Keyfer & Assocs. Inc. v. Brock

Full title: KEYFER & ASSOCIATES INC., Plaintiff, v. Steven BROCK, Brock Built, LLC…

Court: United States District Court, N.D. Georgia, Atlanta Division

Date published: Mar 29, 2010

CIVIL ACTION NO. 1:07-CV-2297-CC (N.D. Ga. Mar. 29, 2010)

Opinion

CIVIL ACTION NO. 1:07-CV-2297-CC

03-29-2010

KEYFER & ASSOCIATES INC., Plaintiff, v. Steven BROCK, Brock Built, LLC, Brock Construction Company and American Gables, Inc., Defendants.

Attorneys and Law Firms Richard J. Storrs, Mills Paskert Divers, Atlanta, GA, for Plaintiff. Joseph C. Sharp, William Bradley Hill, Jr., Polsinelli, P.C., Justin M. Scott, Buckley Law Firm, LLC, Yonette Sam-Buchanan, U.S. Attorneys Office, Atlanta, GA, for Defendants.

CLARENCE COOPER, SENIOR UNITED STATES DISTRICT JUDGE

Attorneys and Law Firms

Richard J. Storrs, Mills Paskert Divers, Atlanta, GA, for Plaintiff. Joseph C. Sharp, William Bradley Hill, Jr., Polsinelli, P.C., Justin M. Scott, Buckley Law Firm, LLC, Yonette Sam-Buchanan, U.S. Attorneys Office, Atlanta, GA, for Defendants. OPINION AND ORDER CLARENCE COOPER, SENIOR UNITED STATES DISTRICT JUDGE *1 This copyright infringement action is before the Court on Plaintiff's Amended Motion for Partial Summary Judgment [Doc. No. 97] and the Brock Defendants' Revised Motion for Summary Judgment [Doc. No. 100].¹ For the reasons stated herein, the Court DENIES Plaintiff's Amended Motion for Partial Summary Judgment [Doc. No. 97] and GRANTS in part and DENIES in part the Brock Defendants' Revised Motion for Summary Judgment [Doc. No. 100]. FACTS ²

1 Also pending in this case are Plaintiff's Motion for Partial Summary Judgment [Doc. No. 88], the Brock Defendants' Motion for Summary Judgment [Doc. No. 89], and Plaintiff's Motion for Leave to File a Sur-reply to the Brock Defendants' Reply Brief [Doc. No. 110]. Plaintiff's Motion for Partial Summary Judgment [Doc. No. 88] and the Brock Defendants' Motion for Summary Judgment [Doc. No. 89] have been rendered moot by the filing of Plaintiff's Amended Motion for Partial Summary Judgment [Doc. No. 97] and the Brock Defendants' Revised Motion for Summary Judgment [Doc. No. 100], respectively. With respect to Plaintiff's Motion for Leave to File a Sur-reply to the Brock Defendants' Reply Brief [Doc. No. 110], the Brock Defendants' reply to the motion is essentially a substantive response to Plaintiffs' proposed sur-reply. Insofar as the Court has read and considered both filings, the Court will grant Plaintiffs' Motion for Leave to File a Sur-reply to the Brock Defendants' Reply Brief [Doc. No. 110].

2 The Court has applied Local Rule 56.1B. in determining the undisputed facts that should be set forth in this Order and Opinion.

I.

The Parties Plaintiff Keyfer & Associates Inc. ("Keyfer") is an architectural firm in the business of designing residential and commercial construction projects. Since its formation, Keyfer has been owned solely by Ara Keyfer. Emile Picard, an architect, is a former employee of Keyfer. From 1998 or 1999 until around February 2005, Mr. Picard was employed by Keyfer. Defendant Brock Built, LLC ("Brock Built") is primarily in the business of building single-family homes. Defendant Steven Brock is the president, CEO and owner of Brock Built. Defendant Brock Construction Company ("BCC") was primarily in the business of building single-family homes. Keyfer has had a business relationship with Mr. Brock since 1999, and until Spring 2005, was providing architectural services to the Brock Defendants on a continuous basis. Keyfer provided services to the Brock Defendants related to developments known as "Parkview at Bolton Road," "Dupont Commons" and "West Highlands." During his employment with Keyfer, Mr. Picard was the Brock Defendants' primary contact at Keyfer. In or around Spring 2005, Mr. Keyfer wanted to limit his architectural work and decided to semi-retire. In or around April 2005, he moved Keyfer's operations to his home. Emile Picard left Keyfer when Mr. Keyfer decided to retire. However, Mr. Keyfer and Mr. Picard wanted Mr. Picard to be able to continue on with Keyfer's ongoing projects as a new entity, Picard Associates, Inc. ("Picard Associates"). Accordingly, Picard Associates and Keyfer entered into an agreement dated July 29, 2005 (but signed on December 29, 2005) under which Picard Associates agreed to purchase certain assets of Keyfer (the "July 29, 2005 Agreement"). The July 29, 2005 Agreement allowed Picard Associates to use certain work product of Keyfer. *2 Picard Associates has provided services to the Brock Defendants on an ongoing basis since its formation. Specifically, Picard Associates has provided services to the Brock Defendants related to developments known as "Dupont Commons" and "West Highlands." Over the course of the relationship between the Brock Defendants and Keyfer, the Brock Defendants paid Keyfer hundreds of thousands of dollars. Over the course of the relationship between the Brock Defendants and Picard Associates, the Brock Defendants have paid Picard Associates hundreds of thousands of dollars.

II.

Negotiations Between the Parties Prior to the Parkview Contract On August 31, 2001, Keyfer offered to create ten residential designs and grant BCC a license to build the ten residential designs (the "August 31, 2001 Proposal"). The August 31, 2001 Proposal requested a fee of $40,000.00 for a license to construct ten residential designs that could be re-built for a re-use fee between $200.00 and $500.00 per home. The August 31, 2001 Proposal does not state the designs are "specifically intended" for any project. The August 31, 2001 Proposal was rejected by BCC.

III.

The Parkview Contract On January 30, 2002, Mr. Picard, on behalf of Keyfer, and Mr. Brock, on behalf of BCC, entered into a contract for architectural services entitled "PROPOSAL FOR ARCHITECTURAL SERVICES: HOUSE DESIGNS," which Mr. Picard drafted. Thereafter, the contract was amended. (The January 30, 2002 Contract and Amendment will be referred to herein as the "Parkview Contract.") On January 30, 2002, Mr. Brock, on behalf of BCC, paid Keyfer a deposit of $5,000.00 related to the Parkview Contract, although the Parkview Contract did not specifically provide for the payment of such a deposit. Pursuant to the Parkview Contract, Keyfer, the "Architect," agreed to provide four (4) single-family home designs and two (2) town home designs to the "Owner," BCC, which were intended for use at the "Parkview at Bolton Road" development ("Parkview"). Section I.(A.) of the Parkview Contract, entitled "Scope of the Project," under the heading "Parkview at Bolton Road" states, in part, "All residential designs provided by the Architect are intended for the use for this specific project." (Parkview Contract attached as Ex. A to the Brock Defs.' Revised Mem. in Supp. of Their Revised Mot. for Summ. J.) The Parkview Contract required BCC to pay a basic service fee of $8,500.00, which included the use of each plan to construct one home. Section I. of the Parkview Contract also states, in part, "Residential designs provided by the Architect specifically for this project as described in (A.) above may be re-built for a re-use fee of $375.00 per home paid to the Architect...." (Id.) The Brock Defendants intended to use the house designs developed pursuant to the Parkview Contract both inside and outside Parkview. Mr. Brock told Mr. Picard, when Mr. Picard was an employee of Keyfer, that the Brock Defendants intended to use and re-use the house designs in developments other than Parkview. Mr. Picard told Mr. Brock, when Mr. Picard was an employee of Keyfer, that he wanted the Brock Defendants to use the house designs both inside and outside Parkview so that Keyfer could obtain additional fees.³ *3 Mr. Picard and Keyfer had limited experience in preparing "Craftsman" style, narrow-lot, single-family house designs, the type of designs that the Brock Defendants wanted prepared pursuant to the Parkview Contract. Mr. Keyfer conceded, however, that "Craftsman" style, narrow-lot, single-family homes were "not a novel idea." (Deposition of Ara Keyfer "Keyfer Dep." at 46:19-24.) To show Mr. Picard the type and style of residences the Brock Defendants wanted, Mr. Brock brought Mr. Picard to a development known as "Adams Crossing," which had been previously constructed by the Brock Defendants. Mr. Brock provided Keyfer with the home designs used to construct the Adams Crossing Craftsman, narrow-lot, single-family homes. Mr. Brock provided Keyfer with the specifications that the Brock Defendants required for the home designs, including the Brock Defendants' requirements that the homes must have three bedrooms and two bathrooms, they must be Craftsman style and must be narrow-lot, single-family homes. Narrow lots imposed spatial limitations on the single-family home designs, including room placement within the homes. Mr. Brock met with Mr. Picard on numerous occasions to discuss the preparation of the home designs. At these meetings, Mr. Brock was intimately involved in and provided significant input regarding the designs, including providing sketches to Mr. Picard. When drafts of the home designs were evaluated in these meetings, representatives of the Brock Defendants made changes, revisions, and modifications to the drafts. In addition to Mr. Brock, Mike Benz, an employee of the Brock Defendants, and Joanne Zuraw, a real estate agent who worked with the Brock Defendants, had input into the home designs. Benjamin Robbins, an intern architect employed by Keyfer, also had input into the preparation of the single-family home designs and was present at the meetings the Brock Defendants had with Mr. Picard regarding the home designs. The Brock Defendants' specifications, changes, revisions, and modifications were incorporated into the final versions of the single-family home designs. Mr. Brock had final approval over the single-family home designs. On or around September 27, 2002, Keyfer produced final versions of four (4) narrow-lot, single-family home designs pursuant to the Parkview Contract. One of the designs is entitled "Parkview At Bolton Road City of Atlanta, Georgia, House # 202 The Grover." (Keyfer refers to this design as the "Grover," whereas the Brock Defendants refer to this design as the "Grover 202." For ease of reference, the Court will refer to this design herein as the "Grover.") Exhibit H-17 to Keyfer's Motion for Partial Summary Judgment is a "Grover" design and identically depicts the "Grover" plan given to the Brock Defendants pursuant to the Parkview Contract.⁴ On "Grover" plans provided to the Brock Defendants during and throughout the development of the "Grover," there is language, in small font at the top right hand corner of the page, that reads, "This license entitles the licensee to construct only one home from this plan unless otherwise noted. The license is non-transferable...."⁵ (Affidavit of Ara Keyfer "Keyfer Aff." ¶ 19; Brock Dep. at 81:9-82:2; Ex. 6 to Brock Dep.) Moreover, the completed "Grover" plans provided to the Brock Defendants include language that reads:

You have purchased a non-exclusive, non-transferable license to use this plan to build one home. Unless otherwise noted below....

...

This set of documents may be used to construct homes on lot numbers 1, 16, 19, 22, 37, 41, and 44 only for Parkview at Bolton Road Atlanta, GA.

(Ex. H-17 to Keyfer's Motion for Partial Summary Judgment.) However, this identical language appears on the designs that Keyfer issued for construction of a house built by the Brock Defendants outside Parkview using the "Grover," which will be discussed in more detail below. At least some versions of the "Grover" design had a stamp declaring that the designs were protected by federal copyright, and Exhibit H-17, mentioned above, does include such a stamp. *4 Although the Parkview Contract was between Keyfer and BCC and Brock Built was not a named party to the Parkview Contract, Keyfer knew and intended that Brock Built would build houses based on the plans produced pursuant to the Parkview Contract. Almost all versions of the "Grover" design specified the "client" as "Brock Built, LLC," including the designs ultimately submitted by Keyfer to the U.S. Copyright Office. Further, as discussed below, Brock Built executed an indemnity agreement (the "Indemnity Agreement") in connection with the homes Brock Built constructed based on the plans furnished by Keyfer.

3 Keyfer contends that Mr. Brock's testimony regarding statements made to him by Mr. Picard is inadmissible hearsay, but the Court finds that the statements constitute admissions by a party-opponent and are admissible pursuant to Federal Rule of Evidence 801(d)(2). The Brock Defendants have satisfied their burden of establishing that the testimony of Mr. Brock is not hearsay. See United States v. Kennard, 472 F.3d 851, 855-56 (11th Cir. 2006).

4 Exhibit H-17 actually appears to have been furnished to Roya Custom Homes, as Roya Custom Homes is the "client" listed on the plans. However, the Court understands Keyfer's position to be that the plans given to the Brock Defendants were otherwise identical.

5 The Brock Defendants maintain this language did not appear on all of the "Grover" plans provided to them. (Deposition of Steven Brock "Brock Dep." at 90:1-92:6.)

IV.

Parkview The Brock Defendants constructed Craftsman style, narrow-lot, single-family homes at Parkview. Mr. Picard and Keyfer did the "master plan" for Parkview, which included assigning specific plans to specific lots. Keyfer did not have any involvement in the construction of the houses at Parkview. The Brock Defendants sold certain lots at Parkview to Roya Custom Homes, Inc. ("Roya"). Roya built Craftsman style, narrow-lot, single-family homes at Parkview, as dictated by the Parkview master plan, and used certain of the plans related to the Parkview Contract, including the "Grover." Hamid Daftarian, Roya's president, testified that the home designs produced pursuant to the Parkview Contract, including the "Grover," were non-complex, relatively simple designs. Mr. Daftarian testified that he did not see anything about the "Grover" plan that was original, unique, or one of a kind. Keyfer representatives visited Parkview on multiple occasions, both during and after construction of the single-family homes. Until the filing of this lawsuit, neither Keyfer nor Mr. Picard ever objected to Roya's use of the home designs at Parkview. When constructing homes based on the "Grover" at Parkview, the Brock Defendants made significant structural changes to the "Grover."⁶ Keyfer knew that the Brock Defendants were making changes to the "Grover" when constructing homes based thereon. Accordingly, Keyfer asked Brock Built to sign an Indemnity Agreement drafted by Keyfer's attorney, which provided that Keyfer was not liable for damages resulting from changes made by Brock Built to plans produced by Keyfer. The Indemnity Agreement, signed by Mr. Brock on behalf of Brock Built, provides:

Brock Built, LLC assumes liability for any damages, [sic] arising out of its Work in which it made changes to the plans, drawings or diagrams prepared by Keyfer & Associates, Inc. Brock Built, LLC shall to the fullest extent permitted by law defend, indemnify and hold harmless Keyfer & Associates, Inc. and its Insurer, if any, their respective officers, agents, employees and indemnities, from and against any claims, losses, suits, damages, legal and otherwise, arising out of or in any way connected with the Work in which Brock Built, LLC made changes to the plans, drawings or diagrams prepared by Keyfer & Associates, Inc., and to the fullest extent permitted by law.

(Indemnity Agreement attached as Ex. C to the Brock Defs.' Revised Mem. in Supp. of Their Revised Mot. for Summ. J.) *5 Keyfer invoiced the Brock Defendants for "Re-use fees" of $375.00 for the houses built using the "Grover" at Parkview, and Brock Built paid such fees.

6 Keyfer denies this statement of fact, arguing that nothing in Mr. Keyfer's deposition testimony suggests that any of the changes the Brock Defendants made to the "Grover" during construction were substantial. However, Keyfer has wholly ignored the Declaration of Steven Brock, which the Brock Defendants also cite to support this statement of fact. Keyfer also refers the Court to the plans Brock Built submitted for permitting and approval with the City of Atlanta Building Department. However, almost all of these plans are for homes that were built outside of Parkview. Accordingly, most of the plans are largely irrelevant to this statement of fact, which is focused on the homes constructed at Parkview based on the "Grover." Having reviewed the evidence relied on by both of the parties, the Court finds that this statement of fact is due to be deemed admitted.

V.

The Eastlake Development The Brock Defendants constructed a home based on the "Grover" at another development outside of Parkview known as "Eastlake." The address of the home is 96 East Lake Terrace SE, Atlanta, Georgia 30317 (the "Eastlake House"). On September 30, 2002, at the time it invoiced the Brock Defendants for "Re-use fees" related to Parkview, Keyfer also invoiced the Brock Defendants a $375.00 "Re-use fee" for the use of the "Grover" outside of Parkview at Eastlake.⁷ Brock Built paid this fee.

7 Keyfer maintains that it allowed the Brock Defendants to build this house using the "Grover" design as a one-time courtesy.

VI.

The Hybrid Grover The "Grover" was used by Roya in drafting a home design that Keyfer refers to as the "Hybrid Grover" and that the Brock Defendants refer to as the "Grover D/U." (For ease of reference, the Court will refer to the design as the "Hybrid Grover.") Roya obtained the "Grover" from Brock Built, and Brock Built was aware that Roya drafted the "Hybrid Grover." Keyfer did not participate in the drafting of the "Hybrid Grover." The parties disagree regarding the substantiality of the similarities and differences between the "Grover" and the "Hybrid Grover."

VII.

The "Gregory A" The Brock Defendants employed Defendant American Gables⁸ to create a home design known as the "Gregory A." The Brock Defendants provided American Gables with either the "Hybrid Grover" or the "Grover" to use as a reference point, along with other designs. The Brock Defendants do not dispute that American Gables had access to the "Grover." The parties disagree regarding the substantiality of the similarities and differences between the "Grover" and the "Gregory A."

8 American Gables was dismissed with prejudice from the action on August 6, 2008.

VIII.

The "Gregory B" The Brock Defendants also employed American Gables to create a home design known as the "Gregory B." The Brock Defendants provided American Gables with either the "Hybrid Grover" or the "Grover" to use as a reference point, along with other designs. The Brock Defendants do not dispute that American Gables had access to the "Grover." The parties disagree regarding the substantiality of the similarities and differences between the "Grover" and the "Gregory B."

IX.

The Dupont Commons Development In November 2002, Keyfer contracted with the Brock Defendants to design the clubhouse at Dupont Commons, to provide review of the construction of the clubhouse, and to design town homes at Dupont Commons.⁹ The Brock Defendants constructed homes at Dupont Commons. Mr. Keyfer visited Dupont Commons, but the homes were "just sticks ... [and] not complete by any means" when he saw them. (Keyfer Dep. at 90:11-16.) Mr. Brock told Mr. Picard that the Brock Defendants were building Keyfer's plans at Dupont Commons.¹⁰ Mr. Picard visited the Dupont Commons development dozens of times during the project's construction. Many of the Brock Defendants' meetings with Mr. Picard at Dupont Commons took place at the Dupont Commons clubhouse. Certain of the allegedly infringing houses are between 50 and 60 yards from the Dupont Commons clubhouse and are in plain sight.¹¹ *6 The Brock Defendants sold certain lots in Dupont Commons to Roya. The Brock Defendants provided Roya plans that the Brock Defendants had approved for use at Dupont Commons, including the "Grover," to use in constructing houses on the lots Roya purchased. The Brock Defendants wanted Roya to use approved Craftsman style, single-family home designs on their lots in Dupont Commons to "protect the integrity" of Dupont Commons. (Brock Dep. at 97:24-25.) Roya made changes to the plans the Brock Defendants provided, including the "Grover." Some of the changes Roya made to the "Grover" were required by the City of Atlanta because the architect had not provided sufficient detail in the plans. Mr. Daftarian testified that the houses Roya built in Dupont Commons are right across the street from the Dupont Commons clubhouse and are physically in the line of sight from the clubhouse and that a house is recognizable by plan once the framing of the house is shaped. However, Mr. Daftarian was not certain how close a home built using the "Grover" design was to the clubhouse. Prior to the filing of this lawsuit, neither Keyfer nor Mr. Picard ever told Roya of any contention that Roya's use of the "Grover" infringed their copyright. In its Complaint, Keyfer alleges that Dupont Commons houses 1708 Barfield Run, 1732 Barfield Run, 1716 Carr Circle, 1624 Duncan Drive, 1666 Duncan Drive, 1604 Dupont Commons Drive, 1616 Dupont Commons Drive, 1534 Gilstrap Lane, 1576 Gilstrap Lane, 1621 Gilstrap Lane, and 1633 Gilstrap Lane infringe copyrights it allegedly holds on the "Grover." Roya built 1576 Gilstrap Lane. The Brock Defendants built 1708 Barfield Run, 1732 Barfield Run, 1624 Duncan Drive, 1666 Duncan Drive, 1604 Dupont Commons Drive, 1621 Gilstrap Lane and 1633 Gilstrap Lane using either the "Gregory A" or "Gregory B" home designs. The Brock Defendants built 1716 Carr Circle using the "Hybrid Grover" home design and built 1534 Gilstrap using the "Grover" design.

9 The Brock Defendants also maintain that Keyfer contracted to design the master plan for Dupont Commons. However, the evidence cited by the Brock Defendants does not support that fact and Keyfer specifically denies that fact.

10 Based on the affidavit testimony of Mr. Keyfer, Keyfer maintains that the Brock Defendants did not make any requests to re-build the "Grover" outside of Parkview, except for the Eastlake House. (Keyfer Aff. ¶ 24.) Mr. Keyfer further attests that Keyfer never approved any other re-use of the "Grover" outside of Parkview. (Id.) Notwithstanding the foregoing, Mr. Keyfer's affidavit testimony does not directly refute Mr. Brock's deposition testimony that Mr. Brock told Mr. Picard that the Brock Defendants were building the "Grover" at Dupont Commons. Further, since Mr. Keyfer has not attested to having personal knowledge of any such discussions between Mr. Brock and Mr. Picard, Mr. Keyfer's affidavit testimony cannot be used to create a dispute as to whether these discussions occurred.

11 Keyfer attempts to dispute this fact by relying on the deposition testimony of Mr. Keyfer that no constructed homes were visible at the time he visited Dupont Commons. However, Keyfer has not cited to any evidence that actually disputes the stated fact. That Mr. Keyfer did not see the constructed homes has nothing to do with the distance of the constructed homes from the Dupont Commons clubhouse.

X.

The West Highlands Development In 2000 or 2001, Keyfer began working with the Brock Defendants in a development known as "West Highlands." Keyfer entered into contracts with the Brock Defendants related to West Highlands, pursuant to which Keyfer agreed to prepare the West Highlands master plan and architectural guidelines and to conduct architectural review of buildings constructed at West Highlands. Keyfer prepared a master plan for West Highlands. Keyfer met with the Brock Defendants on numerous occasions during the course of the West Highlands and Dupont Commons projects. The Brock Defendants paid Keyfer hundreds of thousands of dollars related to West Highlands. The Brock Defendants provided Keyfer and Mr. Picard with the design guidelines for Adams Crossing, which were used in drafting the architectural guidelines for West Highlands, including guidelines for single-family homes. Both Mr. Picard and Mr. Keyfer participated in presentations related to West Highlands in public meetings and meetings with the Atlanta Housing Authority. In its Complaint, Keyfer alleges that West Highlands houses 1769 Drew Drive, 1880 Perry Blvd., 963 Samples Lane, 1852 Stanfield Ave., and 965 West Highlands Drive infringe copyrights it allegedly holds on the "Grover." The Brock Defendants contend that they built 1769 Drew Drive, 963 Samples Lane, and 965 West Highlands using either the "Gregory A" or "Gregory B" homes designs, but Keyfer contends that the Brock Defendants used the plans created by Roya Custom Homes that were based on the "Grover." The Brock Defendants built 1880 Perry Blvd. and 1852 Stanfield Ave. using the "Grover" home design.

XI.

Record Identification of Houses at Issue The Brock Defendants do not dispute that they used the "Grover" to construct houses at the following addresses as set forth on Keyfer's Exhibit H and identified in the plans manually field with the Court as:

Exhibit H-1—1852 Stanfield Ave NW, Atlanta, GA 30318

Exhibit H-2—1880 Perry Blvd NW, Atlanta, GA 30318

Exhibit H-3—1534 Gilstrap Lane NW, Atlanta, GA 30318

Exhibit H-15—2145 Collins Dr NW, Atlanta, GA 30318 The Brock Defendants admit that all of these houses, except 2145 Collins Dr NW, were built by Brock Built outside of Parkview. Keyfer maintains that Brock Built constructed houses using the "Hybrid Grover" at the following addresses as set forth in Keyfer's Exhibit H and identified in the plans manually filed with the Court as:

*7 Exhibit H-4—1716 Carr Circle NW, Atlanta, GA 30318

Exhibit H-5—1769 Drew Drive, Atlanta, GA 30318 The Brock Defendants do not dispute that they built 1716 Carr Circle NW using the "Hybrid Grover" plan. However, the Brock Defendants do deny that 1769 Drew Drive was built using the "Hybrid Grover." While they concede that Keyfer's Exhibit H-5 shows the "Hybrid Grover" plan for 1769 Drew Drive, they maintain the house clearly was built using a "Gregory A" or "Gregory B" plan. Both houses were built outside of Parkview. Brock Built constructed houses using the "Gregory A" plan at the following addresses as set forth in Keyfer's Exhibit H and identified in the plans manually field with the Court as:

Exhibit H-6—1621 Gilstrap Lane NW, Atlanta, GA 30318

Exhibit H-7—963 Samples Lane NW, Atlanta, GA 30318

Exhibit H-8—1732 Barfield Run NW, Atlanta, GA 30318 All three of these houses were built outside of Parkview. Brock Built constructed houses using the "Gregory B" plan at the following addresses as set forth in Keyfer's Exhibit H and identified in the plans manually filed with the Court as:

Exhibit H-9—1604 Dupont Commons Drive NW, Atlanta, GA 30318

Exhibit H-10—1708 Barfield Run NW, Atlanta, GA 30318

Exhibit H-11—1666 Duncan Drive NW, Atlanta, GA 30318

Exhibit H-12—1633 Gilstrap Lane NW, Atlanta, GA 30318

Exhibit H-13—965 West Highlands Drive NW, Atlanta, GA 30318

Exhibit H-14—1624 Duncan Drive NW, Atlanta, GA 30318 All six of these houses were built outside of Parkview.

XII.

The Construction of Houses Using the "Grover" Plan When constructing houses based on the "Grover" plan, the Brock Defendants made significant structural changes to the "Grover." The Brock Defendants never "... built a Grover plan exactly like the plan, not once, not ever." (Brock Dep. at 110:1-2.) Examples of structural changes made by the Brock Defendants when building homes based on the "Grover" design included changes in: (1) the presence and/or style of a chimney; (2) column placement and spacing; (3) door placement; (4) window arrangement; (5) window size; (6) stair width and placement; (7) the presence of a "dormer" or window in the roof; (8) brackets and banding; (9) closets and the butler's pantry; and (10) porch style and placement.

XIII.

Invoices Mr. Keyfer testified that he reviewed Keyfer invoices, including invoices sent to the Brock Defendants. With the exception of the "Grover" used to build the Eastlake House, neither Keyfer nor Mr. Picard ever invoiced the Brock Defendants for the $375.00 "Re-use fees" for the allegedly infringing houses. Except for the $5,000.00 deposit that Brock Built paid Keyfer in connection with the Parkview Contract, Keyfer has never been paid by the Brock Defendants without first submitting an invoice. The Brock Defendants believed that Keyfer would invoice the Brock Defendants for any "Re-use fees" Keyfer thought were owed.

XIV.

The Formation of This Lawsuit Mr. Keyfer testified that in early 2005, prior to his semi-retirement, Mr. Picard approached Mr. Keyfer and told him that he suspected the Brock Defendants were using certain of Keyfer's designs. Mr. Keyfer testified that he responded by saying something similar to: "Well he's your client. What are you going to do about it?" Mr. Keyfer further testified that he "really didn't care at that time what was going on." (Keyfer Dep. at 63:5-64:12.) Mr. Keyfer also testified that Mr. Picard had called him regarding the alleged infringement prior to September 28, 2006, but Mr. Keyfer told Mr. Picard that "I don't have time to follow up on all this. If you want to do it then we'll talk about it." (Id. at 66:24-68:2.) *8 With the exception of the "Grover" used to build the Eastlake House, neither Keyfer nor Mr. Picard ever told Mr. Brock prior to filing this lawsuit that they believed Keyfer was owed "Re-use fees" for the homes listed in Keyfer's Complaint. Prior to the filing of the lawsuit, neither Keyfer nor Mr. Picard ever told Mr. Brock that they believed the homes listed in Keyfer's Complaint were infringing Keyfer's designs or requested that any of the Brock Defendants stop using any designs. With the exception of the "Grover" used to build the Eastlake House, no Keyfer employee or agent ever informed any employee or representative of the Brock Defendants prior to the filing of the lawsuit that Keyfer believed that it was owed "Re-use fees" for the homes listed in Keyfer's Complaint. Prior to the filing of this lawsuit, no Keyfer employee or agent ever informed any employee or representative of the Brock Defendants that Keyfer believed any of the Brock Defendants were infringing any copyright owned by Keyfer. In or around September 2006, Mr. Picard initiated discussions with Keyfer regarding a potential agreement under which Keyfer and Picard Associates would split the proceeds and costs of a lawsuit against the Brock Defendants. On October 5, 2006, Mr. Picard sent Mr. Keyfer an email that said that Keyfer and Mr. Picard would split the proceeds of a lawsuit against the Brock Defendants. On October 6, 2006, Mr. Picard sent Mr. Keyfer an email that stated, in part: "On relative another matter, I remember, at one point in time, Brock had made some structural modifications to one of the houses at Parkview. Over this concern, I recollect that Keyfer's attorney, Barry Lebowitz ... came up with a short agreement that was slightly modified by Brock, to indemnify Keyfer from any third party claims due to any modifications of the drawings." (Ex. 39 to Keyfer Dep.) On or about January 8, 2007, Keyfer entered into an agreement (the January 8, 2007 Agreement) with Picard Associates to split the proceeds and costs of a lawsuit against the Brock Defendants.¹² Mr. Keyfer testified that the January 8, 2007 Agreement whereby Keyfer and Picard Associates contracted to share in the proceeds and costs of a lawsuit against the Brock Defendants was "probably" Mr. Picard's idea. Mr. Keyfer testified that Keyfer would "probably not" have pursued this lawsuit against the Brock Defendants if Mr. Picard "was totally out of the picture." (Keyfer Dep. at 73:18-24.) Mr. Keyfer testified that he "totally" relied on Mr. Picard to do the research and footwork related to a potential claim against the Brock Defendants, that Keyfer did not undertake any research or footwork related to a potential claim against the Brock Defendants, and that Keyfer did not take any photographs or obtain any plans for the allegedly infringing houses. In May 2007, Mr. Picard and Keyfer applied for registration of a copyright on the "Grover" house design as a technical drawing. In connection with the registration application for the "Grover," Mr. Picard and Keyfer sent registration forms to the U.S. Copyright Office. The registration forms sent to the U.S. Copyright Office list Keyfer as the sole author and owner of the "Grover." The registration forms sent to the U.S. Copyright Office also purport to register a copyright on a "Grover" "Residential Building" as an architectural work. The purported "Residential Building" copyright does not refer to a specific building at a specific location. Along with the registration application, Mr. Picard and Keyfer sent to the U.S. Copyright Office house plans and drawings as well as photographs of houses.¹³ Mr. Picard took the photographs that Keyfer and Mr. Picard sent to the U.S. Copyright Office. Mr. Picard compiled the drawings that Mr. Picard and Keyfer sent to the U.S. Copyright Office. Mr. Keyfer testified that he did not review the photographs or drawings before they were submitted to the U.S. Copyright Office. The photographs of houses sent to the U.S. Copyright Office, purportedly in support for an alleged copyright on a "Residential Building," showed that some of the houses depicted therein were not built in accordance with the "Grover" home design, and in fact the second-story porch on one of the houses had been eliminated by the Brock Defendants in construction. Mr. Keyfer testified that he and Mr. Picard were "not sure exactly when" the houses depicted in the photographs were completed and they decided to provide the U.S. Copyright Office with their "best guess." (Keyfer Dep. at 87:18-89:1.) Mr. Keyfer admitted that to determine the actual start and completion dates for the houses depicted in the photographs Keyfer and Mr. Picard submitted to the U.S. Copyright Office to obtain their purported copyright on a "Residential Building," they would need information from the Brock Defendants. *9 The U.S. Copyright Office issued a registration for the "Grover" architectural drawings and the "Grover" "Residential Building" on June 4, 2007. The nature of the authorship was identified as "Technical drawing" for the "Grover" architectural drawings and as "Architectural work" for the "Grover" "Residential Building." Keyfer filed this lawsuit against the Brock Defendants on September 19, 2007. Keyfer's Complaint contains an Exhibit "C" that purports to list addresses of houses built by the Brock Defendants that allegedly infringe Keyfer's copyright on the "Grover." Keyfer never compiled any list of allegedly infringing houses prior to the filing of its Complaint. Prior to the week of his deposition in June 2008, Keyfer had not reviewed the plans for the allegedly infringing houses listed on Exhibit "C" to its Complaint or compared those plans with the "Grover." Mr. Keyfer has never visited or been inside any of the houses that are listed on Exhibit "C" to Keyfer's Complaint and did not know in his deposition when those houses were constructed. Mr. Keyfer did not do any footwork or research related to Keyfer's potential claims against the Brock Defendants. STANDARD FOR SUMMARY JUDGMENT Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of showing the court, by reference to the record, that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed. 2d 265 (1986). Once the initial burden is met, the non-moving party must go beyond the pleadings and "come forward with 'specific facts showing that there is a genuine issue for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis omitted). To survive summary judgment, the non-moving party "must do more than simply show some that there is some metaphysical doubt as to the material facts." Id. at 586. Indeed, a mere "scintilla" of evidence supporting the opposing party's position will not suffice; rather, there must be a sufficient showing that the jury could reasonably find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L.Ed. 2d 202 (1986). " "An issue of fact is 'material' if, under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004) (citations omitted). "An issue of fact is 'genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Id. at 1260 (citations omitted). The court must view the evidence and any inferences that reasonably may be drawn from the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L.Ed. 2d 142 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004). ANALYSIS This is an action for copyright infringement under 17 U.S.C. § 101, et seq. As stated supra, the action is before the Court on Plaintiff's Amended Motion for Partial Summary Judgment and on the Brock Defendants' Revised Motion for Summary Judgment. The Court will briefly summarize the parties' respective arguments and will then proceed to address the merits of those arguments.

12 As a result of this illegal contingent witness fee agreement, the Court sanctioned Keyfer and struck Mr. Picard as a witness. See March 31, 2009 Order.

13 Keyfer asserts that the record does not affirmatively establish precisely what photos were sent with Keyfer's registration and that such documents must be ordered from the U.S. Copyright Office.

I.

Arguments of the Parties *10 Keyfer seeks summary judgment in this copyright infringement action as to the Brock Defendant's liability for infringing Keyfer's copyrights with respect to the 15 above-referenced houses constructed by Brock Built. Keyfer makes several arguments in support of its motion for partial summary judgment. First, Keyfer argues that the Parkview Contract did not provide BCC ownership of the residential designs provided by Keyfer pursuant to the Parkview Contract.¹⁴ Second, Keyfer argues that the Parkview Contract granted BCC a nonexclusive license to build and re-use the "Grover" only within Parkview. Third, Keyfer argues that Brock Built infringed Keyfer's copyrights in the "Grover" by constructing the "Grover" and copies of the "Grover" without a license. Fourth, Keyfer argues that even if Brock Built acquired rights under the Parkview Contract, Brock Built infringed Keyfer's copyrights in the "Grover" by building the "Grover" outside Parkview. Fifth, Keyfer argues that Mr. Brock is personally liable for the infringing activity of Brock Built because he personally directed, controlled, ratified, participated in, or was the moving force behind the infringing activity of Brock Built. The Brock Defendants seek summary judgment with respect to all of Keyfer's claims. The Brock Defendants argue that Keyfer's claims are not viable for six reasons. First, the Brock Defendants maintain that Keyfer is estopped from pursuing its copyright infringement claims. Second, the Brock Defendants argue that the record evidence is that the Parkview Contract granted the Brock Defendants an express license to re-use the "Grover" inside and outside of Parkview. Third, the Brock Defendants argue that because Keyfer consented to the use of the "Grover" outside of Parkview, did not object to the use of the plan, and entered into the Indemnity Agreement with the Brock Defendants, the Brock Defendants possessed an implied nonexclusive license to use the "Grover" design. Fourth, the Brock Defendants contend that they were joint authors of the "Grover" "Residential Building" and design. Fifth, the Brock Defendants argue that the "Grover" copyrights are invalid because Keyfer committed fraud on the U.S. Copyright Office by intentionally failing to list all the joint authors in the registrations related to the "Grover" copyrights. Sixth, the Brock Defendants argue that the vast majority of the houses listed in the Complaint were built using plans known as the "Hybrid Grover," "Gregory A", and "Gregory B," which Keyfer did not prepare and which are dramatically different from the "Grover" design, and the houses that were built based on the "Grover" design were substantially modified from the original design during construction. Insofar as the arguments made by the parties in their respective summary judgment motions overlap to a large degree, the Court will address the parties' respective summary judgment motions simultaneously.

14 The Brock Defendants expressly do not oppose Keyfer's argument that the Parkview Contract did not give them any ownership interest in the designs. (See The Brock Defs.' Reply in Supp. of Their Mot. for Summ. J. at 5 n. 4.) Accordingly, the Court need not and does not address this argument.

II.

Estoppel The Court first addresses the Brock Defendants' contention that Keyfer is estopped from pursuing its copyright infringement claims. HGI Associates, Inc. v. Wetmore Printing Company, 427 F.3d 867 (11th Cir. 2005) sets forth the standard for copyright estoppel as follows:

Copyright estoppel applies when the alleged infringer can show that (1) the copyright owner knew the facts of the infringement, (2) the copyright owner intended its conduct to be acted upon or the copyright owner acted in such a way that the alleged infringer has a right to believe it was so intended, (3) the alleged infringer is ignorant of the true facts, and (4) the alleged infringer relies on the copyright owner's conduct to his detriment.

Id. at 875. "A copyright owner can be estopped not only by words and action but also by silence and inaction." Id. The Brock Defendants argue that Keyfer knew in 2002, when it charged and collected a "Re-use fee" for the Eastlake House, that the Brock Defendants were building houses based on the "Grover" outside of Parkview. The Brock Defendants further assert that Keyfer knew in 2003, when it requested that Brock Built sign the Indemnity Agreement, that the Brock Defendants were substantially modifying the designs. Despite this knowledge, Keyfer, according to the Brock Defendants, did nothing about the alleged infringement for years, even though Keyfer was intimately involved with developments where the Brock Defendants were building the allegedly infringing houses. The Brock Defendants urge that Keyfer's conduct should estop Keyfer from asserting any copyright infringement claims. *11 The Court finds that the Brock Defendants' estoppel defense, as it pertains to the Brock Defendants using the "Grover" to build homes outside of Parkview, cannot be resolved as a matter of law. The Brock Defendants first rely on Keyfer's acceptance of a "Re-use fee" of $375.00 for the Eastlake House to assert that Keyfer should be estopped from pursuing its claims. However, the circumstances surrounding the Brock Defendants' construction of the Eastlake House appear to be quite different from the circumstances surrounding the Brock Defendants' use of the "Grover" to build the allegedly infringing houses at issue. Mr. Brock testified that he communicated with Mr. Picard regarding the Eastlake House, in particular. Keyfer obviously had no problem with the re-use of the design, as Keyfer invoiced the Brock Defendants the $375.00 "Re-use fee," which the Brock Defendants then paid. Moreover, the parties' arguments and the evidence submitted indicate that the Brock Defendants actually received plan documents from Keyfer for the construction of the East Lake House.¹⁵ Thus, there is no question that Keyfer specifically was aware that the Brock Defendants were building the Eastlake House using the "Grover" design. In contrast to the Eastlake House, the Brock Defendants have not pointed to any evidence that Keyfer knew for years prior to the filing of the lawsuit about either other specific houses or the number of other houses being built by Brock Built outside of Parkview based on the "Grover" design or based on designs that the Brock Defendants argue only used the "Grover" as a reference point. There is evidence that Mr. Keyfer was present at Dupont Commons and West Highlands where single-family homes were being constructed, but the Brock Defendants' evidence that Mr. Keyfer ever saw these homes at a time when the residential designs could be ascertained is quite speculative. The evidence presented by the Brock Defendants establishes that Mr. Picard, while still employed by Keyfer, at least suspected that some of the houses being built by the Brock Defendants were based on Keyfer's designs and that Mr. Picard communicated his suspicions to Mr. Keyfer, but these were only suspicions. Further, Mr. Brock testified that he told Mr. Picard that the Brock Defendants were building Keyfer's plans at Dupont Commons. However, the Court's review of Mr. Brock's testimony informs that the testimony does not establish whether he communicated this information to Mr. Picard at a time when Mr. Picard was still employed by Keyfer.¹⁶ The Brock Defendants acknowledge that Mr. Picard ceased his employment with Keyfer in or around February 2005. Notably, this Court's review of the building permits issued for the allegedly infringing houses built in West Highlands and Dupont Commons indicates that building permits for only 5 of the 14 had been issued as of February 18, 2005. Moreover, the evidence indicates that American Gables' designs of the "Gregory A" and "Gregory B," on which 10 of the 14 allegedly infringing houses were based, were not even complete by January 24, 2005. Accordingly, insofar as construction might have started on only 5 of the allegedly infringing houses, at most, when Mr. Picard ceased his employment with Keyfer, the evidence does not affirmatively demonstrate that Mr. Picard and Keyfer, through Mr. Picard, knew for certain that the houses actually were being built based on the "Grover" design. Thus, the Court rejects the Brock Defendants' position that "Plaintiff had known for years that the Brock Defendants were building houses based on the 'Grover 202' outside of Parkview." (The Brock Defs.' Revised Mem. in Supp. of Their Revised Mem. for Summ. J. at 4.) *12 In addition to the foregoing, the Court finds that the Brock Defendants have not established that Keyfer acted in such a way that the Brock Defendants had a right to believe that Keyfer intended the Brock Defendants to act upon its conduct, and the Brock Defendants have not established that they were unaware of the true facts. Although the evidence indicates that Mr. Brock had general discussions with Mr. Picard regarding the Brock Defendants' intentions to use the residential designs to build homes outside of Parkview and despite Keyfer's prior lack of objection to the construction of the Eastlake House using the "Grover" design, there is no dispute that at least some of the plans that the Brock Defendants received from Keyfer included a purported copyright notice and language directed to the licensee that purported to limit the use of the "Grover" to specific homes within Parkview. The Brock Defendants persuasively argue that this language conflicts with the re-use provisions of the Parkview Contract, as the Parkview Contract obviously allows unlimited re-use within Parkview, but Brock Built was not a party to the Parkview Contract, which the Court discusses in more detail infra. In any event, the language still was contrary to any notion that the Brock Defendants could just use the "Grover" as frequently as they desired and wherever they desired, and the presence of this purported copyright notice and limiting language should have raised a red flag. The Court finds that the presence of the purported copyright notice and limiting language raises a triable issue of fact about whether Keyfer acted in such a way that the Brock Defendants had a right to believe that Keyfer intended the Brock Defendants to act upon its conduct and whether the Brock Defendants were ignorant of the true facts. See Pavlica v. Behr, 397 F. Supp. 2d 519, 527 (S.D.N.Y. 2005) (finding a triable issue of fact regarding defendant's ignorance of the true facts where copy of allegedly infringed material contained a notice on the first page stating that "[a]ny reproduction is prohibited unless permission is granted by the author"). Moreover, even if the Brock Defendants innocently believed that they could re-use the "Grover" design outside of Parkview pursuant to the Parkview Contract, there is no dispute that the Brock Defendants knew they were to pay a "Re-use fee" of $375.00 for each home built based on the "Grover." It is undisputed that the Brock Defendants did not pay "Re-use fees" for any of the allegedly infringing houses at issue, and there is not even evidence that the Brock Defendants made Keyfer aware of the number of houses it was building based on the "Grover" design so that Keyfer would even know to invoice the Brock Defendants for the "Re-use fees." The Brock Defendants' knowledge of its own failure to put Keyfer on notice of the number of houses being built based on the "Grover" design and to pay "Re-use fees" arguably should have made the Brock Defendants aware that their re-use of the designs could be deemed infringing, even if Keyfer could not successfully pursue a copyright infringement claim on that basis. See CMAX Cleveland, Inc. v. UCR, Inc., 804 F. Supp. 337, 356 (M.D. Ga. 1992) ("A material breach of a copyright license agreement constitutes infringement."). But cf. Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749, 753-54 (11th Cir. 1997) ("[T]he [licensee]'s failure to provide the agreed quid pro quo could not, on the facts of this case, invalidate the legal effect of [the licensor]'s permission to play."). In these circumstances, the Court is of the opinion that the Brock Defendants' equitable estoppel defense cannot succeed, at least at the summary judgment stage.¹⁷ The Brock Defendants also argue that Keyfer should be estopped from contending that the Brock Defendants did not have the right to change or modify plans furnished by Keyfer. The Court rejects this argument outright. The Brock Defendants argue that Keyfer's request that the Brock Defendants sign the Indemnity Agreement establishes that Keyfer was fully aware that the plans were being changed and that the Brock Defendants had the right to change such plans. While Keyfer was aware that the Brock Defendants had made changes to the plans during construction and did not object to those changes, there is no evidence that Keyfer was aware at the time it asked Brock Built to sign the Indemnity Agreement that the Brock Defendants were providing the "Grover" design to other architects for the purpose of having those architects prepare new designs based on the "Grover." The language of the Indemnity Agreement itself focused exclusively on the past conduct of Brock Built as of July 3, 2003, the date the Indemnity Agreement was signed. Insofar as the Indemnity Agreement did not even mention future conduct and the Brock Defendants' actions went far beyond those actions that prompted Keyfer to request the Indemnity Agreement, the Court determines as a matter of law that the doctrine of equitable estoppel should not apply to preclude Keyfer from contending that the Brock Defendants did not have the right to change or modify the plans furnished by Keyfer as they did to have the "Hybrid Grover," "Gregory A," and "Gregory B" prepared.

15 Curiously, but significantly, these plan documents included the language indicating that Keyfer only approved of the Brock Defendants using the plans to build homes on certain lots within Parkview.

16 In the Brock Defendants' Revised Statement of Material Facts, the Brock Defendants intentionally specified in a couple of the facts presented that certain information was communicated while Mr. Picard was an employee of Keyfer. (See Brock Defendants' Revised Statement of Material Facts "DSMF" ¶¶ 25-26.) With respect to the stated fact that "Steven Brock told Mr. Picard that the Brock Defendants were building Keyfer's plans at Dupont Commons," (DSMF ¶ 73), there was no such indication that this information was communicated to Mr. Picard while he was an employee of Keyfer.

17 Keyfer also argues that the Brock Defendants did not rely on any actions by Keyfer or Mr. Picard when they committed the alleged infringement. Rather, pointing to the testimony of Mr. Brock, Keyfer states that Mr. Brock thought he owned the designs. The Court rejects this argument as baseless. Mr. Brock testified that he understood the Parkview Contract referred to BCC as the "Owner." He said that he was just "reading the contract." (Brock Dep. at 88.) He also stated that he is "not an attorney" and indicated that he could not say with certainty whether he owned the designs. (Id. 89.) The Court does not see a genuine issue as to whether the Brock Defendants' alleged infringing activity was motivated or influenced by a belief by the Brock Defendants that the Parkview Contract gave them an ownership interest in the residential designs that were delivered pursuant to the Parkview Contract. Certainly, however, this argument does not provide a basis for the Court to reject the Brock Defendants' estoppel defense as a matter of law.

III.

Scope of the License Under the Parkview Contract *13 The Brock Defendants' liability for copyright infringement depends, at least in part, on the scope of the license under the Parkview Contract. A licensee infringes an owner's copyright if the licensee's use of the work exceeds the scope of its license. Tingley Sys., Inc. v. Healthlink, Inc., 509 F. Supp. 2d 1209, 1217 (M.D. Fla. 2007) (citation omitted); CBS, Inc. v. PrimeTime 24 Joint Venture, 76 F. Supp. 2d 1333, 1337 (S.D. Fla. 1998) (citations omitted). Thus, before analyzing the legal elements of infringement, the Court addresses the scope of the license under the Parkview Contract. The parties agree that the Parkview Contract granted BCC an express license to build the residential designs provided to BCC by Keyfer pursuant to the Parkview Contract and to re-build the residential designs for a "Re-use fee" of $375.00 per home. The parties disagree, however, as to whether BCC and Brock Built had an express license to build the residential designs outside of Parkview. Keyfer maintains that the Parkview Contract limited BCC's use and re-use of the designs to homes built within Parkview, while the Brock Defendants argue that the Parkview Contract permitted homes to be built by BCC and Brock Built outside of Parkview using the residential designs provided by Keyfer for a "Re-use fee" of $375.00 per home paid to Keyfer. A.

Brock Built

Brock Built is not a party to the Parkview Contract and did not obtain through the Parkview Contract an express license to take any action with respect to the residential designs provided by Keyfer pursuant to the Parkview Contract. It is undisputed that Keyfer knew and intended that Brock Built would build houses based on the plans produced pursuant to the Parkview Contract. It is further undisputed that all versions of the "Grover" design specified the "client" as "Brock Built, LLC," including the designs submitted by Keyfer to the U.S. Copyright Office. The Brock Defendants argue that these undisputed facts, along with other evidence in the record, demonstrate that the parties intended for Brock Built to have rights under the Parkview Contract. However, the Parkview Contract unambiguously was entered into only by Keyfer and BCC, and BCC only had a non-exclusive license that was not transferable. See Harris v. Emus Records Corp., 734 F.2d 1329, 1333-34 (9th Cir. 1984). Insofar as the Brock Defendants have not relied on any legal authority other than O.C.G.A. § 13-2-3 to assert that Brock Built was granted an express license under the Parkview Contract, the Court rejects the Brock Defendants' position and discerns the intentions of the parties solely from the Parkview Contract itself. See Azzouz v. Prime Pediatrics, P.C., 296 Ga. App. 602, 675 S.E.2d 314 (2009) ("If the language is clear and unambiguous, contract construction is not necessary, and the agreement will be enforced according to its clear and unambiguous terms."). Based on the Court's review of the Parkview Contract, the Court concludes that Brock Built was not a party to the Parkview Contract and was not granted an express license thereunder. B.

BCC

The Court next addresses the scope of the express license granted to BCC under the Parkview Contract and determines that genuine issues of material fact exist regarding the scope of this express license. The parties agree that Georgia law governs the Court's construction of the Parkview Contract. Under Georgia law, the proper construction of a contract is a question of law for determination by the court. In re Club Assocs., 951 F.2d 1223, 1230 (11th Cir. 1992) (applying Georgia law); see also O.C.G.A. § 13-2-1 ("The construction of a contract is a question of law for the court."). "The cardinal rule of contract construction is to ascertain the intention of the parties." O.C.G.A. § 13-2-3. There are three steps in the process of contract construction. CareAmerica, Inc. v. Southern Care Corp., 229 Ga. App. 878, 880, 494 S.E.2d 720 (1997). First, the court must decide whether the contract language is clear and unambiguous. Id. Second, if the language is ambiguous, then the court must apply the applicable rules of construction, which are set forth in O.C.G.A. § 13-2-2, to resolve the ambiguity. Id. Third, if an ambiguity remains after applying the applicable rules of construction, the jury must then resolve the ambiguity. Id. *14 The Court finds that the Parkview Contract is ambiguous as to whether the residential designs provided by Keyfer pursuant to the Parkview Contract may be re-used outside of Parkview. Language in a contract is ambiguous if it is reasonably susceptible of more than one interpretation. Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385, 387, 414 S.E.2d 521 (1991) (citation omitted). The language in section I.(A.) of the Parkview Contract stating that "[a]ll residential designs provided by the Architect are intended for the use for this specific project" is reasonably susceptible of more than one interpretation. The language could be interpreted to restrict all uses of the designs to within Parkview. Alternatively, the language could be interpreted to mean that the designs are intended for use at Parkview simply because the Architect is drafting the residential designs with the Parkview lots in mind, specifically. The latter interpretation, however, is not necessarily a restriction on use of the residential designs outside Parkview, as intending the designs for use at a specific place is not synonymous with restricting the use of the designs to that place. The language stating that "[r]esidential designs provided by the Architect specifically for this project as described in (A.) above may be re-built for a re-use fee of $375.00 paid to the Architect" simply does not clearly specify whether the designs may be re-built outside of Parkview. The language reiterates that the designs are being provided for use for the project at Parkview, but the language does not unambiguously limit the re-use of the designs to within Parkview. The Parkview Contract does not state, for example, that the designs may be re-built "only within Parkview" for a re-use fee of $375.00. The Court easily finds that the Parkview Contract is indefinite in this regard. Applying the rules of contract construction, O.C.G.A. § 13-2-2(1) provides: "Parol evidence is inadmissible to add to, take from, or vary a written contract. All attendant and surrounding circumstances may be proved and, if there is an ambiguity, latent or patent, it may be explained." When presented an ambiguous contract, many Georgia courts will consider parol evidence at the summary judgment stage to gain an understanding of the attendant and surrounding circumstances. See, e.g., Lostocco v. D'Eramo, 238 Ga. App. 269, 276, 518 S.E.2d 690 (1999); CareAmerica, 229 Ga. App. at 881. But see Livoti v. Aycock, 263 Ga. App. 897, 902, 590 S.E.2d 159 (2003) ("And, normally, only if the ambiguity is not resolved by application of the rules of construction may parol evidence be introduced to explain the agreement, at which point the question of what was intended becomes an issue of fact for the jury."). In the instant case, Keyfer brings to the Court's attention that the completed "Grover" plans delivered to the Brock Defendants included language specifying the lots on which the plans could be used to construct homes within Parkview, and Keyfer notes the absence of evidence demonstrating that the Brock Defendants ever objected to the language. Keyfer also points the Court to the August 31, 2001 Proposal wherein Keyfer offered to provide three to four designs for each of three different developments for a total of ten designs at the price of $40,000.00. Re-use fees were to range between $200.00 and $500.00, depending on the number of houses being built based on the designs. Keyfer emphasizes the absence of language in the August 31, 2001 Proposal indicating that the designs were "specifically intended" for any project. Keyfer also states that BCC rejected the August 31, 2001 Proposal but later agreed to the Parkview Contract for a significantly reduced fee of $8,500.00 for four (4) designs "specifically intended" for Parkview. While the Court agrees with Keyfer that this parol evidence is telling, this Court cannot simply ignore the parol evidence that the Brock Defendants present. Among other evidence, the Brock Defendants offer the testimony of Mr. Brock, who testified that he discussed with Mr. Picard using the Parkview designs outside of Parkview during the negotiations of the Parkview contract and that Mr. Picard encouraged him to use the designs "everywhere on a number of occasions." (Brock Dep. at 32:3-7.) The Brock Defendants also rely on the fact that they actually built a house outside of Parkview and were billed a "Re-use fee" of $375.00 pursuant to the Parkview Contract. This evidence, too, is probative of the parties' intentions. However, the conflicting parol evidence presents an issue of fact regarding the parties' intentions that is not proper for this Court to resolve. See O.C.G.A. § 13-2-1 ("The construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact."). Accordingly, if applying other rules of construction does not resolve the ambiguity, a jury must do so. McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga. App. 595, 602, 660 S.E.2d 397 (2008) (citation omitted). *15 The next applicable rule of contract construction informs that the Court should seek to construe the Parkview Contract in a manner that "will uphold [the] contract in whole and in every part." Homelife Communities Group v. Rosebud Park, LLC, 280 Ga. App. 120, 122, 633 S.E.2d 423 (2006) (quoting O.C.G.A. § 13-2-2(4)). "It is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless." Board of Regents v. A. B. & E., 182 Ga. App. 671, 675, 357 S.E.2d 100 (1987). Keyfer asserts that an interpretation of the language at issue to mean that the designs were being drafted with the Parkview lots in mind renders the language meaningless, as "[o]bviously, Designs specifically provided for the named project will work and be compatible with that project." (Am. Mem. in Supp. of Pl.'s Am. Mot. for Partial Summ. J. at 13.) The Court disagrees that the language is rendered meaningless by this interpretation. Interpreted in this manner, this language could serve to advise against, but not necessarily prohibit, the Brock Defendants unilaterally deciding to use or re-use the designs in developments for which the designs were not specifically drafted and provided. Given that Keyfer appears to concede that plans are designed with particular project sites in mind, it is quite conceivable that the designs would not work and be compatible with another project without the designs being adapted or modified in some manner. Thus, this language could simply serve the purpose of putting BCC on notice that the designs were being drafted with the Parkview project in mind only and no other.¹⁸ Applying the rule of contract construction set forth in O.C.G.A. § 13-2-2(4) does not resolve the ambiguity. The rules of interpretation under Georgia law next instruct that contractual terms that are ambiguous are to be construed against the person who drafted the contract. See O.C.G.A. § 13-2-2(5); see also Smith v. Persichetti, 245 Ga. App. 357, 358-59, 537 S.E. 2d 441 (2000). In this case, that would require the Court to construe the ambiguous terms against Keyfer. Relying on law in the Ninth Circuit, Keyfer urges that it is reversible error to construe a copyright license against the drafter. See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1088 (9th Cir. 1989). Keyfer argues that the rule of contract construction providing for an ambiguous contract to be construed against its drafter, as well as other rules of contract construction, should be applied only to the extent that they do not interfere with federal copyright law or policy. See Original Appalachian Artworks, Inc. v. S. Diamond Assocs., Inc., No. 1:87-CV-183JTC, 1993 WL 485176, at *2 (N.D. Ga. July 30, 1993) ("State law is relied on to provide the cannon of contractual construction, but only to the extent such rules to [sic] do not interfere with federal copyright law or policy."). The Court recognizes that binding precedent in the Eleventh Circuit informs that "application of Georgia rules to determine parties' contractual intent is not preempted by either copyright act nor does their application violate federal copyright policy." Fantastic Fakes, Inc. v. Pickwick Int't, Inc., 661 F.2d 479, 483 (5th Cir. 1981). However, Fantastic Fakes also acknowledged that "[i]t is possible to hypothesize situations where application of particular state rules of construction would so alter rights granted by the copyright statutes as to invade the scope of copyright law or violate its policies." Id. Considering the particular facts in this case, the Court agrees with Keyfer and concludes that construing the Parkview Contract against Keyfer so as to find that BCC had the right to use the residential designs outside of Parkview, when that right was not expressly and unambiguously provided under the Parkview Contract, would be contrary to federal copyright law's purpose of protecting an author's rights. See S.O.S., 886 F.2d at 1088 ("Chief among these purposes is the protection of the author's rights.") (citation omitted). Accordingly, the Court will not apply O.C.G.A. § 13-2-2(5). While the Court will not construe the Parkview Contract against Keyfer, this Court is aware of no binding authority that requires the Court to construe the Parkview Contract in Keyfer's favor to conclude that the Parkview Contract restricts the re-use of the residential designs to Parkview. Relying again on Ninth Circuit authorities, Keyfer maintains that copyright licenses are presumed to prohibit any use not authorized. See PlayMedia Sys. v. America Online, Inc., 171 F. Supp. 2d 1094, 1099 (C.D. Cal. 2001); S.O.S., 886 F.2d at 1088. However, in the case at bar, there still remains uncertainty as to whether Keyfer authorized BCC to re-use the designs outside of Parkview. As the ambiguity in the Parkview Contract still exists, despite this Court's consideration of the rules of construction, a "jury or other factfinder must resolve the ambiguity." McGuire Holdings, 290 Ga. App. at 602 (citation omitted). As discussed supra, both parties have presented extrinsic evidence that they contend reflects the intentions of the parties. It is for the jury to consider the conflicting extrinsic evidence, which presents a question of fact, to ascertain the original understanding of the parties. See O.C.G.A. § 13-2-1.

18 If this was the intent of Keyfer in putting this language in the Parkview Contract, it does seem that Keyfer would have desired to put similar language in the August 31, 2001 Proposal. However, this is an issue that a jury may consider.

IV.

Implied Nonexclusive License *16 The Brock Defendants next argue that they possessed an implied nonexclusive license to use the "Grover" plan inside and outside of Parkview. An implied nonexclusive license is an affirmative defense to a copyright infringement claim. See Wilchcombe v. Teevee Toons, Inc., 515 F. Supp. 2d 1297, 1303 (N.D. Ga. 2007), aff'd, 555 F.3d 949 (11th Cir. 2009); accord I.A.E., Inc. v. Shaver, 74 F.3d 768, 775 (7th Cir. 1996) ("Although a person holding a nonexclusive license has no standing to sue for copyright infringement, the existence of a license, exclusive or nonexclusive, creates an affirmative defense to a claim of copyright infringement.") (internal citations omitted). The implied nonexclusive license can be conferred orally or by course of conduct. See Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749, 752 (11th Cir. 1997); Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990). " '[C]onsent given in the form of mere permission or lack of objection' is sufficient to establish that the copyright owner has granted a nonexclusive license." Gordon v. Lee, No. 1:05-CV-2162-JFK, 2007 WL 1450403, at *12 (N.D. Ga. May 14, 2007) (quoting I.A.E., 74 F.3d at 775). The Ninth Circuit, in Effects Associates, established a three-prong test for evaluating whether an implied nonexclusive license exists.

Under the Effects Associates test, an "implied nonexclusive license" for use of an otherwise copyrighted protected work is created "when (1) a person (the licensee) requests the creation of the work, (2) the creator (the licensor) makes that particular work and delivers it to the licensee who requested it, and (3) the licensor intends that the licensee copy and distribute his work."

Nelson-Salabes, Inc. v. Morningside Dev., LLC, 284 F.3d 505, 514 (4th Cir. 2002) (quoting I.A.E., 74 F.3d at 776). Discussing the Effects Associates test in the architectural context, the Nelson-Salabes court articulated three additional factors that a court should consider in determining whether an implied nonexclusive license exists:

(1) whether the parties were engaged in a short-term discrete transaction as opposed to an ongoing relationship; (2) whether the creator utilized written contracts, such as the standard AIA contract, providing that copyrighted materials could only be used with the creator's future involvement or express permission; and (3) whether the creator's conduct during the creation or delivery of the copyrighted material indicated that use of the material without the creator's involvement or consent was permissible.

Nelson-Salabes, 284 F.3d at 516. To the extent that the Brock Defendants argue that BCC had an implied nonexclusive license in addition to the express license provided under the Parkview Contract, the Court rejects this argument. "An express license and an implied license cannot in the nature of things coexist." Hazen Mfg. Co. v. Wareham, 242 F. 642, 647 (6th Cir. 1917); see also Do It Best Corp. v. Passport Software, Inc., No. 01 C 7674, 2005 WL 743083, at *4-5 (N.D. Ill. Mar. 31, 2005) (recognizing this principle in the context of a copyright license dispute); Mahurkar v. C.R. Bard, Inc., No. 92 C 4803, 1993 WL 259446 at *10 n. 4 (N.D. Ill. July 6, 2003) (recognizing this principle in the context of a patent license dispute). "There cannot be an express and implied contract for the same thing existing at the same time between the same parties. It is only when the parties themselves do not expressly agree that the law interposes and raises a promise; and no agreement can be implied where there is an express one existing." Ramsey v. Langley, 86 Ga. App. 544, 549, 71 S.E.2d 863 (1952). The Court thus concludes that the existence of BCC's express license bars the Brock Defendants from trying to assert and prove that BCC had an implied license governing the exact same subject matter. *17 With respect to Brock Built, the Court finds that genuine issues of material fact preclude a determination on summary judgment that Brock Built was granted an implied nonexclusive license to re-use the "Grover" inside and outside of Parkview. Although Keyfer argued initially that Brock Built had no license whatsoever to use the "Grover," Keyfer now concedes that Brock Built had an implied license to build houses based on the "Grover" design in Parkview and at Eastlake. (See Pl.'s Opp. to the Brock Defs.' Revised Mot. for Summ. J. at 13.) The issue in dispute and that cannot be resolved on summary judgment concerns Keyfer's intent as to whether those houses could be built outside of Parkview, as manifested through contracts, statements, action, and/or inaction. See John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26, 42 (1st Cir. 2003) (finding that "it is an objective inquiry into facts that manifest such contractual intent" and not "a subjective inquiry into the mind of the putative licensor"). As the Court has recounted previously, the evidence reflects that Mr. Brock told Mr. Picard, when he was still working for Keyfer, that the Brock Defendants planned to use the "Grover," as well as other plans, in developments other than Parkview. Mr. Picard, who was the Brock Defendants' primary contact at Keyfer and the person who negotiated on Keyfer's behalf, expressly approved. While Brock Built was not a party to the Parkview Contract and has no express license pursuant thereto, it is still noteworthy that the Parkview Contract contains a "Re-use fee" that expressly contemplated further use of the designs. This is relevant to Keyfer's intent as to Brock Built because Keyfer provided plans to Brock Built for the construction of the Eastlake House and billed a "Re-use fee" of $375.00 pursuant to the Parkview Contract, which Brock Built paid. Notwithstanding the existence of this evidence that strongly supports that Brock Built had an implied nonexclusive license to build homes based on the "Grover" both inside and outside Parkview, at least some of the plans that Keyfer delivered to Brock Built included a purported copyright notice and language that specified that the plans were only to be used for specific lots within Parkview.¹⁹ This purported copyright notice and language also were included on the plans delivered for construction of the Eastlake House, which is outside of Parkview, but the inclusion of this language on several of the plans, including this plan, nevertheless creates an issue of fact as to Keyfer's intent regarding the scope of the implied nonexclusive license. The Brock Defendants also argue that Keyfer granted them permission to modify and create derivative works of the "Grover," but this argument is meritless. Similar to their argument with respect to the estoppel defense, the Brock Defendants argue that Keyfer's request that Brock Built enter into the Indemnity Agreement proves beyond any doubt that the Brock Defendants possessed an implied nonexclusive license to modify the "Grover" without Keyfer's involvement. The Brock Defendants rely exclusively on the Ninth Circuit's decision in Foad to support their position. The indemnification clause in Foad, however, is quite distinguishable from the Indemnity Agreement in this case. In Foad, the contract between the parties contained a clause requiring the developer to indemnify the architect "in the event that others modify the plan and the changes lead to some liability." 270 F.3d at 829-30 (emphasis added). Further, the clause did not require the developer to obtain the architect's consent in order to modify the plans. The Ninth Circuit held in Foad that "[t]he indemnification clause plus the absence of any prohibition against modification by others indicates that the contract granted [the developer] an implied license to hire others to create derivative works using the revised plot plan for the purpose of completing the project." Id. at 830. Here, in contrast to the indemnification clause in Foad, the Indemnity Agreement concerned itself only with changes that had already been made by Brock Built. The Indemnity Agreement did not contemplate or approve of, implicitly or explicitly, any future changes made to the designs by others retained by Brock Built to prepare derivative works. Given these important distinctions, the Court rejects the Brock Defendants' argument that Keyfer gave them permission to modify and create derivative works of the "Grover."

19 Insofar as the Parkview Contract was not entered into between Keyfer and Brock Built, the Court finds that the Brock Defendants' reliance on Foad Consulting Group, Inc. v. Azzalino, 270 F.3d 821, 829 (9th Cir. 2001) to be misplaced. The language included on the plans delivered to Brock Built must be considered by the Court, as there was not a mutually-agreed upon contract between Keyfer and Brock Built.

V.

Copyright Infringement ²⁰ "To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L.Ed. 2d 358 (1991) (citation omitted); Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1223 (11th Cir. 2008). The Court will address each prong of the test for infringement in turn, as the Brock Defendants raise challenges with respect to both prongs. A.

20 Given the Court's conclusions above that genuine issues of material fact remain as to the Brock Defendants' estoppel defense, the scope of BCC's express license under the Parkview Contract, and the scope of Brock Built's implied nonexclusive license, Keyfer is not entitled to partial summary judgment as to the Brock Defendants' liability for copyright infringement. Therefore, the Court's analysis of the copyright infringement issues will focus on whether the Brock Defendants' are entitled to summary judgment.

Validity of Copyrights

*18 Prior to filing the Complaint in this action, Keyfer obtained copyright registrations for the "Grover" design and "Residential Building." The first registration is for the technical drawing, and the second registration is for the architectural work. A certificate of copyright registration creates a rebuttable presumption that the copyright is valid. See Montgomery v. Noga, 168 F.3d 1282, 1289 (1999); see also 17 U.S.C. § 410(c) ("[T]he certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate."). Thus, the burden now shifts to the Brock Defendants to introduce evidence of invalidity. See Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 826 (11th Cir. 1982). The Brock Defendants challenge the validity of Keyfer's copyrights on two primary grounds. First, they argue that they are joint authors of the "Grover" "Residential Building" and that they, along with Benjamin Robbins, are also joint authors of the "Grover" design. Second, the Brock Defendants argue that Keyfer committed fraud on the U.S. Copyright Office by intentionally failing to list all authors. Before addressing each of these arguments, the Court briefly will set forth the legal landscape regarding copyright ownership, generally, and the copyrights owned by Keyfer, specifically. Copyright ownership vests initially in the author or authors of a work. 17 U.S.C. § 201(a). "[T]he author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection." Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737, 109 S. Ct. 2166, 104 L.Ed. 2d (1989) (citing 17 U.S.C. § 102). "The authors of a joint work are coowners of copyright in the work." 17 U.S.C. § 201(a). A "joint work" is defined as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. § 101. "Co-owners are, of course, equally entitled to claim a copyright in the undivided whole of the protected work." M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir. 1990) (citation omitted). "Therefore, 'an action for infringement between joint owners will not lie because an individual cannot infringe his own copyright.' " Words & Data, Inc. v. GTE Commc'ns. Servs., Inc., 765 F. Supp. 570, 574 (W.D. Mo. 1991) (quoting Weissmann v. Freeman, 868 F.2d 1313, 1318 (2d Cir. 1989)). To establish joint ownership, the party claiming ownership must establish that "he or she contributed to the work some original expression which became 'part of the finished expression' and that the contributors intended to be joint authors." Gordon v. Lee, No. 1:05-CV-2162-JFK, 2007 WL 1450403, at *9 (N.D. Ga. May 14, 2007). "The respective contributions of authors to a single work do not need to be equal either quantitatively or qualitatively in order to constitute such contributors as joint authors." Words & Data, 765 F. Supp. at 575 (quoting 1 M. Nimmer, Nimmer on Copyright, § 6.07 at 6-18.2 (1990)). The respective contribution must, however, be more than de minimis. Id. Architectural plans and drawings are protected by copyright law as "pictorial, graphic, and sculptural works" and as "architectural works." 17 U.S.C. § 102(a)(5) & (8). "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. As relevant to the case at bar, copyright protection extends both to the plans or drawings for the design of a house and to the design of the house as depicted in the plans or drawings. Cf. J.R. Lazaro Builders, Inc. v. R.E. Ripberger Builders, Inc., 883 F. Supp. 336, 339 (S.D. Ind. 1995). Thus, "[a] work can obtain protection as both an architectural work and a technical drawing ... if the work is registered under both categories." Morgan v. Hanna Holdings, Inc., 635 F. Supp. 2d 404, 409 n. 1 (W.D. Pa. 2009) (citing 37 C.F.R. § 202.11(c)(4)). 1.

Registration of Copyright for and Authorship of Residential Building

*19 The Brock Defendants maintain that Keyfer's copyright registration for the "Grover" "Residential Building" is invalid because Keyfer has never constructed any "Grover" buildings and did not participate in the construction of houses based on the "Grover" design. The Brock Defendants further argue that they constructed the houses based on the "Grover" in Parkview and that because they made structural changes to the design during construction that were so pervasive that Keyfer requested that Brock Built sign the Indemnity Agreement, they should at least be deemed joint authors of the "Grover" residential building. Keyfer's description of the nature of the work as a "Residential Building" is understandably confusing to the Brock Defendants, but Keyfer obviously was seeking to obtain copyright protection for the actual design of the "Grover" residential building, so as to preclude others from building a house that replicates the "Grover" house design. The fact that Keyfer submitted photos of several different houses indicates that its intent was not to obtain a copyright for a particular residential building at a specific address but was to obtain protection for the building design. Indeed, Keyfer confirms that this was its intent by stating in its summary judgment reply brief that "Keyfer registered the Grover plans as an architectural work and as a technical drawing." (Pl.'s Reply Br. to the Brock Defs.' Opp. to Pl.'s Am. Mot. for Partial Summ. J. at 20.) Regardless of any error by Keyfer in the description of the nature of the work, it cannot be disputed that Keyfer was entitled to a copyright registration for the "Grover" as an architectural work. Keyfer authored the architectural drawings and plans, and accurate copies of the architectural drawings and plans were submitted to and presumably reviewed by the U.S. Copyright Office. To the extent that Keyfer should have described the work as a "Residential Building Design" rather than just "Residential Building," "[i]t is well established that a mere innocent error in classification will not ordinarily, in itself, 'invalidate or impair copyright protection.' " Axelrod v. Cherveny Architects, P.C. v. Winmar Homes, No. 2:05-CV-711-ENV-ETB, 2007 WL 708798, at *3 (E.D.N.Y. Mar. 6, 2007) (quoting L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 n. 2 (2d Cir. 1976)); see also Yurman Studio, Inc. v. Castaneda, 591 F. Supp. 2d 471, 494 (S.D.N.Y. 2008) ("[A]n administrative classification, such as 'Nature of Work' is relevant for purposes of deposit and registration, but it 'has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title.' ") (quoting 17 U.S.C. § 408(c)(1)). In short, Keyfer submitted plans and drawings of the "Grover," which they authored, and those plans and drawings provided adequate support for the architectural work registration.²¹ The Brock Defendants also are not joint authors of the "Residential Building." As stated supra, a party claiming joint authorship must establish that each of the putative joint authors fully intended to be joint authors. Gordon, 2007 WL 1450403, at *9. The Brock Defendants have not even attempted to make that showing here. 2.

21 Notably, an author of architectural drawings or plans is not required to build the work or have the work built prior to registering the drawings or plans as an architectural work. Hunt v. Pasternack, 192 F.3d 877, 878-79 (9th Cir. 1999) ("Because the statute provides that the copyright [for an architectural work] is in the design as embodied not only in a building, but alternatively in the architectural plans, we hold that construction of the actual building was not required.").

Authorship of Architectural Drawings

*20 The Brock Defendants argue that they have an ownership interest in the copyright for the "Grover" based on their contributions to the creation of the "Grover" design. This argument is unpersuasive. With respect to all of the single-family home designs that Keyfer drafted for the Parkview Contract, the Brock Defendants submit that they (1) provided Keyfer with home designs from another project to use as a reference point in drafting the single-family home designs for the Parkview Contract; (2) provided specifications required for the home designs, including that the designs should be "Craftsman" style, narrow-lot, single-family home designs with three bedrooms and two bathrooms; (3) provided significant input regarding the designs, including providing sketches; (4) made changes, revisions, and modifications to the drafts that were incorporated into the final versions of the single-family home designs; and (5) had final approval over the single-family home designs. Such normal participation by a client in the creation of architectural drawings or plans, however, does not usually transform the client into an author or co-author of the drawings or plans. M.G.B. Homes, 903 F.2d at 1493 (finding that a home builder was not a joint author of architectural plans, even though the home builder prepared a thumbnail sketch of the floor plan he wanted, reviewed architectural drawings in progress, made suggestions and corrections, and exercised final approval over the plans). Additionally, the Brock Defendants have not pointed to any original expression they contributed that became a part of the finished expression. As such, they are not joint authors of the designs. See Gordon, 2007 WL 1450403, at *9. The Court also rejects the Brock Defendants' argument that Benjamin Robbins was a joint author of the architectural drawings for the "Grover." The Brock Defendants state that Mr. Robbins also had input into the preparation of the single-family home designs and was present at the meetings the Brock Defendants had with Mr. Picard regarding the home designs. This clearly is insufficient to satisfy the standard for joint authorship. Moreover, as with the copyright registration for the architectural work, the Brock Defendants have not pointed to any evidence demonstrating that the parties intended the "Grover" to be a work of joint authorship or intended "that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. § 101. The Brock Defendants' claim of joint authorship fails for this reason as well. 3.

Fraud on the U.S. Copyright Office

The Brock Defendants next argue that Keyfer's alleged copyright registrations are invalid because they intentionally misrepresent and omit all authors of the works. In light of this Court's prior findings that neither the Brock Defendants nor Benjamin Robbins authored the "Grover," the Court rejects this argument outright. B.

Copying of Original Elements

Copying in an infringement action may be proven by direct or indirect evidence. Donald Frederick Evans & Assocs., Inc. v. Continental Homes, Inc., 785 F.2d 897, 904 (11th Cir. 1986). A plaintiff may prove copying indirectly by demonstrating (1) the defendant has access to the work and (2) the defendant's work is substantially similar to the plaintiff's work. Toyloft, 684 F.2d at 829. Irrespective of whether a plaintiff attempts to prove infringement by direct or indirect evidence, "the plaintiff also must establish specifically that the allegedly infringing work is substantially similar to the plaintiff's work with regard to its protected elements." Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir. 2000) (emphasis in original) (citations omitted). "Even in the rare case of a plaintiff with direct evidence that a defendant attempted to appropriate his original expression, there is no infringement unless the defendant succeeded to a meaningful degree." Id. (citation omitted). In the instant case, there is direct evidence of copying of the "Grover" with respect to several of the allegedly infringing houses built outside of Parkview, as the house plans for several of the houses are entitled "Grover 202" (the name used by the Brock Defendants to refer to the "Grover"), appear to be identical to the "Grover," and still have Keyfer's name block on the plan documents. With respect to the remainder of the allegedly infringing houses built outside Parkview, there is no dispute that the Brock Defendants had access to the "Grover." Further, there is no dispute that the Brock Defendants provided the "Grover" both to Roya and American Gables, who then designed plans based on the "Grover." Keyfer contends that the respective CEOs of Roya and American Gables admit to copying the "Grover" in designing the derivative works at issue, but these CEOs actually attested to modifying the "Grover," not "copying" the Grover. (Affidavit of Hamid Daftarian ¶ 15; Affidavit of Mark Hall ¶¶ 11-13.) In any event, the Court will proceed to address the issue of substantial similarity, as required by binding Eleventh Circuit authority. *21 The Brock Defendants contend that they are entitled to summary judgment on the ground that the allegedly infringing houses are not substantially similar to the "Grover." Two works are substantially similar if "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Leigh, 212 F.3d at 1214. In assessing substantial similarity, courts weigh the similarities and the dissimilarities of two works. John Alden Homes, Inc. v. Kangas, 142 F. Supp. 2d 1338, 1344-45 (M.D. Fla. 2001) (citing Howard v. Sterchi, 974 F.2d 1272, 1275-76 (11th Cir. 1992)), aff'd, 37 Fed. Appx. 979 (11th Cir. 2002). When evaluating single-family home designs, the Eleventh Circuit has recognized that "[t]he variety of ways a two-story rectangle can be divided into three bedrooms, two baths, a kitchen, a great room or living room, closets, porches, etc. is finite[;] [i]n architectural plans of this type, modest dissimilarities are more significant than they may be in other types of art works." Howard, 974 F.2d at 1276. "A court may find that floor plans are visually similar with the same type of general layout yet also find their dissimilarities significant." Lifetime Homes, Inc. v. Walker Homes, Inc., 485 F. Supp. 2d 1314, 1321 (M.D. Fla. 2007) (citing Howard, 974 F.2d at 1276). "Substantial similarity is a question of fact, and summary judgment is only appropriate if no reasonable jury could differ in weighing the evidence." Leigh, 212 F.3d at 1216 (internal citations omitted); Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994); Continental Homes, 758 F.2d at 904. Following Howard, in Home Design Services, Inc. v. David Weekley Homes, LLC, 548 F. Supp. 2d 1306 (M.D. Fla. 2008), the Home Design Services court found that although "at first glance the floor plans and the overall layout is [sic] generally the same," no reasonably jury could find that the designs at issue were substantially similar because of "striking" differences, including:

square footage, the presence of an island in the kitchen of the Boca Grand designs, the location of the stove, the number of walk-in closets, the location of sinks in master bathroom, the angle of the bathtub in bathrooms, the size of doorways (single doors versus double doors), the closet in the laundry room, the number of windows in master bedroom (four versus two), the presence of a chimney, and the linear corridor separating the fourth bedroom from the family room[.]

Id. at 1313. The Home Design Services court also found that the facade of the designs were substantially different because the designs had "different shaped roofs" and one design "contain[ed] a chimney" whereas the other did not. Id. Based on these differences, the Home Design Services court granted summary judgment for the defendants. In this case, the Brock Defendants point to numerous differences between the "Grover" and the "Hybrid Grover," including the following: (1) the "Grover" has a "dormer" or window in the roof whereas the "Hybrid Grover" does not; (2) the "Grover" has a chimney whereas the "Hybrid Grover" does not; (3) the elevation and pitch of the roofs; (4) the brackets; (5) the placement, size, and shape of windows; (6) the number of windows; (7) the door placement; (8) the stairs on the back deck; (9) the column spacing; (10) the butler's pantry; (11) the kitchen layout; (12) the shape and dimensions of the interior rooms; (13) the depth of the porch; (14) the configuration of the master bathroom; and (15) the downstairs foyer or lack thereof. The Brock Defendants identify the following as differences between the "Grover" and the "Gregory A": (1) the front porch of the "Grover" is on the right side whereas the front porch of the "Gregory A" is centered in the middle of the house; (2) the "Gregory A" roofline has an additional gable; (3) the elevation of the roof; (4) the "Grover" has a "dormer" or window in the roof whereas the "Gregory A" does not; (5) the placement and design of the columns; (6) the railings; (7) the window patterns on both the first and second floors as well as the number of windows and window size and shape; (8) the foundation material; (9) the banding; (10) the brackets; (11) the "Grover" has a chimney whereas the "Gregory A" does not; (12) the size and shape of the back deck; (13) the materials called for by the plans; (14) the room dimensions and shapes; (15) the location of the stairs; (16) the location and size of the foyer; (17) the configuration of the butler's pantry; (18) the layout of the kitchen; (19) the size and shape of the master bedroom and associated closet space; and (20) the placement, size, and shape of doors. *22 The Brock Defendants also point to many differences between the "Grover" and the "Gregory B," including: (1) the front porch on the "Grover" is on the right side whereas the front porch on the "Gregory B" is centered in the middle of the house; (2) the elevation of the roof; (3) the "Grover" has a "dormer" or window in the roof whereas the "Gregory B" does not; (4) the placement and design of the columns; (5) the railings; (6) the window patterns on both the first and second floor as well as the number of windows and window size and shape; (7) the foundational material; (8) the banding; (9) the brackets; (10) the "Grover" has a chimney whereas the "Gregory B" does not; (11) the "Grover" has a detached entry garage or a rear-entry garage whereas the "Gregory B" has a side-entry garage; (12) the size of the garage; (13) the size and shape of the back deck; (14) the materials called for by the plans; i.e., a stone veneer instead of brick; (15) the room dimensions and shapes; (16) the location of the stairs; (17) the location and size of the foyer; (18) the configuration of the butler's pantry; (19) the layout of the kitchen; (20) the size and shape of the master bedroom and associated closet space; (21) the presence of shutters; and (22) the placement, size, and shape of doors. Plaintiff counters that the creators of the "Gregory A," "Gregory B," and "Hybrid Grover" have admitted that in a floor by floor and room by room comparison, the "Gregory A," "Gregory B," and "Hybrid Grover" have essentially the same rooms. Further, the creators have admitted that those rooms have the same location and that the dimensions and overall shape of those rooms are nearly identical. Plaintiff maintains that this is sufficient to deny the Brock Defendants summary judgment. The Court has reviewed all the evidence presented by the parties, specifically compared the plans, drawings, and photographs of the allegedly infringing houses to the plans, drawings, and photographs of the "Grover," and focused specifically on the protectable elements. Having made this review, the Court is compelled to agree with the Brock Defendants that there is an absence of substantial similarity between the "Grover" and the "Gregory A" and between the "Grover" and the "Gregory B." The differences identified by the Brock Defendants are evident when comparing the plans, drawings, and photographs, and the Affidavit of Mark Hall, relied on by Keyfer, actually confirms many of these differences and sheds light on several others. An average lay observer would not recognize either the "Gregory A" or "Gregory B" as having been appropriated from the "Grover," and no reasonable jury could differ in this assessment. Accordingly, this is one of those rare instances where summary judgment is appropriate. Notwithstanding the foregoing, the Court finds that a jury issue exists as to the following: (1) whether the houses built by the Brock Defendants based on the "Grover" design are substantially similar to the "Grover" design, notwithstanding any significant structural changes made by the Brock Defendants during construction;²² (2) whether the "Grover" drawings and the "Hybrid Grover" drawings are substantially similar; and (3) whether the house²³ built based on the "Hybrid Grover" is substantially similar to the design for the "Grover." An average lay observer could reasonably find that the houses built by the Brock Defendants based on the "Grover" design are substantially similar to the "Grover" design, notwithstanding any changes made by the Brock Defendants during construction. Further, an average lay observer also could recognize the "Hybrid Grover" architectural drawings as having been appropriated from the "Grover" architectural drawings. Finally, an average lay observer could reasonably find that the house built based on the "Hybrid Grover" is substantially similar to the "Grover" design.

22 The Court strains to see how the Brock Defendants could argue that there is no substantial similarity between the original "Grover" drawings and the "Grover" drawings submitted for the homes at 1852 Stanfield Ave, 1880 Perry Blvd, 1534 Gilstrap Lane, and 2145 Collins Dr. The copying of the drawings and substantial similarity between the drawings provide a basis for an infringement claim under 17 U.S.C. § 102(a)(5), irrespective of any changes that may have been made during construction. However, because genuine issues of material fact remain regarding the Brock Defendants' affirmative defenses, partial summary judgment in favor of Plaintiff with respect to these "Grover" drawings is inappropriate.

23 Although Keyfer's Exhibit H-5 shows the "Hybrid Grover" as the plan for 1769 Drew Drive, the house built at 1769 Drew Drive clearly was built using a "Gregory A" or "Gregory B" plan. The Court finds no genuine dispute as to this issue. Accordingly, summary judgment is due to be granted to the Brock Defendants as to whether the house actually built at 1769 Drew Drive infringes on Keyfer's copyright registration for the architectural work. However, insofar as the plan submitted for 1769 Drew Drive was a "Hybrid Grover" plan, the Brock Defendants' request for summary judgment is due to be denied with respect to Keyfer's copyright infringement claim based on the infringement of the technical drawing.

VI.

Mr. Brock's Personal Liability *23 Keyfer moves the Court for summary judgment on the issue of Mr. Brock's personal liability for the alleged infringing activities of the Brock Defendants. Insofar as the Court has determined that genuine issues of material fact remain and that the case must go to trial, the Court likewise finds that a determination with respect to Mr. Brock's personal liability for copyright infringement is premature. CONCLUSION For the foregoing reasons and to the extent set forth herein, the Court DENIES as moot Plaintiff's Motion for Partial Summary Judgment [Doc. No. 88], DENIES as moot the Brock Defendants' Motion for Summary Judgment [Doc. No. 89], DENIES Plaintiff's Amended Motion for Partial Summary Judgment [Doc. No. 97], GRANTS in part and DENIES in part the Brock Defendants' Revised Motion for Summary Judgment [Doc. No. 100], and GRANTS Plaintiff's Motion for Leave to File a Sur-reply to the Brock Defendants' Reply Brief [Doc. No. 110]. SO ORDERED this 29th day of March, 2010.