United States District Court, D. Arizona
ORDER
Honorable Eileen S. Willett United States Magistrate Judge
The
Court has reviewed the parties' briefing concerning (i)
the Motion for Partial Summary Judgment (Doc. 87) filed by
Plaintiff John Anthony Drafting & Design LLC and (ii) the
Motion for Summary Judgment (Doc. 89) filed by Defendants
Sabin Lee Burrell, Kayla Jantz, 5650 Wilkinson, LLC, and
Black Dog Management, L.P.[1] For the reasons set forth herein, the
Motions (Docs. 87, 89) will be denied.[2]
I.
LEGAL STANDARDS
Summary
judgment is appropriate if the evidence, when reviewed in a
light most favorable to the non-moving party, demonstrates
“that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). Substantive law determines
which facts are material in a case and “only disputes
over facts that might affect the outcome of the suit under
governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “A fact issue is genuine
‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.'”
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at
248). Thus, the nonmoving party must show that the genuine
factual issues “can be resolved only by a finder of
fact because they may reasonably be resolved in favor of
either party.” Cal. Architectural Bldg. Prods.,
Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (quoting Anderson, 477 U.S. at 250).
Because
“[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge . . . [t]he
evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor” at
the summary judgment stage. Anderson, 477 U.S. at
255 (citing Adickes v. S.H. Kress & Co., 398
U.S. 144, 158-59 (1970)); Harris v. Itzhaki, 183
F.3d 1043, 1051 (9th Cir. 1999) (“Issues of
credibility, including questions of intent, should be left to
the jury.”) (citations omitted).
When
moving for summary judgment, the burden of proof initially
rests with the moving party to present the basis for his
motion and to identify those portions of the record and
affidavits that he believes demonstrate the absence of a
genuine issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant fails
to carry his initial burden of production, the non-movant
need not produce anything further. The motion for summary
judgment would then fail. However, if the movant meets his
initial burden of production, then the burden shifts to the
non-moving party to show that a genuine issue of material
fact exists and that the movant is not entitled to judgment
as a matter of law. Anderson, 477 U.S. at 248, 250;
Triton Energy Corp. v. Square D. Co., 68 F.3d 1216,
1221 (9th Cir. 1995). The nonmovant need not establish a
material issue of fact conclusively in his favor. First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 288-89 (1968). However, he must “come forward with
specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co., Ltd. v.Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal citation
and emphasis omitted); see Fed. R. Civ. P. 56(c)(1).
Conclusory
allegations unsupported by factual material are insufficient
to defeat a motion for summary judgment. Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also
Soremekun v. Thrifty Payless, Inc., 502 F.3d 978, 984
(9th Cir. 2007) (“[c]onclusory, speculative testimony
in affidavits and moving papers is insufficient to raise
genuine issues of fact and defeat summary judgment”).
Nor can such allegations be the basis for a motion for
summary judgment.
II.
BACKGROUND
This is
a copyright infringement action. Plaintiff John Anthony
Macewicz (“Macewicz”) owns an architectural
design firm named John Anthony Drafing & Design, LLC
(“JADD”). (Doc. 93 at 5, ¶ 10). Defendants
Sabin Lee Burrell (“Burrell”) and Kayla Jantz
(“Jantz”) are husband and wife. In March 2015,
Defendant Burrell entered into a written agreement with JADD
for the design of a residential home. (Id. at 6,
¶¶ 13-15). The structure at issue is located at
5650 North Wilkinson Road in Paradise Valley, Arizona and is
referred to herein as the “Burrell Residence.”
(Doc. 90 at 2, ¶ 3). Defendant Burrell is the sole
manager and member of Defendant 5650 Wilkinson, LLC, which is
the record owner of the Burrell Residence. (Id. at
9-10, ¶¶ 50-52). Defendant Burrell also is the
manager of Panzer Investments, LLC, which is Defendant Black
Dog Management, L.P.'s general partner. (Doc. 98 at 10,
¶ 112). Defendant Black Dog Management, L.P. provided
financing for the construction of the Burrell Residence.
(Id., ¶¶ 113-15). Burrell, Jantz, 5650
Wilkinson, LLC, and Black Dog Management, L.P. are
collectively referred herein as the “Burrell
Defendants.” The remaining four Defendants are (i)
Craig Banner (“Banner”); (ii) American Tradition
Builders, Inc. (“ATB”); (iii) Tom Spencer
(“Spencer”); and (iv) CBAN, LLC.[3] On April 11,
2016, Defendants Burrell, ATB, and CBAN, LLC entered into a
contract for the construction of a residence (the
“Building Contract”). (Doc. 90 at 9, ¶ 43).
Plaintiff
Macewicz states that in May 2016, he applied to register the
copyright for the Burrell Residence's design. (Doc. 88-2
at 4, ¶ 14). The Certificate of Registration issued by
the Copyright Office reflects that the title of the protected
work is “Burrell Residence.” (Doc. 88-3 at 4).
The Certificate of Registration lists an effective date of
May 3, 2016, with June 9, 2015 as the date of first
publication. (Id.). In January 2018, Plaintiff
Macewicz assigned all copyrights in the Burrell Residence to
Plaintiff JADD. (Doc. 88-5 at 3). Plaintiffs contend that the
home constructed pursuant to the Building Contract infringes
on the copyrights in the Burrell Residence's design. In
its Amended Complaint, Plaintiffs assert that the Burrell
Defendants are liable for vicarious and contributory
copyright infringement. (Doc. 54 at 10, ¶¶ 38-39).
One of the Burrell Defendants' contentions is that
Plaintiff JADD's copyright is not valid because the
Burrell Residence does not constitute an original
architectural work.
III.
DISCUSSION
A.
Plaintiff JADD's Motion for Partial Summary Judgment
(Doc. 87)
Architectural
plans and drawings are entitled to copyright protection under
the Federal Copyright Act. 17 U.S.C. § 101 et seq.
“Architectural work” is defined as “the
design of a building as embodied in any tangible medium of
expression, including a building, architectural plans, or
drawings.” 17 U.SC. § 101. Plaintiff JADD moves
for summary judgment that it owns a valid copyright in the
Burrell Residence's design. (Doc. 87).
To
establish copyright infringement, a party must show (i)
ownership of a valid copyright and (ii) unauthorized copying
by another party of the constituent original elements of the
work. Feist Publ'ns, Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340, 361 (1991). A certificate of
registration made within five years of the first publication
of the work “constitutes prima facie evidence
of copyrightability and shifts the burden to the defendant to
demonstrate why the copyright is not valid.”
Bibbero Sys., Inc. v. Colwell Sys., Inc., 893 F.2d
1104, 1106 (9th Cir. 1990) (citing 17 U.S.C. § 410(c)).
In order to rebut the presumption of validity, an alleged
infringer must offer “some evidence or proof to dispute
or deny the [copyright holder's] prima facie case of
infringement.” United Fabrics Int'l, Inc. v.
C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011)
(internal quotation marks and citation omitted). Because
“originality is the indispensable prerequisite for
copyrightability, ” the alleged infringer may rebut the
presumption of validity by showing that “the [copyright
holder's] work is not original.” N. Coast
Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th
Cir. 1992). Where the accused infringer offers evidence that
the plaintiff's product was copied from another work or
other probative evidence as to originality, the burden of
proving validity shifts back to the plaintiff. Entm't
Research Grp. v. Genesis Creative Grp., Inc., 122 F.3d
1211, 1217-18 (9th Cir. 1997) (citing North Coast
Indus., 972 F.2d at 1033).
Although
originality is the prerequisite for copyrightability, the
“originality requirement does not mean that for valid
copyright protection, the copyright must represent something
entirely new under the sun.” North Coast, 972
F.2d at 1033. Originality requires that a work “owes
its origin” to the “author, ” whose
contribution is “more than a trivial variation,
something recognizably his own.” Id. (quoting
Sid & Marty Krofft Television v. McDonald's
Corp., 562 F.2d 1157, 1163 n.5 (9th Cir. 1977)). The
Supreme Court has held that “the requisite level of
creativity is extremely low; even a slight amount will
suffice. The vast majority of works make the grade quite
easily, as they possess some creative spark, no matter how
crude, humble or obvious it might be.” Feist,
499 U.S. at 345 (internal quotation marks and citation
omitted); see also Gaste v. Kaiserman, 863 F.2d
1061, 1066 (2d Cir. 1988) (“[T]he originality
requirement for obtaining a copyright is an extremely low
threshold, unlike the novelty requirement for securing a
patent. ...