Robert R. Jones Associates, Inc. v. Nino Homes

• Decision Date: 15 April 1987
• Docket Number: No. 83-CV-3016-DT.,83-CV-3016-DT.
• Parties: ROBERT R. JONES ASSOCIATES, INC., Plaintiff, v. NINO HOMES, Michele Lochirco and Deibele-Ginter, Jointly and Severally, Defendant.
• Court: U.S. District Court — Western District of Michigan

686 F. Supp. 160

ROBERT R. JONES ASSOCIATES, INC., Plaintiff, v. NINO HOMES, Michele Lochirco and Deibele-Ginter, Jointly and Severally, Defendant.

No. 83-CV-3016-DT.

United States District Court, E.D. Michigan.

April 15, 1987.

Jerold I. Schneider, Cullen, Sloman, Cantor, Graver, Scott & Rutherford, Detroit, Mich., for plaintiff.

Robert A. Miller, Southfield, Mich., Stephen R. Levine, Farmington Hills, Mich., Arnold S. Weintraub, Troy, Mich., for defendant.

OPINION

HACKETT, District Judge.

Plaintiff, Robert R. Jones Associates, Inc. ("Jones"), has alleged that the defendants have jointly and severally violated the Copyright Act, 17 U.S.C. § 101 et seq., by duplicating plaintiff's copyrighted architectural drawings and using them in the construction of seven houses built and sold by defendant Nino Homes ("Nino").

Jones is a Michigan corporation engaged in the business of designing, building and selling custom houses, with its principal place of business in West Bloomfield, Michigan.

Defendant Nino is a Michigan corporation, with its principal place of business in Rochester, Michigan. It also is engaged in the construction and sale of new houses. Defendant Michele Lochirco ("Lochirco"), a resident of Utica, Michigan, is the principal shareholder and president of Nino and its chief executive and operating officer.

Defendant Deibele-Ginter was a partnership established under Michigan law in 1966 by Richard Deibele, a licensed architect, and his business partner Clifford Ginter. The business of the partnership had been conducted out of the partners' respective homes during the eight month period preceding Ginter's death, and the consequent dissolution of the partnership on June 11, 1983.

In 1980 Jones had engaged an architect to prepare a complete set of architectural drawings, including floor plans and elevations, for a house Jones referred to as the "Aspen". These plans were based on concepts generated by Robert Jones, the sole shareholder of Jones corporation. Thereafter Jones constructed two model houses in accordance with his Aspen plans, one in Grosse Pines subdivision in Rochester, Michigan, the other in Maplewood North subdivision in West Bloomfield, Michigan.

In June, 1983, Jones obtained Certificates of Copyright Registration of the complete set of architectural plans for the Aspen and of an abridged technical drawing which is a photographic reduction of the Aspen floor plans. Jones has alleged that the defendants duplicated the abridged plan in order to create their own set of architectural plans, and that they further duplicated and distributed such infringing plans. Jones further claims that defendants' duplication and use of these plans in their construction of houses within a subdivision situated less than two miles from Grosse Pines where plaintiff was constructing and selling his houses, constitutes a violation of the Copyright Act. Jones seeks damages arising out of defendants' infringement, costs and attorney fees, and an injunction prohibiting future infringement.

As drawings of a "technical character", architectural drawings are recognized as protected by the copyright laws. 17 U.S.C. § 5(i). Imperial Homes Corp. v. LaMont, 458 F.2d 895 (5th Cir.1972). Basically, two elements are necessary for a plaintiff to prevail in an action for infringement: ownership of a valid copyright by the plaintiff and copying of it by the defendants. Wickham v. Knoxville International Energy Exposition, Inc., 555 F.Supp. 154 (N.D.Tenn.1983), aff'd, 739 F.2d 1094 (6th Cir.1984). In order to prove that the work was copied, plaintiff must show that the defendants had access to the plaintiffs work and that there is substantial similarity between the copyrighted work and the infringing work. 3 Nimmer, The Law of Copyright, 13.02. Substantial similarity does not require "identity". Sufficient similarity is found where the work is recognizable by the ordinary observer as having been taken from the copyrighted source. The regulations of the copyright office include an architect's blueprint as a work registerable within this class. 37 C.F.R. § 202.12(a). The Herman Frankel Organization v. Tegman, et al., 367 F.Supp. 1051 (E.D.Mich.1973).

Having weighed the testimony and reviewed the exhibits presented at trial, this court finds that the elements necessary for a successful copyright infringement claim are present in this case. Jones has complied with the registration requirements of the Copyright Act. Based upon documentation, Robert Jones' testimony and lack of any substantial evidence to the contrary, the copyrights are valid. Moreover, it is clear that Jones has taken significant steps to protect the integrity of its floor plans, e.g. posting notices in its model houses to the effect that its floor plans are subject to copyright, requiring potential customers who receive a copy of the abridged floor plans and customers who are provided with a complete set of architectural plans to acknowledge plaintiff's copyrights in a signed statement.

The court also finds based on all the facts that all defendants had access to Jones' copyrighted floor plans. Jones and Nino were building houses within the same neighborhoods and subdivisions. At the time Jones was developing Grosse Pines and building its Aspen model, Nino was building houses less than two miles away in Quail Ridge. Model houses were open to the public and frequently potential customers visited consecutively the neighboring subdivisions. Further, the striking similarity of these plans alone support a finding of access.

The record indicates Deibele-Ginter was hired by Nino to provide architectural services during this period. In early 1983 Deibele-Ginter initiated plans for a model Nino referred to as the "Cambridge". The plans ultimately rendered by Deibele-Ginter were for a house identified as the "Riverside." Credible testimony established that after Nino had commissioned plans for a new model, but before construction had begun, Ginter showed Deibele a floor plan included in a brochure which Michele Lochirco had given Ginter with instructions to copy for use by Nino Homes. The court finds that plaintiffs exhibit 10 found in the Deibele-Ginter file is a copy of plaintiff's plans used by Deibele-Ginter and provided to Ginter by Michele Lochirco.

It is readily apparent that the plan Lochirco supplied to Ginter was a photocopy of the abridged Aspen floor plan from which Jones' identification and copyright notice had been obviously deleted. Indeed, the blank space, where Jones' identification had appeared on its brochure, would have signaled to any observer, let alone a skilled professional, that identification had been deliberately obscured. Plaintiff's exhibits 76 and 77 are tracings of the Riverside plan, blueprint size, and clearly evidence copying by defendants of the Aspen plans. The principals of both Nino and Deibele-Ginter were experienced in their respective professions. The court finds that they were on notice in this fact situation that the photocopy was made from identifiable copyrighted material.

Deibele admitted having copied 80% of the Aspen plan in rendering drawings for the Riverside. He maintains that he personally was unaware that the material was subject to copyright protection. Nevertheless, it was established that his partner Ginter was well aware of the questionable source of the Riverside concept. Ginter's knowledge, while he acted in his capacity as a partner in Deibele-Ginter, must be attributed to the partnership. M.C.L.A. § 449.9; see Grosberg v. Michigan National Bank-Oakland, 420 Mich. 707, 362 N.W.2d 715 (1984). Further, Deibele testified he worked with the drawings, did some lettering and modifications. Unfortunately, Lochirco, who attempted to negate his role in all of this, was not a credible witness. The record is replete with his conflicting testimony.

The record supports a finding that Deibele-Ginter was aware of Nino's intention to build multiple houses using the Riverside plans. Deibele-Ginter provided multiple sets of the Riverside plans to Nino in March, 1983. Deibele prepared plans for a slightly smaller version of the Riverside even after Ginter's death.

Robert Jones first learned of Nino's duplication of the Aspen in early June, 1983, when it was reported to him by a potential customer. He subsequently reviewed the building permit issued to Nino by Rochester Hills Township and recognized the plans filed with the township by Nino as an exact copy of his plans for the Aspen. Robert Jones then registered the complete plans and abridged plans on June 22, 1983, and June 28, 1983, respectively. Immediately thereafter he sent a letter to Nino demanding that construction of the Riverside model cease. Nino responded to Jones' letter with a general denial. Jones then commenced suit on July 25, 1983, seeking a preliminary injunction prohibiting Nino from constructing the Riverside model from the duplicated plans.

Settlement

The parties were encouraged by the Honorable Ralph Guy, from whose docket this matter was reassigned to this court, to settle their dispute. On August 10, 1983, a purported agreement was reached between Jones and Nino which required Nino to make specific alterations in its existing Riverside model and to modify its plans for construction of additional Riversides. The proposed alterations were documented in a set of drawings which were approved and signed by both Robert Jones and Michele Lochirco.

Defendant Nino Homes maintains that all of the modifications indicated in the drawings were implemented and that liability is precluded by the existence of a binding settlement agreement. Robert Jones has testified that he did not sign a formal settlement agreement because he was not convinced of Michele Lochirco's truthfulness. This court recognizes ...