GRANGER v. ACME ABSTRACT COMPANY, LLC. et al
OPINION. Signed by Judge Noel L. Hillman on 9/27/2012. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CIVIL NO. 09-2119(NLH)(KMW)
ACME ABSTRACT COMPANY, ACME
ROBERT J. LOHR, II, and
2669 SHILLINGTON ROAD
SINKING SPRING, PA 19608
Appearing pro se
MATTHEW GEORGE HAUBER
ROBERT J. LOHR
LOHR & HAUBER, LTD.
1246 WEST CHESTER PIKE
WEST CHESTER, PA 19382
Attorneys for defendants
HILLMAN, District Judge
This matter has come before the Court on defendants’ motion
for summary judgment on plaintiff’s claims that defendants violated
plaintiff’s copyrighted title insurance calculators when they
posted the calculators on their website.
below, defendants’ motion will be granted.
For the reasons expressed
Plaintiff, John Granger, claims that in 2002 he created the
“Pennsylvania Title Insurance Calculator” and the “New Jersey
Insurance Calculator” for use on the internet, and he registered
these works with the U.S. Copyright Office on October 2, 2006.
his complaint, plaintiff contends that in October 2003, defendants
Acme Abstract Company and Acme Abstract, LLC,1 their managing
member, defendant Robert J. Lohr II, and their website designer,
defendant Ralph Shicatano, infringed on his copyrights when his
title insurance calculators were placed on their website, which
advertised their title insurance business.
In May 2006, plaintiff
sent defendants a letter in May 2006 informing them that it had
come to his attention that his copyrighted title insurance
calculators appeared on their website, and he requested that
defendants provide him with a written licensing agreement allowing
them to do so.
“Silence beyond two weeks shall serve as proof that
no written licensing agreement exists” between plaintiff and
(Def. Ex. 1, May 2, 2006, Letter from John Granger to
Lohr attempted to contact plaintiff by telephone and email,
Both companies ceased operating in 2010 due to poor
business and sold all assets in an asset sale. The entities
remain registered in New Jersey and Pennsylvania, but neither
company has a bank account, employees, or assets, and they are
expected to be formally dissolved at the conclusion of this
but plaintiff never responded back.
Defendants removed both
calculators from the website by May 8, 2006.
After not hearing
again from plaintiff for several years, on May 1, 2009, plaintiff
served defendants with his instant complaint, claiming copyright
infringement and other violations, including tortious interference
with prospective economic advantage, fraudulent business practices,
and unfair competition.
Defendants have moved for summary judgment
in their favor on all claims.
Plaintiff has opposed defendants’
This Court has jurisdiction over plaintiff’s federal claims
under 28 U.S.C. § 1331, and supplemental jurisdiction over
plaintiff’s state law claims under 28 U.S.C. § 1367.
Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied
that the materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations,
stipulations, admissions, or interrogatory answers, demonstrate
that there is no genuine issue as to any material fact and that the
During discovery, plaintiff sought sanctions against
defendants for spoliation of evidence because they did not
maintain, and therefore could not produce, their web server logs.
Plaintiff argued that he required those logs to prove his damages
that defendants profited by their customers’ use of his title
insurance calculators. Plaintiff’s motion was denied. See
Docket No. 63.
moving party is entitled to a judgment as a matter of law.
Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such that
a reasonable jury could return a verdict in the nonmoving party’s
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit.
In considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party's evidence “is to be
believed and all justifiable inferences are to be drawn in his
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
Once the moving party has met
this burden, the nonmoving party must identify, by affidavits or
otherwise, specific facts showing that there is a genuine issue for
Thus, to withstand a properly supported motion for
summary judgment, the nonmoving party must identify specific facts
and affirmative evidence that contradict those offered by the
Anderson, 477 U.S. at 256-57.
A party opposing
summary judgment must do more than just rest upon mere allegations,
general denials, or vague statements.
Saldana v. Kmart Corp., 260
F.3d 228, 232 (3d Civ. 2001).
Copyright infringement claims
A copyright automatically exists the moment copyrightable
subject matter is created.
See 2 Melville B. Nimmer and David
Nimmer, Nimmer on Copyright § 7.16[A] (explaining that a
copyright in a work is created at the same instant that the work
itself is created); 17 U.S.C. § 408(a)(2000) (“[R]egistration is
not a condition of copyright protection.”).
required, however, before a copyright infringement action can be
brought in federal court.
See 17 U.S.C. §§ 408, 411 and 37 C.F.R.
Moreover, registration, and the timing of registration, is
important to a copyright holder’s infringement case because it can
provide prima facie evidence of the validity of the copyright, and
shift the burden of proof onto the defendant to prove the
invalidity of the copyright, rather than require the plaintiff to
first prove its validity.
See 17 U.S.C. § 410(c) (“In any judicial
proceedings the certificate of 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. The evidentiary weight to be
accorded the certificate of registration made thereafter shall be
within the discretion of the court.”); Masquerade Novelty, Inc. v.
Unique Industries, Inc., 912 F.2d 663, 667 (3d Cir. 1990) (citation
omitted) (“The presumption flowing from § 410(c) is not an
insurmountable one, and merely shifts to the defendant the burden
to prove the invalidity of the plaintiff's copyrights.”).
In this case, plaintiff claims that he holds two valid,
registered copyrights in both of the title insurance calculators he
Plaintiff also claims that he registered his copyrights
in 2006, which is within five years of their creation in 2002.
Thus, plaintiff contends that his copyrights are presumptively
valid, and it is defendants’ burden to demonstrate their
invalidity, and, if they are valid, that they did not infringe on
his rights from 2003 through 2006.
Plaintiff further contends that
disputed material facts exist as to defendants’ proof to support
their burden, and, accordingly, summary judgment should be denied.
Defendants contest plaintiff’s view of his case on two bases:
(1) Defendants argue that plaintiff created his calculators in
1997, and not in 2002, and, therefore, their registration in 2006
is beyond the five year window.
Because he did not register his
copyrights within five years of registration, he is not entitled to
the presumption of their validity, and he maintains the initial
burden of proof to demonstrate that they are valid; and
(2) Defendants also argue that plaintiff’s copyrights are not
valid because his title insurance calculators are not copyrightable
Defendants explain that title insurance rates are
mandated by the Pennsylvania and New Jersey title insurance rating
bureaus, and those entities provide the tables and calculations to
determine the proper rates.
Defendants contend that plaintiff’s
calculators simply use the tables and rates provided by the
bureaus, and, thus, just as there is only way to calculate the
circumference of a circle, there is only one way to calculate title
insurance rates, and plaintiff has not created any original,
In reply to defendants’ first argument, plaintiff contends
that even though he first created the title insurance calculators
in 1997, the ones he registered in 2006 were created in 2002 with
that year’s title insurance rates.
Plaintiff contends that this
update to the rates essentially created a new copyright in the
updated calculators, and he therefore is entitled to the
presumption of his copyrights’ validity.
As to defendants’ second argument, plaintiff does not dispute
that he used the title rate bureaus’ published rate tables to
create his calculators, or that he cannot hold a copyright in that
He argues, however, that (1) “the design of how the
calculation is effected in source code is copyrightable,” (2)
“merely because [plaintiff] did not publish the tables does not
calculates promulgated rates,” (3) “the rate tables themselves
published in the rate manuals do not contain the equations for the
allegedly ‘only’ way to calculate title insurance rates,” and (4)
“Plaintiff can establish that [he] independently created the
equations for calculating title insurance rates in several
Calculators on the Internet.”3
(Pl. Opp. Br., Docket No. 56 at
The Court finds that even if plaintiff is entitled to the
Plaintiff also argues that the copyrights to his title
insurance calculators have been adjudged to be valid by Judge
Renée Marie Bumb in an infringement case plaintiff brought
against a different title company. Judge Bumb, however, never
made such a finding. In that case, for the purposes of
settlement, defendants conceded liability on plaintiff’s
infringement claims, and Judge Bumb accordingly granted judgment
in plaintiff’s favor, awarding him statutory damages in the
amount of $2,050.00. See Granger v. Infinity Title Agency, Inc.,
Civil Action No. 07-6050 (RMB).
Relatedly, the Court notes that plaintiff has brought at
least 28 copyright infringement lawsuits against other title
insurance companies in New Jersey, Pennsylvania, and New York.
Neither party here represents that any other court has
substantively analyzed the propriety of plaintiff’s copyrights.
Indeed, from this Court’s cursory review of plaintiff’s other
cases, most defendants have conceded liability on the
infringement claims, which has served to preempt his other state
law claims, and entitle plaintiff to minimal statutory damages.
See, e.g., Granger v. Infinity Title, supra; Granger v. Gill
Abstract Corp., 566 F. Supp. 2d 323 (S.D.N.Y. 2008); see also 1.
1:09CV02119 (D.N.J.); 2. 2:07CV02701 (E.D. Pa.); 3. 2:12CV01924
(D.N.J.); 4. 2:10CV04627 (D.N.J.);
5. 5:09CV02763 (E.D. Pa.) ; 6. 1:09CV00510 (D.N.J.);
7. 5:10CV04054 (E.D. Pa.); 8. 5:12CV00877 (E.D. Pa.);
9. 5:11CV01514 (E.D. Pa.); 10. 5:10CV03454 (E.D. Pa.);
11. 5:10CV06941 (E.D. Pa.); 12. 5:11CV01449 (E.D. Pa.);
13. 1:07CV03491 (S.D.N.Y.); 14. 2:06CV04449 (E.D. Pa.);
15. 5:10CV04044 (E.D. Pa.); 16. 1:07CV06050 (D.N.J.);
17. 5:11CV01519 (E.D. Pa.); 18. 5:10CV03442 (E.D. Pa.);
19. 5:10CV04338 (E.D. Pa.); 20. 5:10CV03444 (E.D. Pa.);
21. 1:09CV00511 (D.N.J.); 22. 5:12CV00412 (E.D. Pa.);
23. 5:10CV04043 (E.D. Pa.); 24. 1:11CV02060 (D.N.J.);
25. 5:10CV06944 (E.D. Pa.); 26. 2:10CV01016 (W.D. Pa.);
27. 5:10CV04267 (E.D. Pa.); 28. 5:11CV01482 (E.D. Pa.).
presumption that his copyrights are valid,4 and defendants
therefore have the initial burden of proof to challenge the
presumption of their validity, defendants have sufficiently
demonstrated that plaintiff cannot ultimately prevail on his
The two elements necessary to state a claim for copyright
infringement are: 1) ownership of a valid copyright, and 2) copying
of constituent elements of the work that are original.
Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
(1991); Dam Things from Denmark v. Russ Berrie & Co. Inc., 290 F.3d
548, 561 (3d Cir. 2002) (citation omitted).
The Third Circuit has
instructed that in cases where copyright infringement is at issue,
The Court notes that “a claim to copyright is not examined
for basic validity before a certificate is issued.” Masquerade
Novelty, Inc. v. Unique Industries, Inc., 912 F.2d 663, 667 (3d
Cir. 1990) (citing H.R. Rep. No. 1476, 94th Cong., 2d Sess. 157,
reprinted in 1976 U.S. Code. Cong. & Ad. News 5659, at 5773).
Even with the burden of proof shifted to defendants, the
ultimate burden of persuasion still lies with plaintiff. See
Moore v. Kulicke & Soffa Industries, Inc., 318 F.3d 561, 573 (3d
Cir. 2003) (quoting Keeler Brass Co. v. Continental Brass Co.,
862 F.2d 1063, 1066 (4th Cir. 1988)) (“When a plaintiff
successfully creates a presumption, he not only satisfies his
burden of going forward but also shifts that burden to the
defendant. The defendant then must rebut the presumption to
satisfy his burden of going forward. If the defendant fails to
introduce sufficient evidence to rebut the presumption, the
plaintiff might prevail on the strength of the presumption. When
the defendant introduces sufficient rebuttal evidence, however,
the fact finder then will consider all of the evidence on the
issue. Regardless of these proof schemes, the burden of
persuasion normally remains on the plaintiff for his claim
throughout the trial.”).
a court should first consider whether there has been infringement
by comparing the allegedly infringing works against the original
Dam Things, 290 F.3d at 561.
“Copying is proven by showing
not only that the defendant had access to a copyrighted work, but
also that there are substantial similarities between the two
Id. (citation omitted).
The Third Circuit has further subdivided the test for
“substantial similarity”: (1) the opinions of experts may be called
upon in determining whether there is sufficient similarity between
the works so as to conclude that the alleged infringer “copied” the
work; and (2) the fact-finder is to determine whether a
“lay-observer” would believe that the copying was of protectible
aspects of the copyrighted work.
Id. at 562 (citations omitted)
(explaining that one court has described this second part of the
test as being whether “the ordinary observer, unless he set out to
detect the disparities, would be disposed to overlook them, and
regard their aesthetic appeal as the same” (citation omitted)).
“Not all copying, however, is copyright infringement.”
Publ'ns, 499 U.S. at 361.
Even if actual copying is proven, “the
fact-finder must decide without the aid of expert testimony, but
with the perspective of the ‘lay observer,’ whether the copying was
‘illicit,’ or ‘an unlawful appropriation’ of the copyrighted work.”
Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 207-08 (3d
Cir. 2005) (citations and quotations omitted).
“Phrased in an
alternative fashion, it must be shown that copying went so far as
to constitute improper appropriation, the test being the response
of the ordinary lay person.”
Id. (citations omitted).
In this case, defendants placed title insurance calculators
from unknown origin6 on their website in 2003, where they remained
until May 2006, when they received plaintiff’s letter indicating
that those calculators may be his.
Plaintiff claims that he
found in the public domain.
In order to determine whether defendants copied plaintiff’s
calculators, and that the copying was of the protectible aspects of
that plaintiff claims he originally created in his calculators with
the source code of the calculators found on defendants’ website.
Plaintiff, however, has failed to provide any evidence to prove
that he created original aspects to the title insurance rate
The defendants’ website designer, defendant Ralph
Shicatano, states, “Although I cannot recall exactly on which URL
I discovered the code snippet which eventually became the
underlying function in presenting the title insurance rates on
the Website, I am certain that it was not the commercial website
of a specific title or real estate company, but rather a code
code is commonplace. I am also certain that at no time did I
remove any copyright information whatsoever from the source code
found on the Website, nor did I remove Granger’s name from any
source in connection with this or any other document.” (Docket
No. 54-4, ¶¶ 11-12.)
To support his contention that he created an original work,
plaintiff refers to his certification, wherein he states,
“Declarant independently created the equations and functions for
the New Jersey and Pennsylvania Title Insurance Calculators” and
“Declarant did not copy the exact equations and functions for the
New Jersey and Pennsylvania Title Insurance Calculators from either
the NJLTIRB or TIRBOP [the rate bureaus’] manuals.”
at 58, ¶¶ 12, 13.)
(Docket No. 56
Plaintiff, however, has not supported these
statements with any documentary evidence.
A computer program, whether in object code or source code, is
a “literary work” and is protected from unauthorized copying,
whether from its object or source code version.
Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir.
It is a fundamental premise of copyright law, however, that
an author can protect only the expression of an idea, but not the
See 17 U.S.C. § 102(b); Kay Berry, Inc., 421 F.3d at
This “idea-expression dichotomy” is difficult to apply,
especially in the context of computer programs.
LLC v. Xio Interactive, Inc., --- F. Supp. 2d ---, 2012 WL 1949851,
*5 (D.N.J. May 30, 2012) (FLW) (quoting Lotus Dev. Corp. v. Borland
Int'l, 49 F.3d 807, 820 (1st Cir. 1995)) (“Applying copyright law
to computer programs is like assembling a jigsaw puzzle whose
pieces do not quite fit.”); id. (citing Melville Nimmer, et al.,
Nimmer on Copyright § 2.18[H] (“[A]nalyzing the substantial
similarity of computer programs is especially challenging”)).
result, circuit courts have “developed different tests for how to
separate unprotectible ideas from protectible expression pertaining
to computer software.”
Id. (explaining the merger doctrine and the
“scenes a faire” doctrine).7
The primary goal of whatever test a court employs to determine
if a computer program is copyrightable and has been infringed is to
delineate between the copyrightable expression and the unprotected
elements of the program, then evaluate whether there is substantial
similarity between such expression in the infringing program.
at 8* (discussing the circuit courts’ varying approaches, and
painstakingly comparing the two programs at issue).
In this case, this Court, and ultimately a jury, cannot
undertake the required analysis of plaintiff’s title insurance
The Tetris court explained:
Merger exists when an idea and its particular
expression become inseparable. Kay Berry, Inc. v.
Taylor Gifts, Inc., 421 F.3d 199, 209 (3d Cir. 2005)
(“In some instances, there may come a point when an
author's expression becomes indistinguishable from the
idea he seeks to convey, such that the two merge.”). .
. . “Scènes à faire” (literally meaning a scene that
must be done), applies to expression that is so
associated with a particular genre, motif, or idea that
one is compelled to use such expression.
Tetris Holding, LLC v. Xio Interactive, Inc., --- F. Supp. 2d --, 2012 WL 1949851, *5 (D.N.J. May 30, 2012) (some citations
calculators because plaintiff has not provided any description of
his original source code and how it is copyrightable under the
Moreover, although in receiving his
copyright registrations plaintiff was required to deposit “two
complete copies or phonorecords of the best edition,” plaintiff has
not provided those source code materials which purportedly
supported his registration application.
See 17 U.S.C. § 408(b)(2)
(“[T]he material deposited for registration shall include . . . two
complete copies or phonorecords of the best edition.”).
those materials, it is also impossible to determine whether
plaintiff is seeking to enforce a copyright in the same work that
he deposited with the Copyright Office.
See Gallup, Inc. v. Kenexa
Corp., 149 Fed. Appx. 94, 95 (3d Cir. 2005) (explaining that the
registrant must have deposited the source code upon which the
infringement suit is based).
Defendants have demonstrated that plaintiff has not provided
any evidence for a “lay observer” jury to consider in determining
(1) whether the title insurance calculators contain original,
protectible matter, and (2) whether defendants’ title insurance
calculators copied that protectible matter.
That lack of evidence,
coupled with defendants’ assertions that it did not copy any
original source code attributable to plaintiff, is fatal to
See Moore v. Kulicke & Soffa Industries, Inc.,
318 F.3d 561, 573 (3d Cir. 2003) (explaining that in copyright law,
the ultimate burden of proving independent development by a
preponderance of the evidence remains on the plaintiff); Whelan
Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222,
1231-32 (3d Cir. 1986) (citation omitted) (“As it is rarely
possible to prove copying through direct evidence, copying may be
proved inferentially by showing that the defendant had access to
the allegedly infringed copyrighted work and that the allegedly
infringing work is substantially similar to the copyrighted
work.”); Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Civ. 2001)
(“A party opposing summary judgment must do more than just rest
upon mere allegations, general denials, or vague statements.”).
Accordingly, defendants are entitled to summary judgment on
plaintiffs’ copyright infringement claims.
Plaintiff’s other claims
Plaintiff has also alleged that defendants’ infringement of
his copyrights constituted tortious interference with his
prospective economic advantage, a deceptive business practice, and
unfair competition under the Lanham Act.
Because plaintiff has not
provided sufficient evidence to go to a jury that defendants
inappropriately used and profited from the copyrightable aspects of
his title insurance calculators, plaintiff’s additional claims fail
Accordingly, summary judgment shall be entered in
defendants’ favor on the remainder of plaintiff’s claims.
For the reasons expressed above, defendants are entitled to
summary judgment on all of plaintiff’s claims against them.
appropriate Order will be entered.
Date: September 27, 2012
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.