The opinion of the court was delivered by: Judge Conaboy
Here we consider whether summary judgment is appropriate on Plaintiff's Copyright Infringement claim against Defendants Glen Oak, Louis Shapiro and MOS Design, Inc., Count Two of his Complaint. (Doc. 1 at 13.) This is the only claim remaining in the three summary judgment motions pending before the Court: 1) Motion of Plaintiff, John Gianacopoulos, R.A., for Partial Summary Judgment (Doc. 44-1); 2) Defendant Mos Design Inc.'S Motion for Summary Judgment (Doc. 42-1); and 3) Defendants', Glen Oak Country Club's and Louis Shapiro's Motion for Summary Judgment (Doc. 45). In a Memorandum and Order dated December 12, 2006, the Court denied the parties' summary judgment motions except as to the copyright claim. (Doc. 83.) The Court held Oral Argument on the copyright claim on January 16, 2007. Following a site inspection on January 22, 2007, the Court allowed the parties to file supplemental briefs on or before February 1, 2007.
Because the background of this case was set out in our previous summary judgment Memorandum (Doc. 83 at 2-5.), we will highlight only some facts pertinent to the copyright infringement claim.
The parties do not dispute that Plaintiff gave Defendant Glen Oak some drawings and exterior sketches of a proposed addition/renovation to the Glen Oak Country Club clubhouse/locker room. Six drawings were reduced to CAD format, and Defendant Glen Oak gave a disk containing the six drawings to Defendant MOS after Glen Oak awarded MOS a contract for the addition/renovation.*fn1 The six drawings are 1) a Floor Plan with a total area of 11,401 square feet for Phases I and II; 2) a Floor Plan with a total area of 11,142 square feet for Phases I and II; 3) a Floor Plan with a total area of 8,977 square feet for Phase I; 4) a Floor Plan with a total area of 8,718 square feet for Phase I; 5) a Site Plan for Phase II; and 6) a Site Plan for Phase I. (See, e.g., Doc. 46, Ex. Z.)
The record also reveals that Plaintiff obtained copyright protection on certain documents relating to the project. (Doc. 46 Ex. WW.) All documents are dated October 11, 2005. (Id.) Copyright number VAu684-177, identified as a technical drawing of the Glen Oak Country Club Locker Facility Addition - First Floor Plan, is a Floor Plan with an area of 9,643 square feet. Copyright number VAu684-178, identified as a technical drawing of the Glen Oak Country Club Locker Facility Addition - Exterior Views, has three attached exterior sketches showing a) the proposed facility from a distance which shows the entire building; b) a closer view of the locker room addition; and c) a closer view of the proposed new entry. (Id.) Copyright number VAu684-179, identified as a technical drawing of the Glen Oak Country Club Locker Facility Addition - Site Plan, is a Site Plan of the property which includes topographical features around approximately two-thirds of the building.
Relevant specific features of the drawings and sketches will be discussed below.
1. Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997)(citing Fed. R. Civ. P. 56(c)). The summary judgment standard does not change when the parties have filed cross-motions for summary judgment. Applemans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under the law applicable to the case. Id. at 248; Levendos v. Stern Entertainment Inc., 860 F.2d 1227, 1233 (3d Cir. 1988). An issue of material fact is "genuine" if the evidence is such that a reasonable jury might return a verdict for the non-moving party. Anderson, 477 U.S. at 257. In determining whether a genuine issue of fact exists, a court must resolve all factual doubts and draw all reasonable inferences in favor of the nonmoving party. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation omitted).
The initial burden is on the moving party to show an absence of a genuine issue of material fact. The moving party may meet this burden by "pointing out to the district court  that there is an absence of evidence to support the nonmoving party's case when the nonmoving party bears the ultimate burden of proof." Celotex, 477 U.S. at 325. The non-moving party may not rest on the bare allegations contained in his or her pleadings, but is required by Federal Rule of Civil Procedure 56(e) to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When Rule 56(e) shifts the burden of proof to the non-moving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial. Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987).
"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of evidence." Anderson, 477 U.S. at 255. Therefore, when evidentiary facts are in dispute, when the credibility of witnesses may be in issue, or when conflicting evidence must be weighed, a full trial is usually necessary.
2. Copyright Infringement
The parties have expressed no disagreement in the law applicable to the copyright infringement claim before the Court.
A copyright automatically exists the moment the work is created: registration is a separate matter and is required before a copyright infringement action can be brought in federal court. See 17 U.S.C. §§ 408, 411 and 37 C.F.R. § 202.
In pertinent part, Section 106 of the Copyright Act, 17 U.S.C. § 106, provides that the owner of the copyright has "the exclusive rights to do and to authorize the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental , lease, or lending[.]" 17 U.S.C. § 106(1)-(3). Section 501(a) of the Act provides that anyone who violates these rights is an infringer of the copyright. "The Copyright Act grants the owner of a copyright five fundamental rights - the exclusive rights of reproduction, adaptation, distribution, performance, and display." Michael A. Epstein, Epstein on Intellectual Property 12-13 (5th ed. 2006).
Stated in element form, the two elements necessary to state a claim for copyright infringement are: 1) ownership of a valid copyright, and 2) copying of constituent elements of the work that are original. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); Dam Things from Denmark v. Russ Berrie & Co. Inc., 290 F.3d 548, 561 (3d Cir. 2002) (citation omitted).
Inferential proof of the second element is allowed. The requirements for inferential proof are: 1) the defendant had access to the protected work; and 2) the two works are "substantially similar." Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 291 (3d Cir. 1991); Bright v. Friedenberg, 1999 WL 89716, at *1 (1999). Access is proven when a plaintiff shows the defendant had an opportunity to view or copy the plaintiff's work. See, e.g., Murray Hill Publ'ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 316 (6th Cir. 2004). Access may not be inferred through mere speculation or conjecture, but evidence that a third party with whom both the plaintiff and defendant were concurrently dealing is sufficient to establish access. Id. (citations omitted).
The "substantial similarity" element is determined by a comparison of the works. CSM Investors v. Everest Development, Ltd., 840 F. Supp. 1304, 1311 (D. Minn. 1994). The "substantial similarity" inquiry has two components, sometimes described as "extrinsic" and "intrinsic." See, e.g., Dam Things, 290 F. 3d at 562. "The court first analyzes the similarities of the ideas extrinsically by focusing on the objective similarities in the details of the works." CSM Investors at 1311. In Dam Things, the Third Circuit Court of Appeals explained the two-step test for determining substantial similarity:
First, the opinions of experts may be called upon in determining whether there is sufficient similarity between the works as to conclude that the alleged infringer "copied" the work. Second, the fact-finder is to determine whether a "lay-observer" would believe that the copying was of protectible aspects of the copyrighted work. Dam Things, 290 F.3d at 562 (internal citations omitted). The court noted that "[t]his test makes clear it is only after actual copying is established that one claiming infringement then proceeds to demonstrate that the copying was ...