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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`Case Number: 02-CV-73188
`
`JUDGE PAUL D. BORMAN
`UNITED STATES DISTRICT COURT
`
`MICHAEL A. CHIRCO and DOMINIC
`MOCERI,
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`Plaintiffs,
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`v.
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`GATEWAY OAKS, LLC; ARROW
`BUILDING CO., INC.; THE DESIGN GROUP
`LLC; N&D DEVELOPERS, LLC; M.C.S.
`ASSOCIATES, INC.; SALVATORE
`SARAFINO; JOSEPH P. D’ANGELO; M.C.S.
`ASSOCIATES, INC.; JIM JONES; and
`CALVIN HALL, individually and d/b/a
`CALVIN HALL and ASSOCIATES,
`
`Defendants.
`___________________________________ /
`
`OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY
`JUDGMENT ON PLAINTIFFS’ CLAIMS
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`Now before the Court are Defendants’ motions for summary judgment on Plaintiffs’
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`claims. The Court heard oral argument on July 6, 2005. Having considered the entire record,
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`and for the reasons that follow, the Court GRANTS the instant motions.
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`I. FACTS
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`On August 2, 2002, Michael A. Chirco and Dominic Moceri (collectively “Plaintiffs”)
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`filed the instant action against Gateway Oaks, L.L.C. (“Gateway”), Arrow Building Co., Inc.
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`(“Arrow”), The Design Group, L.L.C. (“Design”), N & D Developers, L.L.C. (“N & D”), Joseph
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`D’Angelo (“D’Angelo”), Salvatore Sarafano (“Sarafano”), M.C.S. Associates, Inc. (“M.C.S.”),
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`Jim Jones (“Jones”), and Calvin Hall individually and d/b/a Calvin Hall and Associates (“Hall”)
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`(collectively “Defendants”), alleging copyright infringement pursuant to 17 U.S.C. § 101 et seq.
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`Plaintiffs are in the business of developing, leasing and selling real estate, including
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`condominiums, apartments and single family homes, in the Detroit metropolitan area,
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`specifically in Oakland and Macomb County. (Compl. at ¶ 15-16.)
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`Plaintiffs have previously worked with a third party architect, Ronald E. Mayotte &
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`Associates (“Mayotte”), to create technical architectural plans, and Plaintiffs have constructed
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`apartments/condominiums in accordance with these plans. (Id. at ¶ 17-18.) Specifically,
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`Mayotte and Plaintiffs originally collaborated to create architectural plans for an apartment
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`complex commonly known as the Manors at Knollwood (“Knollwood”) in Macomb County,
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`Michigan. (Id. at ¶ 19.) In 1997, Mayotte obtained copyright registrations for both the
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`Knollwood architectural plans (“Knollwood plans”), U.S. Copyright Registration No. VAu 356-
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`238, and the Knollwood architectural buildings (“Knollwood buildings”), U.S. Copyright
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`Registration No. VAu 356-237).1 (Id. Ex. A.)
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`Plaintiffs and Mayotte subsequently collaborated to develop architectural plans for a
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`condominium project that is commonly known as Aberdeen Village (“Aberdeen”), located in
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`Sterling Heights, Michigan. (Id. at ¶ 16, 18.) Mayotte obtained copyright registrations for both
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`the Aberdeen architectural plans (“Aberdeen plans”), U.S. Copyright Registration No. VAu 356-
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`236, and the Aberdeen architectural buildings (“Aberdeen buildings”), U.S. Copyright
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` 1 In an earlier case involving different defendants, Plaintiffs conceded that the Knollwood
`buildings’ copyright registration was invalid because construction of the Knollwood buildings
`began in late 1988, before the enactment of the Architectural Works Copyright Protection Act,
`Pub. L. No. 101-650, Sec. 701, 104 Stat. 5089, which only applies to architectural works that
`were created on or after December, 1, 1990, its date of enactment. See Chirco v. Hampton
`Ridge, L.L.C., No. 01-72015 (E.D. Mich Aug. 31, 2001) (Roberts, J.); 1 MELVILLE B. NIMMER
`AND DAVID NIMMER, NIMMER ON COPYRIGHT § 2.20 (2003) (footnotes omitted).
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`2
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`Registration No. VAu 356-235. (Id. Ex. A.) Plaintiffs allege that copyright law protects the
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`Aberdeen plans and buildings as derivatives of the copyrighted Knollwood plans.2 (Compl. at
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`¶ 18-19.)
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`According to the affidavit of Charles F. Merz (“Merz”), Plaintiffs’ expert, the Knollwood
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`plans and the derivative Aberdeen plans and buildings contain several components that, when
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`combined in the manner set forth in the plans and buildings, create an original arrangement of
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`space:
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`
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`8. The Aberdeen plans describe a unique twelve unit residential building.
`There are four units on the first floor as well as two rows of six single car
`garages on the first floor one at each end of the building. There are eight
`units on the second floor, of which 4 are over the garages. Each of the
`four second floor units which are constructed over a garage are placed on
`three garages, which allows the building to be built as four distinct
`quadrangles with fire rated walls separating each quadrangle. Pursuant to
`the unique plan, each of the twelve garages has direct access to its
`assigned residential unit without requiring the occupants to go outside or
`use a common hallway to access their units.
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`9. One of the unique aspects of the Aberdeen condominiums is the way that
`it can occupy a site. Because the garages are on the side of the building
`and because the garages of adjoining buildings face each other, the
`driveway orientation is quite compact, which allows the buildings to be
`spaced just sixty four feet from each other. This allows relatively high
`density of the units, and an efficiency of infrastructure design and
`implementation, thus allowing significant cost savings for this work.
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`10. Another unique aspect of the Aberdeen condominiums is their
`architectural features, including the way that both the front and back of the
`building are architecturally identical, allowing both to have an attractive
`visual appeal without the presence of garages or other elements typical of
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` 2Supplemental Registrations that were filed in October of 2001 to remedy technical defects in
`the initial registrations identified the Aberdeen copyrights as derivatives of the Knollwood plans.
`(Compl. Ex. A., U.S. Copyright Registrations No. VAu 535-027 and VAu 535-028); Chirco v.
`Hampton Ridge, L.L.C., No. 01-72015, at 15 (E.D. Mich. Sept. 24, 2002) (Order Adopting in
`Part and Denying in Part the Report and Recommendation of the Magistrate Judge).
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`the back side of multi-family buildings.
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`(Merz Aff. at ¶¶ 8-10.) Along with the Knollwood plans and the Aberdeen plans and buildings,
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`the Knollwood buildings also embody this arrangement of space, which is referred to as the
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`“Knollwood building design.” (Merz Dep. at 51, 72; Gateway Br. at 4.)
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`In July of 1997, Mayotte granted Plaintiffs an exclusive license for the “use” of the
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`Knollwood and Aberdeen plans. The license agreement stated, however, that “no revisions to
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`the . . . [p]lans or derivative works shall be made by any person other than Mayotte. If the . . .
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`[p]lans require any modifications from time to time, then upon request by [Plaintiffs], Mayotte
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`shall execute the modifications and shall be compensated on a time and materials basis at
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`Mayotte standard rates. . . .” (Moceri Aff. Ex. A.) In September of 2001, the parties to the
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`original license agreement entered into a confirmatory addendum. (Id. Ex. B; August 6, 2003
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`Prelim. Inj. Hearing Tr. at 12.) The agreement stated:
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`1. The exclusive rights granted to [Plaintiffs] include the exclusive right to
`reproduce the . . . [p]lans, to distribute copies of the . . . [p]lans, to make
`derivative works based on the . . . [p]lans, provided such derivative works
`are created as set forth in Paragraph 3 of the Agreement, and to use the . . .
`[p]lans as the basis for any building.
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`2.
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`[Plaintiffs] have the right to sue to enforce any of their exclusive rights
`under the Agreement.
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`(Id.)
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`Plaintiffs have developed numerous condominium projects based upon the Knollwood
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`and Aberdeen plans. These include, for example, Aberdeen Gardens in Sterling Heights,
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`Michigan; Glenmoor Village in Macomb Township, Michigan; Warwick Village in Macomb
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`Township, Michigan; Aberdeen Pines in Sterling Heights, Michigan; Stratford Village in
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`Sterling Heights, Michigan; and Oakmonte in Oakland Township, Michigan.
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`4
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`At issue in this case is a condominium project commonly known as Gateway Oaks that
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`Defendants developed. (Compl. at ¶ 22.) The Plaintiffs’ Aberdeen Pines condominium project
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`in Sterling Heights, Michigan,3 is adjacent to and surrounds Gateway Oaks. (Id.) Based upon
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`their review of the Gateway Oaks plans filed with the Sterling Heights Building Department,
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`Plaintiffs allege that the Gateway Oaks plans “are substantially similar to, and copy, the
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`Aberdeen [p]lans and . . . [w]orks.” (Id. at ¶¶ 24-25.) Plaintiffs, therefore, filed the instant
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`action against Defendants for infringement of Plaintiffs’ copyrighted Knollwood plans,
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`Aberdeen plans, and Aberdeen buildings (collectively “copyrighted materials”). (Id. at ¶¶ 20,
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`32-33, 36.)
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`Count I of Plaintiffs’ complaint sets forth a claim of copyright infringement against
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`Gateway, Arrow, Design, and N & D. Count II sets forth a claim of copyright infringement,
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`pursuant to principles of vicarious liability, against D’Angelo and Sarafano. Count III sets forth
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`a claim of copyright infringement, under principles of contributory liability, against MCS, Jones,
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`and Hall.
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`On August 27, 2002, Defendants Gateway, Arrow, N & D, D’Angelo, and Sarafano filed
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`a Counterclaim against Plaintiffs, seeking a declaratory judgment, pursuant to 28 U.S.C. § 2201,
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`et seq., declaring the parties’ respective rights under copyright law. On September 11, 2002,
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`Defendants M.C.S. and Jones filed a Counterclaim against Plaintiffs, also seeking a declaratory
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`judgment, under § 2201, declaring the parties’ respective rights under copyright law.
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` 3 Plaintiffs’ complaint does not allege infringement of this copyright; rather, the complaint
`only pleads infringement of the Knollwood plans, the Aberdeen plans, and the Aberdeen
`buildings. Moceri confirmed this during his deposition. (Def.’s Prelim. Inj. Resp. Br. Ex. 17,
`Moceri Dep. at 8, 107-08.)
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`On November 22, 2002, Plaintiff filed a motion for a preliminary injunction. On August
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`28, 2003, the Court issued an opinion and order denying Plaintiffs’ motion for a preliminary
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`injunction. The Court reasoned, in part, that a strong likelihood existed that either side could
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`prevail on the ultimate issue of copyright infringement. (August 28, 2003, Opinion at 34.)
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`On March 11, 2005, Plaintiffs filed a Re-Filed Motion for Summary Judgment
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`Dismissing Defendants’ Affirmative Defense that Construction of the Knollwood Building
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`Turned the Building Design Over to the Public Domain. On March 18, 2005, Defendants Design
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`and Hall each filed a motion for summary judgment on Plaintiffs’ claims against them. Also on
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`March 18, 2005, Defendant Gateway, on behalf of itself and Defendants D’Angelo, Sarafano,
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`Arrow, and N & D, filed a motion for summary judgment on Plaintiffs’ claims against them.
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`On April 29, 2005, the Court granted Plaintiffs’ re-filed motion as to all of the
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`Defendants except for Design.4 Applying the law-of-the-case doctrine, the Court rejected the
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`affirmative defense that the Knollwood building design, as embodied in the Knollwood plans, is
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`in the public domain.
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`Now before the Court are Defendants’ motions for summary judgment on Plaintiffs’
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` 4Although Plaintiffs’ renewed motion was directed at all of the Defendants, only Gateway
`filed a response. Design’s instant summary-judgment motion raises the same issue of whether
`the Knollwood building design is in the public domain because that design, as embodied in the
`Knollwood buildings, is not protected under the AWCPA. In its opinion granting Plaintiffs’
`renewed motion, the Court noted that it would afford Design an opportunity to address this issue
`in its instant motion. (April 29, 2005, Opinion at 14 n.7.)
`While Gateway’s instant summary-judgment motion again argues that the Knollwood
`building design is in the public domain because the AWCPA does not protect that design as
`embodied in the Knollwood buildings (Gateway Br. at iv, 4, 11-12; Reply at 2.), the Court’s
`April 29, 2005, opinion rejected that argument such that the Court will not revisit it here. The
`Court, likewise, will disregard any of Gateway’s arguments to the extent that they hinge upon
`that erroneous contention. (See Gateway Br. at ii, 14, 20; Johnson Report ¶ 90, Tab 25.)
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`claims.
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`II. ANALYSIS
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`Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
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`and admissions on file, together with affidavits, if any, show that there is no genuine issue of
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`material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
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`P. 56(c). A “material” fact is one “that might affect the outcome of the suit under the governing
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`law[.]” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A “genuine” issue exists “if the
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`evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The
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`Court must determine “whether the evidence presents a sufficient disagreement to require
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`submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
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`Id. at 251-52. In deciding a motion for summary judgment, the Court must draw all justifiable
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`inferences from the evidence in the non-moving party’s favor. Matsushita Elec. Indus. Co. v.
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`Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-moving party “must do more
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`than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586.
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`Under the law-of-the-case doctrine, a court generally may not revisit an issue that it
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`decided, whether expressly or by necessary implication from its disposition, at an earlier stage of
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`the proceedings; rather, once a court has decided an issue, the court should usually give effect to
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`that decision throughout that litigation. In re Kenneth Allen Knight Trust, 303 F.3d 671 (6th Cir.
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`2002). While the law-of-the-case doctrine is discretionary in that it does not limit the court’s
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`power to revisit a previously-decided issue, a court should exercise its power to reach a result
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`that is inconsistent with a prior decision that it reached in the same case only sparingly and under
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`extraordinary circumstances. Id. To do so, the court must find some cogent reason to show that
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`the prior ruling is no longer applicable, such as if the prior opinion was clearly erroneous or
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`would work a manifest injustice. Id. An intervening change in controlling law between the date
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`of the first ruling and the date that it is revisited would constitute such a cogent reason. See
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`Amen v. City of Dearborn, 718 F.2d 789 (6th Cir. 1983).
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`An architectural work is “the design of a building as embodied in any tangible medium of
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`expression, including a building, architectural plans, or drawings.” 17 U.S.C. § 101. Before the
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`enactment of the Architectural Works Copyright Protection Act, Pub. L. No. 101-650, Sec. 701,
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`104 Stat. 5089 (“the AWCPA”), which only applies to architectural works that were created on
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`or after December 1, 1990, its date of enactment, physical buildings that were constructed based
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`upon copyrighted architectural plans could not receive copyright protection. 1 MELVILLE B.
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`NIMMER AND DAVID NIMMER, NIMMER ON COPYRIGHT § 2.20 (2003) (footnotes omitted).
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`Copyright law, however, has long since afforded architectural plans, as distinct from buildings,
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`protection as “pictorial, graphic, and sculptural works.” 17 U.S.C. § 102(a)(5); see Robert R.
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`Jones, Assoc. v. Nino Homes, 858 F.2d 274, 278 (6th Cir. 1988).
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`The statutory copyright protection in architectural plans does not protect the building
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`depicted in those plans because the law before January 1, 1978, did not recognize such
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`protection. See 17 U.S.C. § 113(b); Robert R. Jones, Assoc., 858 F.2d at 278. As to the scope of
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`copyright protection in architectural plans, the Sixth Circuit Court of Appeals has held that,
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`although “one may construct a house which is identical to a house depicted in copyrighted
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`architectural plans, . . . one may not directly copy those plans and then use the infringing copy to
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`construct the house.” Robert R. Jones, Assoc., 858 F.2d at 280; see Imperial Homes Corp. v.
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`Lamont, 458 F.2d 895, 899 (5th Cir. 1972) (holding that infringement of a copyrighted
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`2:02-cv-73188-PDB Doc # 214 Filed 08/26/05 Pg 9 of 28 Pg ID 5367
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`architectural plan occurs upon the imitation or transcription of such plan “in whole or in part”).
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`Moreover, “where someone makes infringing copies of another’s copyrighted architectural
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`plans,” the copyright owner may recover damages that “include the losses suffered as a result of
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`the infringer’s subsequent use of the infringing copies”–e.g. the construction of a building based
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`upon those copies. Robert R. Jones, Assoc., 858 F.2d at 280.
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`In this case, the Knollwood buildings are a development of fifty separate buildings,
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`nineteen of which were constructed before December 1, 1990. (Resp. at 3. n.7; Moceri Dep. at
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`15.) Consequently, Plaintiffs neither dispute that the Knollwood buildings are not entitled to
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`copyright protection nor rely upon any such protection to support their claims.5 (Resp. to
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`Gateway at 5.) See Chirco v. Hampton Ridge, L.L.C., No. 01-72015 (E.D. Mich) (Aug. 31, 2001,
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`Stipulated Order) (J. Roberts) (conceding that the copyright registration for the Knollwood
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`buildings is invalid). Rather, the thrust of Plaintiffs’ claims is that Defendants, via the Gateway
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`Oaks plans, infringed the Knollwood building design, as embodied in the Knollwood plans and
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`their derivative works. (Compl. at ¶¶ 20, 24-25, 32-33, 36.)
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`A. Standing
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`As a threshold matter, Design maintains that Plaintiffs lack standing under 17 U.S.C. §
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` 5Although Gateway, in its summary-judgment motion, asks the Court to issue a formal order
`invalidating the copyright registration of the Knollwood buildings, Vau 356-237, so as to notify
`the Copyright Office of its cancellation (Gateway Br. at 4-5, 8-9.), the Court declines to issue
`such an order because Plaintiffs have stipulated to the invalidity of the Knollwood buildings’
`copyright registration and because other courts have already issued orders regarding that
`registration. (See Resp. to Gateway at 6.)
`To the extent that Gateway, once again, asserts that the invalidation of the Knollwood
`buildings’ copyright registration demonstrates that the Knollwood building design is in the
`public domain (Gateway Br. at 9, Reply at 2.), the Court’s April 29, 2005, opinion forecloses
`that assertion.
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`501(b) on the ground that they are neither the owners nor the exclusive licensees of the
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`copyrighted materials. (Mot. at 1.) 17 U.S.C. § 501(b) provides, in pertinent part:
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`The legal or beneficial owner of an exclusive right under a copyright is entitled,
`subject to the requirements of section 411, to institute an action for any
`infringement of that particular right committed while he or she is the owner of it.
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`Pursuant to the 1997 Agreement, Mayotte granted exclusive licenses in the copyrighted
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`materials to the following licensees: 1) Plaintiffs; 2) Knollwood Associates; 3) Aberdeen Village
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`LLC, and 4) Moceri Development Corporation. (Design Br. at 2; Ex. D.) In 2003, MB
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`Properties received a license in the copyrighted materials to develop Riverwalk, an Aberdeen-
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`style development, in exchange for a license fee.6 (Design Br. at 2; Moceri Dep. at 14-16, Ex. E).
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`Design asserts that § 501(b)’s bestowal of copyright standing upon a copyright owner’s
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`“exclusive licensee” is limited to only a single such licensee. (Design Br. at 5.) Put another
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`way, Design argues that a copyright owner’s grant of a license to more than one individual
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`destroys the exclusivity of any one license such that each licensee lacks copyright standing under
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`§ 501(b). (Design Reply at 1.) Conceding that the Copyright Act does not define the term
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`“exclusive,” Design maintains that, under the plain-meaning of that term, “exclusive” denotes
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`one or that which is not shared with another. (Design Br. at 5; Reply at 2.) Design underscores
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`that, here, the licensees of the copyrighted materials have equal rights to those licenses and, thus,
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`share the same bundle of rights with each other. (Design Br. at 5-6, Reply at 2; Moceri Dep. at
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`21-16; Chirco Dep. at 109-110, Ex. P.)
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` 6Design contends that this license is exclusive. (Br. at 2.) Plaintiffs underscore that the
`license to MP Properties is not exclusive because it is not in writing, as 17 U.S.C. § 204 requires
`for an exclusive license. (Id.) In any event, as Plaintiffs aptly note, the factual disputes
`surrounding the license to MP Properties is not material for purposes of resolving the standing
`issue.
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`Plaintiffs, in response, contend that Mayotte’s grant of an exclusive license in the
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`copyrighted materials to each Plaintiff, among others, constitutes the requisite exclusive license
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`for purposes of copyright standing under § 501(b). In support, Plaintiffs aptly note that the
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`Copyright Act recognizes joint and exclusive ownership of the same bundle of rights. (Resp. to
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`Design at 1, 6.) See 1 Nimmer On Copyright §§ 6.09, 6.10 (observing that federal copyright law
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`treats joint owners as “tenants-in-common,” with each owning an undivided interest in the whole
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`copyright and with each entitled to exercise all of the exclusive rights of a copyright owner that §
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`106 sets forth); Fantasy, Inc. v. Fogerty, 654 F. Supp. 1129, 1130 (N.D. Cal. 1987) (“As joint
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`owners of such exclusive rights as reproduction, preparation of derivative works, public
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`performance, and distribution and sale, each co-owner has ‘an independent right to use or license
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`the use of the copyright.’”) (citing Oddo v. Ries, 743 F.2d 630, 633 (9th Cir. 1984)); Bridgeport
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`Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830 (M.D. Tenn. 2002)(discussing the rights of
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`co-ownership of copyright). According to Plaintiffs, copyright law’s recognition of joint
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`ownership of exclusive rights demonstrates that § 501(b) does not withhold copyright standing
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`when there is more than one licensee of an exclusive license. (Resp. to Design at 9.)
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`To find that a licensee of an exclusive license lacks copyright standing because the
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`copyright owner also granted the exclusive license to one or more other licensees would, indeed,
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`fly in the face of case law affirming the Copyright Act’s recognition of joint ownership of
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`exclusive rights. Moreover, it would be tantamount to holding that copyright law gives such
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`licensees rights without the necessary remedy for a violation of those rights. Therefore, the
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`Court finds that Plaintiffs have standing to assert their claims.
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`B. Copyright Infringement
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`A copyright owner has the exclusive right to reproduce the copyrighted work, to prepare
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`derivative works based upon the copyrighted work, and to distribute copies of the work. See 17
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`U.S.C. §§ 106(1), (3). “Anyone who violates any of the exclusive rights of the copyright owner .
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`. . is an infringer of the copyright.” 17 U.S.C. § 501(a); see Sony Corp. v. Universal City
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`Studios, Inc., 464 U.S. 417, 423-433 (1984). To establish a claim of copyright infringement, a
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`plaintiff must show: 1) that he owns a valid copyrighted work; and 2) that the defendant copied
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`protected elements of that work. Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d
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`522, 534 (6th Cir. 2004). “If no direct evidence of copying is available, a claimant may establish
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`th[e] [second] element by showing that the defendant had access to the copyrighted work and
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`that the copyrighted work and the allegedly copied work are substantially similar.” Id.
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`Gateway and Design argue that Plaintiffs, as a matter of law, have failed to demonstrate
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`that Defendants, via the Gateway Oaks plans, infringed the Knollwood building design, as
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`embodied in the Knollwood plans and their derivative works. (Design Mot. at 2, Br. at 11;
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`Gateway Br. at 15.) According to Design, Brian Gill (“Gill”) of Design designed Gateway Oaks,
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`and he did so independently and without any access to the Knollwood plans or their derivative
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`works. (Design Br. at 3; Gill Dep. at 41-42, 79, Ex. K) Here, Plaintiffs rely upon circumstantial
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`evidence to demonstrate Defendants’ alleged copyright infringement.7
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`1. Access
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` 7Defendants underscore that Plaintiffs lack any direct evidence of copyright infringement.
`Specifically, Design and Gateway contend that none of the witnesses had personal knowledge
`that any of the Defendants copied the Knollwood or Aberdeen plans. (Design Br. at 12; Gill
`Dep. at 83, Ex. K; Moceri Dep. at 28, 33; Chirco Dep. at 63-64; Ex. U.)(Gateway Br. at 16, 18;
`Moceri 3/27/03 Dep. at 21-22, Ex. 9; Chirco 4/3/03 Dep. at 9, 11, Ex 11; J. Moceri 3/36/03 Dep.
`at 73; D’Angelo 8/6/03 Prelim. Inj. Tr. at 75.)
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`Gateway and Design contend that Plaintiffs, as a matter of law, have failed to show that
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`Defendants had access to the Knollwood building design, as embodied in the Knollwood plans
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`and their derivative works. Plaintiffs, in turn, argue that they have presented sufficient evidence
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`to raise a genuine issue of material fact that Defendants had such access. (Resp. to Design at 2-
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`4.)
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`An opportunity to view the protected material constitutes the requisite access. Robert R.
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`Jones Assoc., 858 F.2d at 277; 4 Nimmer on Copyright § 13.02[A]. A party may establish access
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`by demonstrating that: 1) the copyrighted work had been widely disseminated; or 2) a particular
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`chain of events occurred by which the alleged infringer might have gained access to the
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`copyrighted work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000).
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`Design and Gateway contend that none of the witnesses had personal knowledge that
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`Design, via Gill, or Gateway had access to the Knollwood or Aberdeen plans before the Gateway
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`Oaks plans were created on November 9, 2000. (Design Br. at 3, 12; Moceri Dep. at 33-35;
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`Chirco Dep. at 63-64, 70-71, Exs. L & Test.)(Gateway Br. at 15-16; Moceri 3/27/03 Dep. at 64-
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`65, Ex. 9.) As Gateway notes, D’Angelo testified that he had never seen or inspected the
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`Knollwood plans until after the commencement of this suit. (Gateway Br. at 16; 8/6/03 Prelim.
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`Inj. Tr. at 75, 84-85, Tab 17.)
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`As Plaintiffs note, however, Moceri averred that the Aberdeen plans were on file with the
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`Shelby Township Building Department and, as such, were publicly available. (Moceri Aff. at ¶
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`47; Resp. to Design at 4.) Moceri further averred that Plaintiffs advertised their condominiums
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`in a variety of sources, including the Sunday newspapers and the Internet, and that those sources,
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`especially the Internet, contained detailed drawings of the Knollwood building design. (Resp. to
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`Design/Gateway at 4; Moceri Aff. at ¶¶ 20-21, 45.)
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`In any event, Plaintiffs principally contend that Defendants copied the Knollwood
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`building design from the Aberdeen Pines and Gardens plans or buildings, which embody that
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`design, rather than from the Knollwood plans or the Aberdeen (Village) plans or buildings, the
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`copyrights allegedly infringed. (See Merz Dep. at 57-58, Design Ex. J.) (testifying that all of the
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`Aberdeen projects embody the Knollwood building design). Gateway challenges, without
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`elaboration, Plaintiffs’ reliance upon the other Aberdeen projects to show Defendants’ access to
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`the Knollwood building design. (Reply at 4.) However, the Court, in its August 28, 2003,
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`opinion found it proper to consider evidence of Defendants’ access to the Knollwood building
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`design via Aberdeen Pines and Gardens. (Opinion at 28 n.15.) Indeed, “[o]ne who views a
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`performance of a copyrighted work and copies expressions contained in that work may be found
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`to have infringed” the underlying work. Twin Peaks Prods., Inc. v. Publications Int’l, LTD., 996
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`F.2d 1366 (2d Cir. 1993)(holding that the defendant’s access to broadcast programs that
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`“contained virtually all of the protected expression in the [allegedly-infringed] teleplays” serves
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`“as the functional equivalent of access to the protectable content of the teleplays”).
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`As to Defendants’ alleged access to Aberdeen Pines, Plaintiffs point to the Declaration of
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`Tom Wujczyk (“Wujczyk”), which demonstrates the following: 1) brochures for Aberdeen
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`Pines, which included its building design, were distributed beginning in July of 2000; 2) the first
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`visitors to Aberdeen Pines arrived in July of 2000; 3) five units of Aberdeen Pines were sold by
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`July 16, 2000; 4) the Master Deed for Aberdeen Pines, which includes floor plans that MCS
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`prepared, was recorded on August 23, 2000; 5) the first building permit and Certificate of
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`Occupancy for Aberdeen Pines were issued on November 15, 2000, and May 14, 2001,
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`respectively; 6) the Gateway Oaks plans were not created until long after Aberdeen Pines was
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`constructed; and 7) by the time that Gateway Oaks received its first building permit on May 13,
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`2002, all 168 units of Aberdeen Pines were fully constructed and occupied. (Exs. A & B, Resp.
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`to Design; Wujczyk Aff. at ¶¶ 7-8)(Resp. to Gateway at 2-4.) As Plaintiffs further underscore,
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`Jack Nelson, D’Angelo’s partner in Gateway Oaks, was the title agent for Aberdeen Pines and,
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`as such, had direct access to its master deeds and other documents showing the Knollwood
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`building design. (Resp. to Gateway at 2, 12; Deeds, Ex. B.) Concerning Aberdeen Gardens, in
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`particular, Wujczk averred that construction on Aberdeen Gardens began in November of 1998,
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`and that all 360 units of Aberdeen Gardens were fully constructed and occupied by May 13,
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`2002. (Wujczk Aff. at ¶¶ 5, 8.)
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`According to Plaintiffs, the master deeds for Aberdeen Pines and Gardens, both of which
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`embody the Knollwood building design, were filed with the Macomb County Register of Deeds
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`and, thus, were a matter of public record. (Resp. to Gateway at 2-3, 12.) Wujczk averred that
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`MCS prepared the master deeds for Aberdeen Pines, Aberdeen Gardens, and Gateway Oaks, and
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`that he provided MCS with construction drawings of Aberdeen Pines and Gardens so that MCS
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`could prepare those deeds. (Id. at 12; Wujczk Aff. at ¶¶ 2-4.) Additionally, Plaintiffs argue that
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`the Gateway Defendants’ hiring of MCS and Hall, both of which had worked on Aberdeen Pines
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`and Gardens, shows Defendants’ intention to copy the Knollwood building design and “to
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`achieve the economic advantage of using subcontractors who had already created and
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`constructed the virtually identical Aberdeen projects.” (Resp. to Design at 3; Resp. to Gateway
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`at 4.)
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`Design and Gateway assert that there is insufficient evidence, as a matter of law, that
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`they had access to the Knollwood building design, as embodied in the Knollwood plans and their
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`derivative works. (Design Reply at 5; Gateway Br. at 15.) Specifically, Design and Gateway
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`contend that there is nothing but speculation to show that they possessed or viewed any plans
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`embodying the Knollwood building design, and that such speculation is insufficient to rebut
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`Gill’s testimony that he independently created the Gateway Oaks plans. (Design Br. at 12;
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`Reply at 5; Gill Dep. at 79, Ex. K; Gateway Br. at 15.) However, as recited above, Plaintiffs
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`have presented much more evidence of access–i.e. a mere opportunity to view–than bare
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`speculation.
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`Plaintiffs have created an issue of fact as to whether Defendants had access to the
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`Knollwood building design, as embodied in the Knollwood plans and their derivative works. Of
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`special note, in Ronald Mayotte & Assoc. v. MGC Bldg. Co., 885 F. Supp. 148, 152 (E.D. Mich.
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