Del Madera Properties v. Rhodes and Gardner, Inc.

• Decision Date: 09 September 1985
• Docket Number: No. C-84-6172 WHO.,C-84-6172 WHO.
• Citation: 637 F. Supp. 262
• Court: U.S. District Court — Northern District of California
• Parties: DEL MADERA PROPERTIES, a Joint Venture; et al., Plaintiffs, v. RHODES AND GARDNER, INC., a California corporation, et al., Defendants.

637 F. Supp. 262

DEL MADERA PROPERTIES, a Joint Venture; et al., Plaintiffs, v. RHODES AND GARDNER, INC., a California corporation, et al., Defendants.

No. C-84-6172 WHO.

United States District Court, N.D. California.

September 9, 1985.

Henry C. Bunsow, Townsend & Townsend, San Francisco, Cal., for plaintiffs.

Martin H. Kresse, McKenna, Conner & Cuneo, Melville Owen, Owen, Wickersham & Erikson, Stephen Zalkind, San Francisco, Cal., for defendants.

OPINION AND ORDER

ORRICK, District Judge.

In this copyright infringement action, plaintiffs, Del Madera Properties ("Del Madera"), a joint venture, and joint venturers Leonard Cahn and John Rupp, claim that defendants infringed their copyright rights in a Tentative Map of a residential subdivision in Tiburon, California by developing the subdivision in accordance with the Map after the plaintiffs were foreclosed upon. Plaintiffs were assigned the copyright by Edgar Ross, an architect who participated in the development of the Map, and who received a copyright in April, 1984. On May 24, 1985, following a six day trial, a jury found that the plaintiffs had obtained a valid copyright in the Tentative Map, but that the defendants had not infringed the copyright. Defendants, fearful of future litigation, now move under Rule 50(b) of the Federal Rules of Civil Procedure for a judgment non obstante veredicto. For the reasons hereinafter stated, defendants' motion is DENIED.

I.

In June 1979, plaintiff Leonard Cahn decided to develop the Del Madera subdivision in Tiburon, California. When he purchased the property, Cahn made several notes on behalf of Del Madera Properties in exchange for loans from defendants Bank of the Orient and Balfour Financial Corporation. Del Madera then hired consultants, most notably defendant Rhodes and Gardener, Inc., an engineering firm in which defendant Dean Rhodes is a partner, and Backen, Arrigoni and Ross, an architectural firm in which Edgar Ross is a partner, to prepare documents required by municipal and state ordinances. A Master Plan of the subdivision was submitted to Tiburon in April 1980, and was approved in April 1981, after several modifications were made. The Master Plan set forth the placement of lots, roads, and open spaces. Based on this approved plan, a Precise Plan and Tentative Map was prepared, and was approved by Tiburon on August 5, 1981.

Del Madera defaulted on the notes, and was foreclosed upon. Several of the defendants gained title and proceeded with development of the property, hiring the same consultants employed by Del Madera, and developing in accordance with the Tentative Map. Edgar Ross then applied for a copyright on the Tentative Map. Upon receiving the copyright in April 1984, Ross assigned his rights to plaintiffs, who filed this action on September 5, 1984. On May 24, 1985, the jury returned a verdict that found that the plaintiffs had obtained a valid copyright in the Tentative Map, but that the defendants had not infringed the copyright.

II.

A.

The standard for deciding a motion for judgment non obstante veredicto is whether "the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict reasonable men could have reached." Walker v. KFC Corp., 728 F.2d 1215 (9th Cir.1984). The motion will not be granted where there is substantial evidence to support the jury's verdict. Gordon Mailloux Enterprises, Inc. v. Firemen's Insurance Co., 366 F.2d 740, 741 (9th Cir. 1966).

Plaintiffs have established a prima facie case of copyright infringement. They have put forward evidence of ownership of the copyright by plaintiffs, and copying by defendants. See Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir.1977). Plaintiffs introduced into evidence a certificate of copyright registration in the name of Edgar B. Ross, and an assignment of copyright rights from Mr. Ross to Del Madera Properties. Trial Exhibits 74 and 75. Plaintiffs have also introduced evidence that the Tentative Map was copied by the defendants.

B.

The strongest argument made by defendants in their motion is that the Tentative Map was not copyrightable as a matter of law and, thus, that plaintiffs cannot enforce the rights that they were assigned by Edgar Ross. As a general rule, maps and technical drawings are copyrightable as "pictorial" or "graphic" works under 17 U.S.C. § 102(a)(5). However, defendants argue that this rule should not be applied in the case of Tentative Maps for two reasons.

First, defendants argue that edicts of governments such as judicial opinions, administrative rulings, and legislative enactments are not copyrightable for reasons of public policy. 17 U.S.C. § 702. Defendants argue that because the Tentative Map was approved by Tiburon's town council on August 5, 1981, it is a government enactment that has been subsumed under the general zoning and development laws with which it had to comply pursuant to §§ 66426, 66452, 66452.2, and 66428 of the California Government Code.

In support of this argument, defendants rely on Building Official & Code Administrators International, Inc. v. Code Technology, Inc., 628 F.2d 730 (1st Cir.1980). In Code Technology, plaintiff published a Model Building Code that Massachusetts adopted by license as state law. Defendant published an edition of the Massachusetts Building Code, and was sued for copyright infringement by plaintiffs. The court denied a preliminary injunction motion, holding that the Federal Copyright Act did not protect the plaintiff against loss of its protection through adoption of material from the Model Code as state law.

Defendants' "governmental enactment" argument is unpersuasive. There is no basis for a holding that the Tentative Map is an administrative ruling, legislative enactment, or similar official document. Unlike the building code at issue in Code Technology, the Map is not...