Thomas v. Artino et al

Filing 54

MEMORANDUM OPINION (c/m to Defendant 8/17/10 sat). Signed by Chief Judge Deborah K. Chasanow on 8/17/10. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JOHN F. THOMAS v. ALAN ARTINO, ET AL. : : : Civil Action No. DKC 2008-2142 : : MEMORANDUM OPINION Presently pending and ready for review in this copyright infringement case are: (1) a cross-motion for partial summary judgment filed by Plaintiff John F. Thomas (Paper 33), (2) a motion for an extension in of time of to respond to Plaintiff's filed by

supplemental

brief

support

summary

judgment

Defendant Alan Artino (Paper 51), and (3) motions to withdraw filed by counsel for Defendant (Papers 47 and 48). The issues

are fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons,

Plaintiff's cross-motion for partial summary judgment will be granted, Defendant's motion for an extension of time will be denied as moot, and Defendants' attorneys' motions to withdraw will be granted. I. Background The relevant facts may be found in the court's last As

memorandum opinion, filed on July 6, 2010.

(Paper 45).

found therein, Plaintiff John F. Thomas has established that protected elements of Plaintiff's copyrighted architectural

plans were copied.

The only remaining element of Plaintiff's

copyright claim is whether Defendant Alan Artino is, as a matter of law, liable for the unauthorized copying. Because the

parties had not addressed the issue of vicarious liability, the parties were directed to submit supplemental memoranda and the court deferred ruling on Plaintiff's cross-motion for summary judgment. Defendants' attorneys' motions to withdraw were also

deferred until after this issue was resolved. (Paper 46). II. Plaintiff's Cross-Motion for Partial Summary Judgment The last memorandum opinion summarized the theory of

vicarious liability: Under that theory, if the defendant possessed the right and ability to supervise the infringing conduct and had an "obvious and direct financial interest in the exploitation of copyrighted materials," he may be liable. Lack of knowledge is not a defense. See 3 Nimmer on Copyright § 12.04 (2010); Nelson-Salabes, Inc. v. Morningside Development, LLC, 284 F.3d 55 (4th Cir. 2002). (Paper 45, at 19). Defendant does not question the law, but instead argues that there are disputes the of material and fact regarding to whether the

Defendant

possessed

right

ability

supervise

infringing conduct and had an obvious financial interest in the 2

exploitation

of

Plaintiff's

copyrighted

architectural

plans.

(Paper 52, at 4).1 establish as a

The following undisputed facts, however, of law that Defendant is vicariously

matter

liable for copyright infringement.

Defendant owned the home A

located at 411 Valley Brook Drive, Silver Spring, Maryland.

copy of Plaintiff's architectural plans was obtained from the Montgomery County Department of Permitting Services and paid for with a check from Defendant's company, Alan Artino, LLC.

Defendant's home was remodeled in accordance with those plans, as evidenced by the County's inspection records. As the owner of the home that was being remodeled,

Defendant had the right and ability to supervise the work that was done on it. he Defendant had the argues that this fact to does not the

establish

that

right

and

ability

control

infringing activity, i.e., the copying of the drawings.

He also

argues that the use of a corporate check for an activity that was outside the scope of the stated corporate purpose somehow insulates him from liability. The only inference available from

the fact that Defendant owned the home and the business whose check was used to purchase the drawings is that Defendant had
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Defendant filed consent motions to extend the time to respond to Plaintiff's supplemental brief in support of his cross-motion for summary judgment to August 27. (Papers 50 and 51). Defendant responded only slightly after the initial deadline, and the motions will be granted nunc pro tunc. 3

the right and ability to control, whether he exercised such right being irrelevant. Furthermore, Defendant had an obvious and direct financial interest in using Plaintiff's building plans because the copy of the plans was used to obtain a building permit for the remodel and his home was actually remodeled using that building permit. At a minimum, Defendant had a financial interest in exploiting Plaintiff's plans because he did not have to pay an architect to draw plans to remodel his home. The legal conclusion that a

separate claim for unjust enrichment is unavailable is, again, irrelevant to the analysis. Furthermore, the absence of a

quantification in the increase in the home's value before and after the remodeling is immaterial. The test is whether he had

a financial interest in the alleged exploitation, and, here, the homeowner clearly did. Therefore, Plaintiff's cross-motion for partial summary judgment will be granted. III. Defendant's Attorneys' Motions to Withdraw Defendant's attorneys, David S. Taylor and Matthew Stavish, renew their motion to withdraw as his counsel (Paper 48) and Defendant's other attorney, David J. Kaminow, moves to withdraw for the same reasons. (Paper 47). Defendant's attorneys have

fulfilled the requirements of Local Rule 101.2 (a) and (b), and

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now that the issues relevant to the litigation up to this point have been resolved, their motion to withdraw will be granted. IV. Conclusion For the foregoing reasons, Plaintiff's cross-motion for

partial summary judgment will be granted, Defendant's motion for an extension of time will be denied as moot, and Defendants' attorneys' motions to withdraw will be granted. Order will follow. /s/ DEBORAH K. CHASANOW United States District Judge A separate

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