dkt. 92-9, p. 27).
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`Defendant Roush
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`testified that Mr. Delape brought him a plan from Mr. Delape's
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`previous customer "Julian", which was marked with changes (Dkt.
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`92-9, p. 24), and Defendant Roush provided plans to Mr. Delape
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`which incorporated the changes.
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`Defendant Roush did not meet
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`with Defendant Piarulli; any discussion Defendant Roush had as to
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`the Piarulli plans was only with Mr. Marc Delape (Dkt. 92-9, p.
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`23) .
`
`20.
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`In his Affidavit (Dkt. 92-6), Mr. Matt Burich states
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`that Defendant Modern Day Construction, Inc.'s personal
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`residence, 8420 Shorecrest Court, Spring Hill, FL, 34608, is
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`approximately 1.21 miles from a model home constructed by
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`Plaintiff in accordance with Don Calais June 2004 architectural
`
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`Case 8:08-cv-01189-EAK-AEP Document 110 Filed 02/22/11 Page 14 of 15 PageID 1520
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`Case No. 8:08-CV-l 1S9-T-17AEP
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`work, located on Spring Hill Drive, Spring Hill, FL.
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`Mr. Burich
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`further states that Defendant PAR Custom Drafting, Inc.'s place
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`of business, 12527 Spring Hill Dr., Spring Hill, FL, 34609 is
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`approximately .38 miles from Plaintiff's model home center on
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`Spring Hill Drive, Spring Hill, FL.
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`21.
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`The plans for the Piarulli home are dated February 7,
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`2008.
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`22.
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`Mr. Marc Delape obtained the permits to construct
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`Defendant Anthony Piarulli's home at 11188 Kiska Wren Rd.
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`The
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`home was constructed between May and September, 2008.
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`V.
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`Discussion
`
`A.
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`Scope of Plaintiff's Claims
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`In the Complaint, Plaintiff alleges that Defendants copied
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`and reproduced the Copyrighted Work by creating derivative floor
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`plans and elevations which infringe the Copyrighted Work and
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`Plaintiff's registrations.
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`The Copyright Act grants the copyright holder "exclusive"
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`rights to use and authorize the use of his work in five qualified
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`ways, namely, 1) to reproduce the work, 2) to prepare derivative
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`works, 3) to distribute copies of the work to the public, 4) to
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`perform the work publicly and 5) to display the work publicly.
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`Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 432-33
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`(1984).
`
`See 17 U.S.C. Sec. 106 (six exclusive rights).
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`"'Copying' is regularly used as a shorthand to refer to the
`
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`Case 8:08-cv-01189-EAK-AEP Document 110 Filed 02/22/11 Page 15 of 15 PageID 1521
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`Case No. 8:08-CV-l 189-T-17AEP
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`infringement of a copyright holder's exclusive rights under a
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`copyright."
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`Country Kids 'N City Slicks, Inc. v. Sheen, 77 F.3d
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`1280, 1284 (10th Cir. 1996) . The "right to reproduce a
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`copyrighted work" means the right to produce a material object in
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`which the copyrighted work is duplicated, transcribed, imitated,
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`or simulated in a fixed form from which it can be "perceived,
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`reproduced or otherwise communicated either directly or with the
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`aid of a machine or device."
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`The right to prepare derivative
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`works is broader than the right to reproduce a copyrighted work,
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`in that reproduction requires fixation in copies, but the
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`preparation of derivative works does not.
`
`See House Report No.
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`94-1476, Notes to 17 U.S.C. Sec. 106.
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`"To be an infringement, the "derivative work" must be "based
`
`on the copyrighted work," and the definition in section 101 [17
`
`U.S.C. Sec. 101] refers to
`
`"a translation, musical arrangement,
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`dramatization, fictionalization, motion picture version, sound
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`recording art reproduction, abridgment, condensation, or any
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`other form in which a work may be recast, transformed or
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`adapted."
`
`To constitute a violation of Sec. 106(2), the
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`infringing work must incorporate a portion of the copyrighted
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`work in some form."
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`Id.
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`Clause (3) of section 106 establishes the exclusive right of
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`publication:
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`The right to "distribute copies or phonorecords of
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`the copyrighted work to the public by sale or other transfer of
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`ownership, or by rental, lease or lending."
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`The copyright owner
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`[has] the right to control the first public distribution of an
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`authorized copy of [the] work, whether by sale, gift, loan, or
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`some rental or lease arrangement.
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`Any unauthorized public
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`distribution of copies or phonorecords [of the copyrighted work]
`
`15