UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL A. CHIRCO and DOMINIC

MOCERI,

Plaintiffs,

v.

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.

___________________________________ /

Case Number: 02-CV-73188

JUDGE PAUL D. BORMAN

UNITED STATES DISTRICT COURT 

OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY

JUDGMENT ON PLAINTIFFS’ CLAIMS

Now before the Court are Defendants’ motions for summary judgment on Plaintiffs’

claims. The Court heard oral argument on July 6, 2005. Having considered the entire record,

and for the reasons that follow, the Court GRANTS the instant motions.

I. FACTS

On August 2, 2002, Michael A. Chirco and Dominic Moceri (collectively “Plaintiffs”)

filed the instant action against Gateway Oaks, L.L.C. (“Gateway”), Arrow Building Co., Inc.

(“Arrow”), The Design Group, L.L.C. (“Design”), N & D Developers, L.L.C. (“N & D”), Joseph

D’Angelo (“D’Angelo”), Salvatore Sarafano (“Sarafano”), M.C.S. Associates, Inc. (“M.C.S.”),

Jim Jones (“Jones”), and Calvin Hall individually and d/b/a Calvin Hall and Associates (“Hall”)

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 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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(collectively “Defendants”), alleging copyright infringement pursuant to 17 U.S.C. § 101 et seq. 

Plaintiffs are in the business of developing, leasing and selling real estate, including

condominiums, apartments and single family homes, in the Detroit metropolitan area,

specifically in Oakland and Macomb County. (Compl. at ¶ 15-16.) 

Plaintiffs have previously worked with a third party architect, Ronald E. Mayotte &

Associates (“Mayotte”), to create technical architectural plans, and Plaintiffs have constructed

apartments/condominiums in accordance with these plans. (Id. at ¶ 17-18.) Specifically,

Mayotte and Plaintiffs originally collaborated to create architectural plans for an apartment

complex commonly known as the Manors at Knollwood (“Knollwood”) in Macomb County,

Michigan. (Id. at ¶ 19.) In 1997, Mayotte obtained copyright registrations for both the

Knollwood architectural plans (“Knollwood plans”), U.S. Copyright Registration No. VAu 356-

238, and the Knollwood architectural buildings (“Knollwood buildings”), U.S. Copyright

Registration No. VAu 356-237).1

 (Id. Ex. A.) 

Plaintiffs and Mayotte subsequently collaborated to develop architectural plans for a

condominium project that is commonly known as Aberdeen Village (“Aberdeen”), located in

Sterling Heights, Michigan. (Id. at ¶ 16, 18.) Mayotte obtained copyright registrations for both

the Aberdeen architectural plans (“Aberdeen plans”), U.S. Copyright Registration No. VAu 356-

236, and the Aberdeen architectural buildings (“Aberdeen buildings”), U.S. Copyright

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Supplemental 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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Registration No. VAu 356-235. (Id. Ex. A.) Plaintiffs allege that copyright law protects the

Aberdeen plans and buildings as derivatives of the copyrighted Knollwood plans.2

 (Compl. at

¶ 18-19.) 

According to the affidavit of Charles F. Merz (“Merz”), Plaintiffs’ expert, the Knollwood

plans and the derivative Aberdeen plans and buildings contain several components that, when

combined in the manner set forth in the plans and buildings, create an original arrangement of

space: 

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.

 

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.

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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the back side of multi-family buildings. 

(Merz Aff. at ¶¶ 8-10.) Along with the Knollwood plans and the Aberdeen plans and buildings,

the Knollwood buildings also embody this arrangement of space, which is referred to as the

“Knollwood building design.” (Merz Dep. at 51, 72; Gateway Br. at 4.) 

In July of 1997, Mayotte granted Plaintiffs an exclusive license for the “use” of the

Knollwood and Aberdeen plans. The license agreement stated, however, that “no revisions to

the . . . [p]lans or derivative works shall be made by any person other than Mayotte. If the . . .

[p]lans require any modifications from time to time, then upon request by [Plaintiffs], Mayotte

shall execute the modifications and shall be compensated on a time and materials basis at

Mayotte standard rates. . . .” (Moceri Aff. Ex. A.) In September of 2001, the parties to the

original license agreement entered into a confirmatory addendum. (Id. Ex. B; August 6, 2003

Prelim. Inj. Hearing Tr. at 12.) The agreement stated:

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.

2. [Plaintiffs] have the right to sue to enforce any of their exclusive rights

under the Agreement.

(Id.) 

Plaintiffs have developed numerous condominium projects based upon the Knollwood

and Aberdeen plans. These include, for example, Aberdeen Gardens in Sterling Heights,

Michigan; Glenmoor Village in Macomb Township, Michigan; Warwick Village in Macomb

Township, Michigan; Aberdeen Pines in Sterling Heights, Michigan; Stratford Village in

Sterling Heights, Michigan; and Oakmonte in Oakland Township, Michigan. 

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 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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At issue in this case is a condominium project commonly known as Gateway Oaks that

Defendants developed. (Compl. at ¶ 22.) The Plaintiffs’ Aberdeen Pines condominium project

in Sterling Heights, Michigan,3

 is adjacent to and surrounds Gateway Oaks. (Id.) Based upon

their review of the Gateway Oaks plans filed with the Sterling Heights Building Department,

Plaintiffs allege that the Gateway Oaks plans “are substantially similar to, and copy, the

Aberdeen [p]lans and . . . [w]orks.” (Id. at ¶¶ 24-25.) Plaintiffs, therefore, filed the instant

action against Defendants for infringement of Plaintiffs’ copyrighted Knollwood plans,

Aberdeen plans, and Aberdeen buildings (collectively “copyrighted materials”). (Id. at ¶¶ 20,

32-33, 36.) 

Count I of Plaintiffs’ complaint sets forth a claim of copyright infringement against

Gateway, Arrow, Design, and N & D. Count II sets forth a claim of copyright infringement,

pursuant to principles of vicarious liability, against D’Angelo and Sarafano. Count III sets forth

a claim of copyright infringement, under principles of contributory liability, against MCS, Jones,

and Hall. 

On August 27, 2002, Defendants Gateway, Arrow, N & D, D’Angelo, and Sarafano filed

a Counterclaim against Plaintiffs, seeking a declaratory judgment, pursuant to 28 U.S.C. § 2201,

et seq., declaring the parties’ respective rights under copyright law. On September 11, 2002,

Defendants M.C.S. and Jones filed a Counterclaim against Plaintiffs, also seeking a declaratory

judgment, under § 2201, declaring the parties’ respective rights under copyright law.

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Although 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.)

6

On November 22, 2002, Plaintiff filed a motion for a preliminary injunction. On August

28, 2003, the Court issued an opinion and order denying Plaintiffs’ motion for a preliminary

injunction. The Court reasoned, in part, that a strong likelihood existed that either side could

prevail on the ultimate issue of copyright infringement. (August 28, 2003, Opinion at 34.)

On March 11, 2005, Plaintiffs filed a Re-Filed Motion for Summary Judgment

Dismissing Defendants’ Affirmative Defense that Construction of the Knollwood Building

Turned the Building Design Over to the Public Domain. On March 18, 2005, Defendants Design

and Hall each filed a motion for summary judgment on Plaintiffs’ claims against them. Also on

March 18, 2005, Defendant Gateway, on behalf of itself and Defendants D’Angelo, Sarafano,

Arrow, and N & D, filed a motion for summary judgment on Plaintiffs’ claims against them. 

On April 29, 2005, the Court granted Plaintiffs’ re-filed motion as to all of the

Defendants except for Design.4

 Applying the law-of-the-case doctrine, the Court rejected the

affirmative defense that the Knollwood building design, as embodied in the Knollwood plans, is

in the public domain. 

Now before the Court are Defendants’ motions for summary judgment on Plaintiffs’

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claims. 

II. ANALYSIS

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with affidavits, if any, show that there is no genuine issue of

material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). A “material” fact is one “that might affect the outcome of the suit under the governing

law[.]” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A “genuine” issue exists “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The

Court must 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. In deciding a motion for summary judgment, the Court must draw all justifiable

inferences from the evidence in the non-moving party’s favor. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-moving party “must do more

than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586.

Under the law-of-the-case doctrine, a court generally may not revisit an issue that it

decided, whether expressly or by necessary implication from its disposition, at an earlier stage of

the proceedings; rather, once a court has decided an issue, the court should usually give effect to

that decision throughout that litigation. In re Kenneth Allen Knight Trust, 303 F.3d 671 (6th Cir.

2002). While the law-of-the-case doctrine is discretionary in that it does not limit the court’s

power to revisit a previously-decided issue, a court should exercise its power to reach a result

that is inconsistent with a prior decision that it reached in the same case only sparingly and under

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

would work a manifest injustice. Id. An intervening change in controlling law between the date

of the first ruling and the date that it is revisited would constitute such a cogent reason. See

Amen v. City of Dearborn, 718 F.2d 789 (6th Cir. 1983). 

An architectural work is “the design of a building as embodied in any tangible medium of

expression, including a building, architectural plans, or drawings.” 17 U.S.C. § 101. Before the

enactment of the Architectural Works Copyright Protection Act, Pub. L. No. 101-650, Sec. 701,

104 Stat. 5089 (“the AWCPA”), which only applies to architectural works that were created on

or after December 1, 1990, its date of enactment, physical buildings that were constructed based

upon copyrighted architectural plans could not receive copyright protection. 1 MELVILLE B.

NIMMER AND DAVID NIMMER, NIMMER ON COPYRIGHT § 2.20 (2003) (footnotes omitted). 

Copyright law, however, has long since afforded architectural plans, as distinct from buildings,

protection as “pictorial, graphic, and sculptural works.” 17 U.S.C. § 102(a)(5); see Robert R.

Jones, Assoc. v. Nino Homes, 858 F.2d 274, 278 (6th Cir. 1988). 

The statutory copyright protection in architectural plans does not protect the building

depicted in those plans because the law before January 1, 1978, did not recognize such

protection. See 17 U.S.C. § 113(b); Robert R. Jones, Assoc., 858 F.2d at 278. As to the scope of

copyright protection in architectural plans, the Sixth Circuit Court of Appeals has held that,

although “one may construct a house which is identical to a house depicted in copyrighted

architectural plans, . . . one may not directly copy those plans and then use the infringing copy to

construct the house.” Robert R. Jones, Assoc., 858 F.2d at 280; see Imperial Homes Corp. v.

Lamont, 458 F.2d 895, 899 (5th Cir. 1972) (holding that infringement of a copyrighted

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Although 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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architectural plan occurs upon the imitation or transcription of such plan “in whole or in part”). 

Moreover, “where someone makes infringing copies of another’s copyrighted architectural

plans,” the copyright owner may recover damages that “include the losses suffered as a result of

the infringer’s subsequent use of the infringing copies”–e.g. the construction of a building based

upon those copies. Robert R. Jones, Assoc., 858 F.2d at 280. 

In this case, the Knollwood buildings are a development of fifty separate buildings,

nineteen of which were constructed before December 1, 1990. (Resp. at 3. n.7; Moceri Dep. at

15.) Consequently, Plaintiffs neither dispute that the Knollwood buildings are not entitled to

copyright protection nor rely upon any such protection to support their claims.5

 (Resp. to

Gateway at 5.) See Chirco v. Hampton Ridge, L.L.C., No. 01-72015 (E.D. Mich) (Aug. 31, 2001,

Stipulated Order) (J. Roberts) (conceding that the copyright registration for the Knollwood

buildings is invalid). Rather, the thrust of Plaintiffs’ claims is that Defendants, via the Gateway

Oaks plans, infringed the Knollwood building design, as embodied in the Knollwood plans and

their derivative works. (Compl. at ¶¶ 20, 24-25, 32-33, 36.)

A. Standing

As a threshold matter, Design maintains that Plaintiffs lack standing under 17 U.S.C. §

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Design 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.

10

501(b) on the ground that they are neither the owners nor the exclusive licensees of the

copyrighted materials. (Mot. at 1.) 17 U.S.C. § 501(b) provides, in pertinent part:

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. 

Pursuant to the 1997 Agreement, Mayotte granted exclusive licenses in the copyrighted

materials to the following licensees: 1) Plaintiffs; 2) Knollwood Associates; 3) Aberdeen Village

LLC, and 4) Moceri Development Corporation. (Design Br. at 2; Ex. D.) In 2003, MB

Properties received a license in the copyrighted materials to develop Riverwalk, an Aberdeenstyle development, in exchange for a license fee.6

 (Design Br. at 2; Moceri Dep. at 14-16, Ex. E). 

Design asserts that § 501(b)’s bestowal of copyright standing upon a copyright owner’s

“exclusive licensee” is limited to only a single such licensee. (Design Br. at 5.) Put another

way, Design argues that a copyright owner’s grant of a license to more than one individual

destroys the exclusivity of any one license such that each licensee lacks copyright standing under

§ 501(b). (Design Reply at 1.) Conceding that the Copyright Act does not define the term

“exclusive,” Design maintains that, under the plain-meaning of that term, “exclusive” denotes

one or that which is not shared with another. (Design Br. at 5; Reply at 2.) Design underscores

that, here, the licensees of the copyrighted materials have equal rights to those licenses and, thus,

share the same bundle of rights with each other. (Design Br. at 5-6, Reply at 2; Moceri Dep. at

21-16; Chirco Dep. at 109-110, Ex. P.)

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Plaintiffs, in response, contend that Mayotte’s grant of an exclusive license in the

copyrighted materials to each Plaintiff, among others, constitutes the requisite exclusive license

for purposes of copyright standing under § 501(b). In support, Plaintiffs aptly note that the

Copyright Act recognizes joint and exclusive ownership of the same bundle of rights. (Resp. to

Design at 1, 6.) See 1 Nimmer On Copyright §§ 6.09, 6.10 (observing that federal copyright law

treats joint owners as “tenants-in-common,” with each owning an undivided interest in the whole

copyright and with each entitled to exercise all of the exclusive rights of a copyright owner that §

106 sets forth); Fantasy, Inc. v. Fogerty, 654 F. Supp. 1129, 1130 (N.D. Cal. 1987) (“As joint

owners of such exclusive rights as reproduction, preparation of derivative works, public

performance, and distribution and sale, each co-owner has ‘an independent right to use or license

the use of the copyright.’”) (citing Oddo v. Ries, 743 F.2d 630, 633 (9th Cir. 1984)); Bridgeport

Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830 (M.D. Tenn. 2002)(discussing the rights of

co-ownership of copyright). According to Plaintiffs, copyright law’s recognition of joint

ownership of exclusive rights demonstrates that § 501(b) does not withhold copyright standing

when there is more than one licensee of an exclusive license. (Resp. to Design at 9.) 

To find that a licensee of an exclusive license lacks copyright standing because the

copyright owner also granted the exclusive license to one or more other licensees would, indeed,

fly in the face of case law affirming the Copyright Act’s recognition of joint ownership of

exclusive rights. Moreover, it would be tantamount to holding that copyright law gives such

licensees rights without the necessary remedy for a violation of those rights. Therefore, the

Court finds that Plaintiffs have standing to assert their claims. 

B. Copyright Infringement

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Defendants 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.)

12

A copyright owner has the exclusive right to reproduce the copyrighted work, to prepare

derivative works based upon the copyrighted work, and to distribute copies of the work. See 17

U.S.C. §§ 106(1), (3). “Anyone who violates any of the exclusive rights of the copyright owner .

. . is an infringer of the copyright.” 17 U.S.C. § 501(a); see Sony Corp. v. Universal City

Studios, Inc., 464 U.S. 417, 423-433 (1984). To establish a claim of copyright infringement, a

plaintiff must show: 1) that he owns a valid copyrighted work; and 2) that the defendant copied

protected elements of that work. Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d

522, 534 (6th Cir. 2004). “If no direct evidence of copying is available, a claimant may establish

th[e] [second] element by showing that the defendant had access to the copyrighted work and

that the copyrighted work and the allegedly copied work are substantially similar.” Id. 

Gateway and Design argue that Plaintiffs, as a matter of law, have failed to demonstrate

that Defendants, via the Gateway Oaks plans, infringed the Knollwood building design, as

embodied in the Knollwood plans and their derivative works. (Design Mot. at 2, Br. at 11;

Gateway Br. at 15.) According to Design, Brian Gill (“Gill”) of Design designed Gateway Oaks,

and he did so independently and without any access to the Knollwood plans or their derivative

works. (Design Br. at 3; Gill Dep. at 41-42, 79, Ex. K) Here, Plaintiffs rely upon circumstantial

evidence to demonstrate Defendants’ alleged copyright infringement.7

1. Access

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Gateway and Design contend that Plaintiffs, as a matter of law, have failed to show that

Defendants had access to the Knollwood building design, as embodied in the Knollwood plans

and their derivative works. Plaintiffs, in turn, argue that they have presented sufficient evidence

to raise a genuine issue of material fact that Defendants had such access. (Resp. to Design at 2-

4.)

An opportunity to view the protected material constitutes the requisite access. Robert R.

Jones Assoc., 858 F.2d at 277; 4 Nimmer on Copyright § 13.02[A]. A party may establish access

by demonstrating that: 1) the copyrighted work had been widely disseminated; or 2) a particular

chain of events occurred by which the alleged infringer might have gained access to the

copyrighted work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000). 

Design and Gateway contend that none of the witnesses had personal knowledge that

Design, via Gill, or Gateway had access to the Knollwood or Aberdeen plans before the Gateway

Oaks plans were created on November 9, 2000. (Design Br. at 3, 12; Moceri Dep. at 33-35;

Chirco Dep. at 63-64, 70-71, Exs. L & Test.)(Gateway Br. at 15-16; Moceri 3/27/03 Dep. at 64-

65, Ex. 9.) As Gateway notes, D’Angelo testified that he had never seen or inspected the

Knollwood plans until after the commencement of this suit. (Gateway Br. at 16; 8/6/03 Prelim.

Inj. Tr. at 75, 84-85, Tab 17.)

As Plaintiffs note, however, Moceri averred that the Aberdeen plans were on file with the

Shelby Township Building Department and, as such, were publicly available. (Moceri Aff. at ¶

47; Resp. to Design at 4.) Moceri further averred that Plaintiffs advertised their condominiums

in a variety of sources, including the Sunday newspapers and the Internet, and that those sources,

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.) 

In any event, Plaintiffs principally contend that Defendants copied the Knollwood

building design from the Aberdeen Pines and Gardens plans or buildings, which embody that

design, rather than from the Knollwood plans or the Aberdeen (Village) plans or buildings, the

copyrights allegedly infringed. (See Merz Dep. at 57-58, Design Ex. J.) (testifying that all of the

Aberdeen projects embody the Knollwood building design). Gateway challenges, without

elaboration, Plaintiffs’ reliance upon the other Aberdeen projects to show Defendants’ access to

the Knollwood building design. (Reply at 4.) However, the Court, in its August 28, 2003,

opinion found it proper to consider evidence of Defendants’ access to the Knollwood building

design via Aberdeen Pines and Gardens. (Opinion at 28 n.15.) Indeed, “[o]ne who views a

performance of a copyrighted work and copies expressions contained in that work may be found

to have infringed” the underlying work. Twin Peaks Prods., Inc. v. Publications Int’l, LTD., 996

F.2d 1366 (2d Cir. 1993)(holding that the defendant’s access to broadcast programs that

“contained virtually all of the protected expression in the [allegedly-infringed] teleplays” serves

“as the functional equivalent of access to the protectable content of the teleplays”). 

 As to Defendants’ alleged access to Aberdeen Pines, Plaintiffs point to the Declaration of

Tom Wujczyk (“Wujczyk”), which demonstrates the following: 1) brochures for Aberdeen

Pines, which included its building design, were distributed beginning in July of 2000; 2) the first

visitors to Aberdeen Pines arrived in July of 2000; 3) five units of Aberdeen Pines were sold by

July 16, 2000; 4) the Master Deed for Aberdeen Pines, which includes floor plans that MCS

prepared, was recorded on August 23, 2000; 5) the first building permit and Certificate of

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

constructed; and 7) by the time that Gateway Oaks received its first building permit on May 13,

2002, all 168 units of Aberdeen Pines were fully constructed and occupied. (Exs. A & B, Resp.

to Design; Wujczyk Aff. at ¶¶ 7-8)(Resp. to Gateway at 2-4.) As Plaintiffs further underscore,

Jack Nelson, D’Angelo’s partner in Gateway Oaks, was the title agent for Aberdeen Pines and,

as such, had direct access to its master deeds and other documents showing the Knollwood

building design. (Resp. to Gateway at 2, 12; Deeds, Ex. B.) Concerning Aberdeen Gardens, in

particular, Wujczk averred that construction on Aberdeen Gardens began in November of 1998,

and that all 360 units of Aberdeen Gardens were fully constructed and occupied by May 13,

2002. (Wujczk Aff. at ¶¶ 5, 8.) 

According to Plaintiffs, the master deeds for Aberdeen Pines and Gardens, both of which

embody the Knollwood building design, were filed with the Macomb County Register of Deeds

and, thus, were a matter of public record. (Resp. to Gateway at 2-3, 12.) Wujczk averred that

MCS prepared the master deeds for Aberdeen Pines, Aberdeen Gardens, and Gateway Oaks, and

that he provided MCS with construction drawings of Aberdeen Pines and Gardens so that MCS

could prepare those deeds. (Id. at 12; Wujczk Aff. at ¶¶ 2-4.) Additionally, Plaintiffs argue that

the Gateway Defendants’ hiring of MCS and Hall, both of which had worked on Aberdeen Pines

and Gardens, shows Defendants’ intention to copy the Knollwood building design and “to

achieve the economic advantage of using subcontractors who had already created and

constructed the virtually identical Aberdeen projects.” (Resp. to Design at 3; Resp. to Gateway

at 4.)

Design and Gateway assert that there is insufficient evidence, as a matter of law, that

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16

they had access to the Knollwood building design, as embodied in the Knollwood plans and their

derivative works. (Design Reply at 5; Gateway Br. at 15.) Specifically, Design and Gateway

contend that there is nothing but speculation to show that they possessed or viewed any plans

embodying the Knollwood building design, and that such speculation is insufficient to rebut

Gill’s testimony that he independently created the Gateway Oaks plans. (Design Br. at 12;

Reply at 5; Gill Dep. at 79, Ex. K; Gateway Br. at 15.) However, as recited above, Plaintiffs

have presented much more evidence of access–i.e. a mere opportunity to view–than bare

speculation. 

Plaintiffs have created an issue of fact as to whether Defendants had access to the

Knollwood building design, as embodied in the Knollwood plans and their derivative works. Of

special note, in Ronald Mayotte & Assoc. v. MGC Bldg. Co., 885 F. Supp. 148, 152 (E.D. Mich.

1994), Judge Nancy Edmunds found the requisite access to architectural plans based upon

evidence that the defendant built the infringing development in the vicinity of the plaintiff’s

homes; that the plaintiff had distributed sales brochures containing their copyrighted designs;

and that the plaintiff had submitted those designs to the City of Novi. See also Robert R. Jones

Assoc., Inc., v. Nino Homes, 686 F. Supp. 160, 162 (E.D. Mich. 1987) (finding access to

copyrighted floor plans where companies built homes in the same neighborhood and the plaintiff

opened model homes for public viewing). As the Court noted in its August 28, 2003, opinion,

the evidence then available, “taken as a whole, would be sufficient to create a[n] . . . issue of . . .

fact [regarding Defendants’ access] for purposes of a summary judgment motion.” (Opinion at

28). The evidentiary landscape has not materially changed since that time. 

2. Substantial Similarity to Protected Elements

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“To demonstrate substantial similarity, a Plaintiff need not prove mindless, slavish, or

inartful copying. Rather, substantial similarity exists if, comparing the allegedly infringing work

to the copyrighted work, ‘an average lay observer would recognize the alleged copy as having

been appropriated from the copyrighted work.’” Arthur Rutenberg Homes, Inc. v. Maloney, 891

F. Supp. 1560, 1567 (M.D. Fla. 1995); see Kohus, 328 F.3d at 855 (holding that substantial

similarity does not require identity, and that it exists where the work is recognizable as having

been taken from the copyrighted source). 

Assuming arguendo that the Knollwood building design is protected, Gateway and

Design maintain that Plaintiffs, as a matter of law, have failed to establish that the Gateway Oaks

plans are substantially similar to that design, as embodied in the Knollwood plans and their

derivative works. (Gateway Br. at iv.) Plaintiffs contend otherwise. (Resp. to Gateway at 2.) 

Gateway contends that, because Johnson and Merz identified over 547 differences

between the Aberdeen and Knollwood plans and the Gateway Oaks plans, those plans are not

substantially similar. (Gateway Br. at 19; Johnson Report at 6-26, Ex. 26/B) However, as the

Court, in its August 28, 2003, opinion, recognized:

The differences within the units, such as changes in the location of the bedrooms,

changes in the dimensions of the rooms, etc., are immaterial to whether the two

buildings are substantially similar with respect to the overall arrangement of

space. As noted in Nimmer on Copyright:

It is entirely immaterial that, in many respects, [the] plaintiffs’ and

[the] defendant’s works are dissimilar, if in other respects,

similarity as to a substantial element can be shown. ‘No plagiarist

can excuse the wrong by showing how much of his work he did

not pirate.’ If substantial similarity is found, the defendant will not

be immunized from liability by reason of the addition in his work

of different characters or additional and varied incidents, nor

generally by reason of his work proving more attractive or saleable

than the plaintiffs.

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18

4 MELVILLE B. NIMMER AND DAVID NIMMER, NIMMER ON

COPYRIGHT § 13.03[B][1][a] (2003) (quoting Sheldon v. Metro-Goldwyn

Pictures Corp., 81 F.2d 49 (2d Cir. 1936)(Hand. J.)). 

Design and Gateway argue, with much effort, that Merz, Plaintiffs’ expert, testified that,

in his opinion, Defendants did not copy, reproduce, or distribute the Knollwood or Aberdeen

plans. (Design Br. at 3; Merz Dep. at 99-101, Ex. J)(Gateway Br. at iv, 16; Merz Dep. at 44-45,

155-56, Ex 7). In support, Gateway cites to the following excerpt from Merz’s deposition

testimony:

Q . . . . Did you ever compare the drawings of the Gateway building

with the sheets of drawings of the Knollwood building on a sheet

by sheet basis to see whether Gateway reproduces . . . any of the

sheets of the Knollwood . . . drawings?

A. I looked at both projects and many more. I did not do a sheet by sheet

comparison of any projects, not even the projects, the separate projects

generated by Moceri/Mayotte, nor do I think that’s germane to my

opinion. I have never contended that individual sheets were copied, in

fact that would be quite obvious, you know, what somebody was copying. 

What I contend repeatedly is the design was designed early on by Mayotte

and Moceri, and[,] after that design came about[,] other developers started

using it and that–in light of that, the individual sheets of drawings were

not important to me and I had no opinion on that. So you’re asking me

repeatedly something that I cannot and will not testify to. I just–it’s not

germane to my opinion, it’s not what I did. 

(Merz 3/23/04 Dep. at 44-45, Ex. 7.) According to Gateway, Merz further testified that, upon

comparing the sheets of the Knollwood or Aberdeen plans with the Gateway Oaks plans at his

deposition, he believed that they were not copies. (Gateway Br. at iv, 12 n.15; Merz Dep. at 139-

40, 147-48, 172, Ex. 7.) 

This argument, however, mischaracterizes Merz’s testimony. While Merz testified, in

effect, that Defendants did not literally or slavishly copy the Knollwood or Aberdeen plans–i.e.

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by Xeroxing the protected plans or tracing each line in them and treating the resulting product as

belonging to Gateway Oaks (Merz Dep. at 99-100, 133, 154)–Merz never wavered on his belief

that the Gateway Oaks plans copied the Knollwood building design, as embodied in the

Knollwood plans and their derivative works. (Design Br. at 9; Merz Dep. at 69-72, 155-56, Ex.

J; Merz Rule 26 Report, Ex. Q). For example, Merz testified that the “similarities of the

dimensions of the footprints, it’s way too close to start to say this was just totally independently

arrived at” (Merz Dep. at 98, Ex.J); that “the design idea is copied” (Id. at 99.); and that the

“spacial arrangement . . . is a copy.” (Id. at 99, 101-02).

 Gateway argues that a side-by-side comparison of the Knollwood and Gateway Oaks

plans reveal that no substantial similarity exists between them. (Gateway Br. at 19; see Ex. 26/B

&D; Johnson Report 6-26, Ex. 26.) Gateway notes that Design, via Gill, testified that it did not

reproduce, replicate, or distribute the Knollwood or Aberdeen plans. (Gill Dep. at 88; Gateway

Br. at iv.) Johnson, at the preliminary-injunction hearing, testified that the Gateway Oaks plans

were not a copy of the Knollwood and Aberdeen plans. (Gateway Br. at 19; Prelim. Inj. Tr. at

134-49, Ex. 17). 

 As Plaintiffs note, the Court, in its August 28, 2003, opinion, found the requisite

evidence of substantial similarity. (Resp. to Design at 13; Opinion at 30.) Specifically, the Court

concluded: 

It cannot be doubted . . . that sufficient similarities exist between the two

arrangements of space which requires submission of the case to the ultimate trier

of fact. An overlay of the Gateway Oaks building ‘footprint’ and the Aberdeen

Village ‘footprint’ reveals that the overall building perimeters are quite similar. 

(Def.’s Resp. Br. Exh. 3 - Johnson Report Exh. X.) More importantly, the overall

arrangement of space is strikingly similar. Both buildings contain twelve units

that are efficiently divided into four identical fire rated quadrants without the use

of a common hallway. Each individual unit, as a whole, is positioned within the

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20

overall complex in virtually the same manner. This positioning allows each unit

in both buildings to have direct access to the occupant’s garage.

At the same time, one of the more important features of Plaintiffs’ arrangement of

space is noticeably absent from the Gateway Oaks arrangement of space. The

Knollwood and Aberdeen Village developments have six single-car garages

located at the end of the building. The positioning of all of the garages at the end

of the building facilitated two of the more important, and more original, features

of Plaintiffs’ arrangement of space – (1) the architecturally identical nature of the

front and back of Plaintiffs’ buildings which created an attractive visual appeal;

and (2) the building’s ability to efficiently occupy a site because the garages of

adjoining buildings would face each other, allowing for a compact driveway

orientation between two buildings. (Moceri Affidavit ¶’s 9-10.) The Gateway

Oaks building, on the other hand, lacks this critical arrangement of space. The

Gateway Oaks building has four garages positioned in the front. As such, the

front and back of the Gateway Oaks building are not architecturally identical, an

important distinction. 

(August 28, 2003, Opinion at 32-33.) While this reasoning does not constitute the law of the

case, it is persuasive as the evidentiary background upon which it rests has not materially

changed. Thus, Plaintiffs have created an issue of fact as to whether the Gateway Oaks plans are

substantially similar to the Knollwood building design, as embodied in the Knollwood plans and

their derivative works. 

The record evidence, when viewed in Plaintiffs’ favor, creates issues of fact as to whether

Defendants had access to the Knollwood building design, as embodied in the Knollwood plans

and their derivative works, and as to whether the Gateway Oaks plans are substantially similar to

that design. However, as discussed below, Plaintiffs’ claims fail as a matter of law for another

reason. 

C. Copyright Protection for the Knollwood Building Design

Gateway and Design contend that the “Knollwood building design”–the arrangement of

space–is not entitled to copyright protection on three principal grounds. 

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 8

See 37 C.F.R. 202.11 (d)(3) (excluding from registration as an architectural work “[t]he

design of buildings where the plans or drawings of the buildings were published before

December 1, 1990 or the buildings were constructed or otherwise published before December 1,

1990”); 37 C.F.R. 202.11 (c)(5) (“Publication of an architectural work occurs when underlying

plans . . . of the building or other copies of the building design are distributed or made available

to the general public by sale or other transfer of ownership or by rental, lease or lending. 

Construction of a building does not itself constitute publication for purposes of registration

unless multiple copies are constructed.) 

21

1. The AWCPA 

Design contends that the Knollwood building design, as embodied in the Knollwood

plans and their derivative works, is not entitled to copyright protection because the Knollwood

plans and buildings, both of which embody that design, were constructed and published,

respectively, before December 1, 1990, the effective date of the AWCPA. (Design Mot. at 1, Br.

at 2-3, 7; Reply at 2-4; Ex. F & G.) Design asserts that, regardless of whether it is embodied in

plans or buildings, a design of a building–defined as an “architectural work” under the

AWCPA–may be copyrighted only if, pursuant to the AWCPA, it was published or constructed

after December 1, 1990.8

 (Design Br. at 7-8; Reply at 2-4.) Design further asserts that, even

though the Knollwood plans–created before December 1, 1990–and the Aberdeen plans and

buildings–created after December 1, 1990–embody the Knollwood building design, that design

was and always will be in the public domain by virtue of its having been published or

constructed before December 1, 1990. (Design Mot. at 1-2; Reply at 2-4.) According to Design,

only the AWCPA affords copyright protection to building designs. (Design Br. at 8; Reply at 4.) 

Plaintiffs, in response, rely upon the arguments that they set forth in their pleadings on

their re-filed motion. (Resp. to Design at 1, 10-12.) Specifically, Plaintiffs assert that, as a

matter of law, the building design of the copyright-protected Knollwood plans is not in the

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 9

Gateway asserts that Plaintiffs’ continued contention that the Knollwood buildings are

derivatives of the Knollwood plans lacks any factual or evidentiary basis.(Resp. at 4. n. 9.)

Specifically, Gateway argues that the Knollwood buildings’ registration does not indicate that

they are such derivative works. (Id. at 4-5 n.9, 11.) See 17 U.S.C. § 109 (providing that the

application for copyright registration should include, “if the work has been published, the date

and identification of its first publication” and, if the work is derivative, “an identification of any

pre-existing work . . . that it incorporates, and a brief, general statement of the additional

material covered by the copyright being registered”). 

Yet, to remedy this defect in the initial registrations, supplemental registrations, filed in

October of 2001, 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). Moreover,

Gateway cannot plausibly argue that the construction of the Knollwood buildings preceded the

plans for such construction.

22

public domain by virtue of having been built in buildings falling outside the AWCPA. (Re-filed

Mot. at 1; Br. at 1.) According to Plaintiffs, the Knollwood buildings, like the Aberdeen plans

and buildings, are derivatives of the Knollwood plans, the original copyrighted material.9

 (Refiled Br. at 1; See August 28, 2003, Opinion at 22-23.) Plaintiffs argue that the absence of

copyright protection for derivative buildings under the AWCPA does not negate the validity of

the copyright in the underlying plans or, as Defendants contend, turn the building design in the

protected plans over to the public domain. (Re-filed Br. at 1-7.) Plaintiffs underscore that the

Court’s August 28, 2003, opinion and order denying Plaintiffs’ motion for a preliminary

injunction held as much and, thus, forecloses Defendants’ continued reliance upon any such

legal defense. (Re-filed Br. at 1.)

Plaintiffs are correct. As the Court found in its August 29, 2005, opinion granting

Plaintiffs’ re-filed motion, the Court’s August 28, 2003, opinion, the complete reasoning of

which the Court will not belabor by repeating, makes clear that “the Knollwood building design

receives copyright protection by virtue of the copyright protection of the Knollwood plans,

2:02-cv-73188-PDB Doc # 214 Filed 08/26/05 Pg 22 of 28 Pg ID 5380
 10On May 13, 2005, all of the Defendants except Design filed a motion for reconsideration of

the Court’s April 29, 2005, ruling. The Court, however, concludes that they are not entitled to

relief under Eastern District of Michigan Local Rule 7.1(g). Accordingly, the Court DENIES

Defendants’ motion for reconsideration.

23

which embody the building design, as a ‘pictorial, graphic, or sculptural work’ under 17 U.S.C. §

102(a)(5), which separate copyright protection the AWCPA leaves intact.”10 (April 29, 2005,

Opinion at 14.) Neither a change in intervening law nor any arguments in Design’s pleadings

repudiate this legal conclusion or counsel against applying it as the law of the case. Design cites

no legal authority dictating otherwise.

The Court wishes to underscore, however, the limited scope of protection that the

Knollwood plans–and, thus, the Knollwood building design that they embody–receive as

“pictorial, graphic, or sculptural” works under 17 U.S.C. § 102(a)(5). Although one properly

could construct a building that is identical to the building depicted in the Knollwood plans, one

could not directly copy those plans–in whole or in part–and then use the infringing copy to

construct a building. See Robert R. Jones, Assoc., 858 F.2d at 280; Imperial Homes Corp., 458

F.2d at 899. Moreover, if one were to have made infringing copies of the Knollwood plans, the

recoverable damages would include any losses stemming from the subsequent use of those

infringing copies, such as by constructing a building based upon them. See Robert R. Jones,

Assoc., 858 F.2d at 280. 

2. Ideas Versus Expression of Ideas

Gateway and Design cursorily argue that the Knollwood building design is in the public

domain because it consists of unprotected ideas rather than the protected expression of ideas. 

See Nino Homes, 858 F.2d at 277 (“Copyright protects only the work’s particular expression of

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24

an idea, not the idea itself.”)(internal quotation marks omitted). (Design Br. at 3, 11; Merz Dep.

at 78-80, 83-84, 88; Chirco Dep. at 57-58, Moceri Dep. at 79-80, Exs. J & M.) (Gateway Br. at

12, Reply at 1.) However, the Court, in its August 28, 2003, opinion clearly rejected such an

assertion. (Opinion at 16.) As the Court reasoned, in pertinent part:

. . . Plaintiffs do not seek a monopoly in the individual ideas contained in their

copyrighted architectural plans and works. Instead, . . . [they seek] to protect the

original expression of these architectural features in the combined arrangement of

space expressed in the copyrighted material . . . . 

This protection, therefore, would not prevent a third-party, such as the Defendants

in this case, from independently creating their own architectural plans based upon

general abstract ideas circulating in the architectural community (such as locating

single car garages on each side of a building so [that] each occupant will have

direct access to their own garage). Instead, copyright protection of the

architectural plans (expression) merely prohibits a third-party, as Plaintiffs allege

in this case, from simply copying another’s copyrighted original expression in

order to avoid the time and expense of independently creating their own original

expression based upon abstract ideas. 

(August 28, 2003, Opinion at 16-18.) Neither a change in intervening law nor any arguments or

evidence set forth in Gateway’s or Design’s pleadings negate this holding or counsel against

applying it as the law of the case. 

3. Originality

Gateway argues that the Knollwood building design, as embodied in the Knollwood plans

and their derivative works, is unprotected because it is not original to Mayotte, its alleged

creator. (Gateway Br. at 12 n.16, 13; Reply at 3-4.) “The sine qua non of copyright is

originality.” Feist Publ’n Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). In the context

of copyright law, originality only means “that the work was independently created by the author

(as opposed to copied from other works), and that it possesses at least some minimal degree of

creativity.” Id.

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As discussed previously, the Knollwood building design is a twelve-unit structure whose

first floor consists of four units and two rows of six single-car garages at each end and whose

second floor consists of eight units, four of which are over the garages. (Merz Aff. at ¶¶ 8-10.) 

Each of the second-floor units that are over the garages are placed on three such garages so that

the building consists of four distinct quadrangles with fire rated walls separating each

quadrangle. (Id.) Each of the twelve units has direct access to its assigned garage. (Id.) 

Gateway asserts that Mayotte copied the Knollwood building design from one or more of

three pre-existing sources of that design. (Gateway Br. at 13-14; Reply at 4.) As Douglas A.

Johnson (“Johnson”) averred, the Glenns of Bloomfield (“the Glenns”) is an eight-unit apartment

building, constructed in 1966, that includes “garages on the outer ends of each building, with

carriage units over the garages.” (Johnson Supp. Aff. at ¶¶ 15-16.) According to Johnson, the

Glenns is located eight miles from Mayotte’s office and is visible from its major crossroads. (Id.

at ¶ 15.) Johnson further averred that Maple Place, constructed between 1983 and 1984, is an

eight-unit condominium building that consists of four units on each floor; four garages on each

end of the building with each garage having direct access to its assigned unit; stacked ranches

with back-to-back layouts; and the quadrant design. (Gateway Br. at 13; Johnson Aff. at ¶¶ 5-8.) 

According to Johnson, Maple Place is located thirteen miles from Mayotte’s office and is readily

visible from one of its major crossroads. (Johnson Aff. at ¶¶ 4, 14.) Johnson averred that

Mayotte’s draftsman, Lanny Galyon, inspected Maple Place before creating the Knollwood

plans. (Id.) 

Noting that the Knollwood building design includes two additional units above the

garages on each end of the building to create a twelve-unit structure, Johnson averred, however,

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that Huntington Park, along with the Glenns, contained such above-garage units. (Johnson Aff.

at ¶¶ 5, 14.) According to Johnson, Huntington Park, constructed in 1986, is a ten-unit building

that consists of stacked ranches; garages at each end of the building with each garage having

direct access to its assigned unit; and carriage units above the garages. (Id. at ¶ 12.) Johnson

further averred that Huntington Park is located three miles from Plaintiff Moceri’s office, and

that Plaintiffs, as they testified, saw that structure before designing the Knollwood buildings. 

(Id. at ¶ 11.) 

In response, Plaintiffs simply assert that Merz’s affidavit and his testimony at the

preliminary-injunction hearing, which the Court cited in its August 28, 2003, opinion, create a

genuine issue of material fact as to whether the Knollwood building design was original to

Mayotte. (Resp. to Gateway at 10). At the hearing, Merz testified that, upon viewing the plans in

their entirety:

I was hit by a eureka kind of moment, because what jumped off of all the projects

at me was the arrangement of spaces, the design that put six garages on end of the

rectangular building with . . . four first floor units between and eight above, and

the quality that this involved, I have never seen before, that each had a separate

front entrance, but also had direct access to the garage, and that the configuration

design of the overall building, not where windows are, not where bathrooms are,

stairs, but the overall design. It is so compacted, so efficient, had such nice

features, that you could evolve a whole series of designs out of it . . . I could take

or any competent architect could take it and design it to be a black forest tudor, or

cotswold cottage, or some of the things that we have seen here. What I found of

value, what I found to be distinctive in this design was the spacial arrangements

of these units in the garage, which were very attractive and compact, they [] have

a whole bunch of other possibilities, density on site, part like spaces out of the

windows, et cetera. A very economical roadway available with the design. 

(Prelim. Inj. Tr. at 181-82.) 

As Gateway aptly argues, Merz’s testimony as to his opinion of the originality of the

Knollwood building design–i.e. that he had never seen such a design before–is insufficient to

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27

rebut Defendants’ evidence of Mayotte’s copying of that design from at least one of three preexisting sources. (Gateway Br. at 12 n.16.) Indeed, Merz testified that, although he was not

aware of any pre-existing sources of the Knollwood building design, he was not in a “position to

say that”such sources did not exist. (Merz Dep. at 65.) Moreover, Merz testified that he never

asked Mayotte whether the design was original to him. (Gateway Br. at 12 n.16; Merz Dep. at

61, 138.) 

Taking a different tack, Plaintiffs contend that the Court’s August 28, 2003, opinion

finding that the “overall combination of features, taken as a whole, constituted an original

arrangement of space” is controlling here. (Opinion at 31; Resp. to Gateway at 10.) However,

the issue of whether that arrangement of space was original to Mayotte was not before the Court

at that time. 

The Court concludes that Plaintiffs have failed to designate any record evidence that

would create a genuine issue of material fact as to whether Mayotte independently created the

Knollwood building design, as embodied in the Knollwood plans and their derivative works. 

Because Plaintiffs have failed, as a matter of law, to establish that such a design is entitled to

copyright protection, Plaintiffs’ claims of direct and indirect copyright infringement based upon

that design necessarily fail. See Bridgeport Music Inc. v. Diamond Time, Ltd., 371 F.3d 883 (6th

Cir. 2004) (holding that contributory copyright infringement cannot exist absent direct copyright

infringement.) 

III. SUMMARY

For the preceding reasons, the Court GRANTS Defendants’ motions for summary2:02-cv-73188-PDB Doc # 214 Filed 08/26/05 Pg 27 of 28 Pg ID 5385
 11On May 13, 2005, all of the Defendants except for Design filed a Petition under 28 U.S.C. §

1292(b) to Appeal the Court’s April 29, 2005, Opinion and Order. The Court denies this petition

as moot.

28

judgment on all of Plaintiffs’ claims.11 

SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: August 26, 2005

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

August 26, 2005.

s/Jonie Parker 

Case Manager

2:02-cv-73188-PDB Doc # 214 Filed 08/26/05 Pg 28 of 28 Pg ID 5386