UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

R.S. SCOTT ASSOCIATES, INC., 

 Plaintiff, Case No. 14-cv-13338 

v Honorable Thomas L. Ludington 

TIMM CONSTRUCTION COMPANY, LLC, and 

REX D. REITTENBACH, 

 Defendants. 

__________________________________________/ 

ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT AND 

CANCELLING HEARING 

 On August 27, 2014, Plaintiff R.S. Scott Associates, an architectural and engineering 

firm, filed suit against Defendants Timm Construction and architect Rex Reittenbach alleging 

copyright infringement and breach of contract.1 R.S. Scott contends that Defendants infringed 

on its copyrighted architectural plans when they facilitated the expansion of St. Paul Lutheran 

Church in 2012. 

 On April 7, 2015, Defendants filed a motion for partial summary judgment, contending 

that R.S. Scott was barred as a matter of law from recovering statutory damages and attorney 

fees because any infringement occurred before the copyright was registered. As explained 

below, the motion will be denied because there are outstanding issues of fact and unaddressed 

issues of law as to whether the infringement (if any) commenced before the copyright was 

registered. 

I.

 R.S. Scott is an architectural and engineering firm located in Michigan. In June 2009, 

R.S. Scott submitted a bid packet for the construction of a new sanctuary for St. Paul Lutheran 

Church (“the Church”) in Hubbard Lake, Michigan. As part of its bid packet, R.S. Scott 

 

1

 The Court has previously dismissed a claim for unjust enrichment. ECF No. 16 
- 2 - 

prepared technical drawings and an architectural rendering of the proposed sanctuary. The 

Church paid $58,061.00 for the plans submitted. 

 The Church also solicited bids from construction companies, and Defendant Timm 

Construction, LLC, submitted the lowest bid. Unfortunately for the Church, even Timm 

Construction’s low bid exceeded the budgeting constraints. Therefore, the Church put its 

expansion plans on hold for two years while it continued to raise funds for construction. 

 About two years later, on July 27, 2011, the Church contacted Timm Construction and 

expressed renewed interest in building the sanctuary. At a meeting between their 

representatives, the Church asked Timm Construction to find ways to lower the building costs 

based on R.S. Scott’s 2009 architectural plans. Over the next 2-3 months, Timm Construction 

created and presented plans (“the Fall 2011 plans”) that would lower the costs of constructing the 

sanctuary. 

 R.S. Scott apparently did not approve of the design modifications. Its architect, Ms. 

Susan Edwards, allegedly told Timm Construction that “You took a good design and made it 

cheaper, didn’t you?” Def.’s Mot. Summ. J. 3. Its president, Mark Straley, allegedly stated that 

the Fall 2011 plans were “not going to fly.” Id. Ex. H. When R. S. Scott refused to participate in 

the construction of the sanctuary using the Fall 2011 Plans, the Church terminated its contract 

with R.S. Scott on March 8, 2012. 

 Six days later, on March 14, 2012, R. S. Scott registered its claim of copyright to the 

2009 architectural drawings prepared by Ms. Edwards. Defs.’ Mot. Summ. J. Ex. J. 

 Desiring to complete the construction of a sanctuary for the Church, Timm Construction 

hired Rex D. Reittenbach to prepare new architectural plans. Using Defendant Reittenbach’s 

plans, Timm Construction completed construction of the sanctuary in 2012 (“the April 2012 

plans”). 
- 3 - 

 On August 27, 2014, R. S. Scott filed suit against Timm Construction and Reittenbach, 

alleging that both the Fall 2011 plans (prepared by Timm Construction) and the April 2012 plans 

(prepared by Reittenbach for Timm Construction) infringed on its copyrighted 2009 plans. 

II. 

A motion for summary judgment should be granted if the “movant shows 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). The moving party has the initial burden of identifying where to look 

in the record for evidence “which it believes demonstrate the absence of a genuine issue of 

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the 

opposing party who must set out specific facts showing “a genuine issue for trial.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). The Court must view the 

evidence and draw all reasonable inferences in favor of the non-movant and determine “whether 

the evidence presents a sufficient disagreement to require submission to a jury or whether it is so 

one-sided that one party must prevail as a matter of law.” Id. at 251-52. 

III. 

 Defendants request summary judgment on R.S. Scott’s claims for statutory damages and 

attorney fees, claiming that they cannot be recovered pursuant to 17 U.S.C. § 412(2). That 

statute provides, in relevant part, that there will be no award for statutory damages or attorney’s 

fees if, “any infringement of copyright commenced after first publication of the work and before 

the effective date of the registrations, unless such registration is made within three months after 

the first publication of the work.” 17 U.S.C. § 412(2). This section “is designed to ensure that 

an infringer of an unpublished work will be subject to the punitive effects of §§ 504(c) and 505 

only if the infringer had constructive notice that the work was protected by a valid copyright.” 

Jones, 149 F.3d at 505. Thus, a copyright holder cannot recover statutory damages or attorney 

fees if the “infringement ‘commenced’ before the copyright was registered.” Id. 
- 4 - 

 Defendants contend that the infringement—if any—began in fall 2011 when Timm 

Construction created plans that modified R.S. Scott’s original plans. And, Defendants continue, 

because any infringement began in fall 2011, Reittenbach’s April 2012 plans are merely a 

continuation of the original infringement. Thus, Defendants contend that R.S. Scott cannot 

recover statutory damages and attorney’s fees because the infringement began before R.S. Scott 

registered its copyright in March 2012. 

 R.S. Scott acknowledges that Timm Construction’s Fall 2011 plans were created before 

the copyright was registered in March 2012, but contends that Reittenbach separately and 

independently infringed its copyrighted plans. R. S. Scott further contends that, although it 

would be barred from recovering statutory damages and attorney fees on the Fall 2011 plans, it 

could nevertheless recover those damages and fees for Reittenbach’s April 2012 plans. 

 The issue, then, is whether Reittenbach’s April 2012 plans were a continuation of the 

alleged infringement or the beginning of new infringement. In general, “infringement 

‘commences’ for the purposes of § 412 when the first act in a series of acts constituting 

continuing infringement occurs.” Johnson v. Jones, 149 F.3d 494, 506 (6th Cir. 1998). More 

specifically, the Sixth Circuit instructs that, in the context of architectural plans, infringement 

commences on “the making of infringing plans.” Robert R. Jones Assoc., Inc. v. Nino Homes, 

858 F.2d 274, 281 (6th Cir. 1988). In other words, “the infringing act [is] the making of 

infringing plans, and the construction of the houses according to those infringing copies merely 

muliplie[s] the damages attributable to the infringing act.” Id. 

 For example, in Johnson, an infringer traced architectural plans prepared by another and 

passed those off as his own before the owner registered the copyright. 149 F.3d at 499. After 

the copyright was registered, the same infringer continued to pass the plans off as his own, id. at 

506, and the copyright owner alleged that each act should be viewed as an independent act of 

infringement, thereby entitling to him to statutory damages and attorney fees. The Sixth Circuit 
- 5 - 

disagreed, however, explaining the infringer’s later drawings2

 were a continuation of the original 

infringement, which occurred prior to the copyright registration. Id. at 505. 

 Likewise, in Robert R. Jones Associates, the infringer copied architectural plans and 

constructed two houses based on those plans before the owner registered the copyright. 858 F.2d 

at 281. After the registration, the infringer continued to erect five more houses based on the 

copyrighted plans. The copyright owner contended that each separate house constituted an act 

of infringement, and therefore he should be entitled to damages and fees associated with the 

houses build after the registration of the copyright. The Sixth Circuit concluded that the 

infringement commenced with the copying of the architectural plans, and therefore the copyright 

owner could not recover statutory damages and attorney fees. Id. 

 As explained above, Defendants created two sets of architectural plans: (1) the fall 2011 

plans created by Timm Construction, which modified Plaintiff’s 2009 plans in order to reduce 

the cost of construction; and (2) the April 2012 plans created by Reittenbach that were eventually 

used to construct the sanctuary. Defendants contend that any infringement began in fall 2011, 

when Timm Construction modified the plans originally created by R.S. Scott, and therefore the 

alleged infringement occurred before the copyright registration.3

 Moreover, Defendants 

continue, Reittenbach’s April 2012 plans are part of Timm Construction’s alleged infringement 

in fall 2011, and should be viewed as a continuation of the fall 2011 infringement. 

 Defendants’ argument is premised on the assumption that the two alleged acts of 

infringement—the fall 2011 plans and the April 2012 plans—are part of the same act of 

infringement, and therefore the April 2012 plans are merely a continuation of the “original” fall 

 

2

 It is unclear from the opinion exactly what the infringing acts were. The opinion simply refers to “the December 

22 drawings of the South Addition to the Jones House” as another infringing act, without explaining the context or 

details of the infringing act. Johnson, 149 F.3d at 505. 3

 Defendants do not concede that the fall 2011 plans infringe on R.S. Scott’s copyright. From the parties’ papers, it 

appears that Defendant Timm Construction’s defense, at least in part, may have been that it had a license to modify 

R.S. Scott’s architectural plans in fall 2012. It is unclear how availing this argument would be given that, although 

R.S. Scott attached the contract between it and the Church that presumably outlines the permissible uses of R.S. 

Scott’s architectural plans, the key page has been removed. See Resp. Ex. 1 (page 11 missing), ECF No. 30. 
- 6 - 

2011 infringement. But Defendants do not offer any support for this assumption. They do not 

cite any case law, nor do they present any evidence that would address whether Reittenbach 

relied on, looked at, was familiar with, or otherwise consulted the fall 2011 plans in preparing 

the April 2012.4

 Therefore, the Court cannot determine whether Reittenbach’s April 2012 plans 

were created independently, and the Court is not permitted to assume that the April 2012 plans 

were a continuation of copyright infringement, rather than an independent act. 

 Indeed, this case appears—at least at this time—to be distinguishable from Johnson and 

Robert Jones, both of which addressed continuing infringement. In each of those cases, the 

infringer copied plans and created one set of infringing plans, which the infringer repeatedly 

used. In contrast, here there were two sets of plans, each created by a different defendant—the 

Fall 2011 Plans created by Timm Construction and the April 2012 Plans created by Reittenbach. 

 Defendants sidestep this issue by highlighting the fact that in a response to 

interrogatories, “R.S. Scott consistently asserts that both the Timm Construction drawings and 

the Reittenbach drawings share the same (alleged) protectable features of R. S. Scott’s 

copyrighted work.” Reply 4. And because the two sets of plans have the same features as the 

copyrighted work, Defendants continue, the only possible situation is that Timm Construction 

was the original infringer in 2011, and Reittenbach then used those infringing plans to prepare 

his April 2012 plans. 

 But this bare assertion—that both Timm Construction’s Fall 2011 Plans and 

Reittenbach’s 2012 Plans have the same features as the copyrighted work—is insufficient to 

grant summary judgment. Defendants assume that Reittenbach copied off Timm Construction’s 

allegedly infringing 2011 plans. It is equally plausible that Reittenbach independently infringed 

the copyrighted plans, and that the reason that both Timm Construction’s 2011 plans and 

Reittenbach’s plans have the “same (alleged) protectable features of R.S. Scott’s copyrighted 

 

4

 Indeed, neither party proffers much supporting evidence or any depositions. Instead, the parties rely solely on 

written discovery and some documents. 
- 7 - 

work” is that both Defendants developed the infringing plans by observing and copying the R. S. 

Scott’s copyrighted work. For example, the facts of the case may reveal that Reittenbach 

infringed R.S. Scott’s 2009 plans, but did so without relying on the Timm Construction’s 2011 

plans. This could result in a situation where Timm Construction did not infringe the copyright in 

fall 2011, but Reittenbach did in April 2012. 

To be clear, summary judgment is inappropriate at this time given the lack of evidence 

and lack of briefing of substantive case law presented to the Court. Defendants request that the 

Court assume that any infringement occurred in the following manner: 

R.S. Scott’s 2009 Plans  Timm Construction’s 2011 plans  Reittenbach’s 2012 plans 

That is, that Timm Construction created plans that infringed on R. S. Scott’s copyright, and that 

Reittenbach relied only on Timm Construction’s infringing plans in creating the 2012 plans. In 

this scenario, the “continuing infringement” principle could be applicable. 

But that is not the only scenario that may apply here. Instead of a linear chain of 

infringement, it is possible that both of the allegedly infringing works relied on R.S. Scott’s 

plans: 

R. S. Scott’s 2009 Plans 

Timm Construction’s 2011 Plans Reittenbach’s 2012 Plans 

In this equally plausible situation, both of the allegedly infringing plans relied on the copyrighted 

plans, rather than each other. Indeed, in their motion, Defendants explain that Reittenbach was 

hired “to start over and prepare new and affordable plans for the Church.” Defs.’ Mot. Summ. J. 

3 (italics original, underlining added). And Defendants have not presented any caselaw holding 

that the independent creation of two allegedly infringing plans by two separate defendants can 
- 8 - 

qualify as continuing infringement.5

 Therefore, Defendants have not carried their burden on 

summary judgment, and their motion will be denied. 

IV.

Accordingly, it is ORDERED that Defendants’ Motion for Partial Summary 

Judgment (ECF No. 26) is DENIED. 

It is further ORDERED that the motion hearing set for June 17, 2015 is CANCELLED. 

s/Thomas L. Ludington

THOMAS L. LUDINGTON 

United States District Judge 

Dated: May 20, 2015 

5

 Whether Reittenbach was an employee or an independent contractor may have bearing on this issue. However, 

neither party addresses his categorization and its effect, if any, on the issue. 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on May 20, 2015. 

s/Karri Sandusky 

Karri Sandusky, Acting Case Manager