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Zalewski v. Cicero Builder Dev. Inc.

United States Court of Appeals, Second Circuit

June 5, 2014

JAMES E. ZALEWSKI, DRAFTICS, LTD., Plaintiffs-Appellants,
v.
CICERO BUILDER DEV., INC., LUIGI CICERO, T.P. BUILDERS, INC., THOMAS PAONESSA, CILLIS BUILDERS, INC., THEODORE CILLIS, III, DERAVEN DESIGN & DRAFTING, ROXANNE K. HELLER, V. S. SOFIA ENGINEERING, SOFIA ENGINEERING, PLLC, VINCENZO S. SOFIA, Defendants-Appellees. [*]

Argued January 15, 2014.

Page 96

[Copyrighted Material Omitted]

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Appeal from orders and judgments of the United States District Court for the Northern District of New York (Sharpe, Judge). Plaintiff alleged copyright infringement and violations of the Digital Millennium Copyright Act against numerous Defendants involved in the construction and sale of houses built with architectural plans allegedly copied from Plaintiff's designs. The district court dismissed Plaintiff's claims against some Defendants, granted summary judgment in favor of the remaining Defendants, and granted attorney's fees to two Defendants for costs incurred defending against Plaintiff's first and second amended complaint. For the reasons stated below, the orders and judgments of the district court are AFFIRMED in part, and VACATED and REMANDED in part.

LEE PALMATEER, Lee Palmateer Law Office LLC, Albany, NY, for Plaintiffs-Appellants.

Paul C. Rapp, Monterey, MA, for Defendants-Appellees Cicero Builder Dev., Inc. and Luigi Cicero.

AUTONDRIA MINOR (Arlen L. Olsen, on the brief), Schmeiser Olsen & Watts LLP, Latham, NY, for Defendants-Appellees T.P. Builders, Inc., and Thomas Paonessa.

GEORGE J. SZARY, DeGraff, Foy & Kunz, Albany, NY, for Defendants-Appellees Cillis Builders, Inc., and Theodore Cillis, III.

ANNETTE I. KAHLER, (Susan E. Farley, on the brief), Heslin Rothenberg Farley & Mesiti, Albany, NY, for Defendants-Appellees DeRaven Design & Drafting and Roxanne K. Heller.

KEVIN R. VAN DUSER, Sugarman Law Firm LLP, Syracuse, NY, for Defendants-Appellees V.S. Sofia Engineering, Sofia Engineering, PLLC, and Vincenzo S. Sofia.

Before: KATZMANN, Chief Judge, WESLEY and LOHIER, Circuit Judges.

OPINION

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Wesley, Circuit Judge:

This case calls on us to explore the limits of copyright protection for architectural works. Plaintiffs-Appellants are James Zalewski, an architect, and Draftics, Ltd., the company through which he does business (collectively " Zalewski" or " Plaintiff" ). Zalewski asserts that he created and then licensed numerous designs for colonial homes to two construction companies.[1] He alleges that these companies and their contractors infringed his copyright in these designs by using them in ways the licenses did not permit and after the licenses had expired. Zalewski also asserts that Defendants' actions violated the Digital Millennium Copyright Act (" DMCA" ). Defendants principally contend that their designs do not copy the protected elements of Plaintiff's designs.

The district court dismissed portions of Plaintiff's complaint and granted summary judgment to Defendants on the remaining claims. The court also granted two Defendants' motions for attorney's fees. Plaintiff now challenges the dismissal of his complaint, the grant of summary judgment to Defendants, the denial of summary judgment to him, and the award of attorney's fees. We AFFIRM the district court, in part, holding that (1) any copying of Plaintiff's designs extended only to unprotected elements of his works, and (2) Plaintiff failed to plead a violation of the DMCA. We also VACATE, in part, holding that the district court applied the incorrect legal standard in awarding attorney's fees, and REMAND for the district court to apply the correct standard.

BACKGROUND

In the 1990s, Plaintiff James Zalewski was self-employed as an architect doing business through the firm Draftics, Ltd. During this period, he granted Defendants T.P. Builders (" T.P." )[2] and Cillis Builders (" Cillis" )[3] licenses to use several colonial home designs he had created. According to Zalewski, after the licenses expired,

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T.P. hired Defendant V.S. Sofia Engineering (" Sofia" )[4] and Defendant DeRaven Design & Drafting (" DeRaven" )[5] and Cillis hired DeRaven to customize his designs for their customers and continued marketing his designs, or customized versions thereof, without his consent. Defendant Cicero Builders (" Cicero" )[6] built two houses using DeRaven designs that were allegedly based on Plaintiff's originals.

Zalewski filed the first of these now consolidated actions in July 2010 in the United States District Court for the Northern District of New York, alleging that Defendants infringed the copyright in his original designs. Zalewski asserts that, in building the homes and customizing the designs, Defendants copied the overall size, shape, and silhouette of his designs as well as the placement of rooms, windows, doors, closets, stairs, and other architectural features. In addition to his copyright infringement claims, Zalewski asserts causes of action under the DMCA, which prohibits, among other things, " intentionally remov[ing] or alter[ing] any copyright management information." 17 U.S.C. § 1202(b).

In his original complaint, Zalewski named as defendants the instant Appellees, along with numerous other defendants including other builders, engineers, architects, real estate agents, and owners of the purportedly infringing homes. Then, between September and December 2010, Zalewski voluntarily dismissed the vast majority of these defendants, and in October 2010, he filed a second amended complaint, naming only the instant Defendants.[7] The district court dismissed this complaint in August 2011 but granted leave to file a Third Amended Complaint -- the operative complaint.

Following this final complaint, Defendants filed a number of motions to dismiss and motions for summary judgment, inter alia, on the ground that the designs they employed or created lacked substantial similarity with Zalewski's. Zalewski cross-moved for summary judgment. Over the next few months the district court sorted through the motions. After allowing some discovery, the court granted judgment to all remaining defendants and denied Zalewski's cross-motion for summary judgment. Still, the court permitted Zalewski to file a fourth amended complaint to more clearly state his DMCA claims. Zalewski passed on the offer and the district court entered final judgment in July 2012.

Finally, in November 2012, the court granted a motion by T.P. and Cicero for expenses and attorney's fees incurred defending against the first three complaints. Zalewski now challenges the partial dismissal of his complaint, the grant of summary judgment in favor of Defendants, the ...


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