Meltzer v. ZollerMeltzer v. Zoller
- Reporters:
- , ,
- Before:
- Whipple
This is an action for infringement of a claimed copyright in the architectural plans for plaintiff’s house in Livingston, New Jersey. Jurisdiction is invoked pursuant to
The case was tried to the Court sitting without a jury during five (5) days in April and May, 1981. At the end of the plaintiff’s case, defendants moved to dismiss, and the Court reserved decision. Neither defendants nor third party defendants presented witnesses. All parties submitted trial briefs and written summations, as well as proposed findings of fact and conclusions of law. After careful consideration of all the testimony, exhibits, memoranda, and oral arguments, the Court hereby adopts the following findings of fact and conclusions of law.
FINDINGS OF FACT
Plaintiff Harvey R. Meltzer is an attоrney at law in the District of Columbia who appeared pro se in this matter. In the spring of 1977, plaintiff and his wife, who resided at that time in Maryland, contacted Doris Gelvan, a real estate agent in New Jersey, regarding the purchase of a home in New Jersey. Ms. Gelvan initially showed plaintiff and Mrs. Meltzer pre-existing homes for sale. After viewing a few resale homes, the Meltzers decided to investigate having a new home built. Thereupon, on or about June 27, 1977, Doris Gelvan brought plaintiff to meet Mr. Robert V. Doran, a defendant-third party plaintiff in this action, for the purpose of discussing the construction of a single family residence to be located in Livingston, New Jersey. Mr. Do-ran was the vice president of Xenco, Inc. (hereinafter referred to as “Xenco”), a New Jersey corporation which constructs private homes, as well as vice president of Deerco, Inc., a corporation which purchases land for future sale, and Mitschele Construction Corp., a New Jersey corporation engaged in the preparation of land for the construction of homes. 1
The Meltzers explained to Mr. Doran that they basically wanted a four bedroom, center hall colonial. Mr. Doran indicated that Xenco would commission an architect to prepare the architectural plans for the construction of plaintiff’s home. At this time, the Meltzers indicated that they had only $2,000.00 to expend. Mr. Doran thereupon agreеd to accept a check from the Meltzers for $500.00 payable to Xenco to defray at least a portion of the cost to Xenco for the preparation of the architectural plans should a contract between plaintiff and Xenco not be consummated. It was understood that if a contract were signed, the $500.00 would be credited toward the total purchase price; but, should a contract not be signed, Xenco would absorb the architect’s fees in excess of $500.00. Accordingly, plaintiff presented Mr. Doran with a check payable to Xenco, Inc. in the amount of $500.00. Plaintiff had no further discussions with any representative of Xenco concerning the cost of the architectural plans.
Subsequently, Mr. Doran brought plaintiff, along with Mrs. Meltzer and Doris Gel-van, to the office of Matthew Zito, an architect associated with the architectural firm of William Chirgotis (hereinafter referred to as “Chirgotis”). This architectural firm operated as an independent contractor. At this meeting, Mr. Zito and the Meltzers engaged in a general consultation regarding the design and type of house in which the Meltzers were interested. Mr. Zito proceeded to prepare some schematic sketches based upon Chirgotis plans previously designed, but adjusted according to the Meltzers’ stated requirements. 2
The evolution of the plans for the Meltzer home progressed during the month of July, 1977. Mr. Zito coordinated his designs with plaintiff’s desires as expressed in part in plaintiff’s thumbnail drawings. Plaintiff and Mr. Zitо conferred on various occasions regarding plaintiff’s desires, and Mr. Doran was advised of any changes made in the plans. The plans upon which construction of the Meltzer home was ultimately based-incorporated Mr. Zito’s work as well as suggestions of Mr. Doran, the requirements of the Meltzers as derived in part from plaintiff’s sketches, and the designs of the stock plans for the Chateau Gaye and Eastbrooke, products of the Chirgotis firm. 3 Annotations to these two latter designs appear on the preliminary plans dated “7/77”. Indeed, the contract between Xenco and plaintiff dated September 30, 1977 specifically states that the exterior of plaintiff’s home “shall be substantially similar to a home designated the Chateau Gaye as prepared by William G. Chirgotis.”
The Chirgotis firm considered the architectural plans for the Meltzer home to be stock plans; part of the inventory of architectural drawings in which the architect claims ownership and which he is free to utilize as he deems .appropriate. This understanding stemmed from the practice of the architectural profession as well as the prior business dealings between the Chirgotis firm and Xenco over the course of at least fifteen years. 4 Placement of the Meltzer name in the title block on the plans where the name of the client or commissioning party, in this case, Xenco, is usually put, does not affect the superior proprietаry interest of the Chirgotis architectural firm in the plans. 5
On September 30, 1977 plaintiff entered into a contract with Xenco for the construction of a residential home located at 4 Drummond Terrace, Livingston, New Jersey. The purchase price of the Meltzer home was $140,700.00. At the time of execution of this real estate contract, the Meltzers had available only $1500.00. 6 The contract therefore provided that upon execution, the Meltzers would pay Xenco $2000.00, $500.00 of which had already been paid. An additional $12,000.00 was to be paid within two weeks. Accordingly, on the date of execution the Meltzers remitted to Xenco a check in the amount of $1500.00, but not until November 9, 1977, did they pay the additional $12,000.00.
On May 3, 1978, plaintiff went to settlement on the Meltzer home. Mr. Doran subsequently requested access to the Meltzer home to show prospective clients the workmanship on a finished Mitschele-Xenco product, and because the Meltzer home “was always so clean and it showed well.” (Tr. 2.6, 16 — 22). The Meltzers granted Do-ran permission and he eventually brought over approximately eight or ten couples.
On or about February, 1979, defendants Mr. and Mrs. Meir Zoller contacted Mr. Doran concerning the construction of a single family dwelling. On February 11, 1979, Mr. Doran telephoned plaintiff to request access to the Meltzer home for the Zollеrs, but was told that it was not convenient. Subsequently, Mr. Zoller visited plaintiff to ask if he could see the Meltzer residence, and later that same day, the Zollers were admitted into the Meltzer home. 10
The Zollers determined to build a home for themselves in Livingston substantially similar to the Meltzer home, and invited the Meltzers to their home to advise them of this intention. Plaintiff was upset by this news and conveyed his unhappiness to Mr. Doran; nevertheless, he conceded that if certain changes in the Zoller home would be made, he had no objections. There were no discussions, however, between the Meltzers and the Zollers concerning any copyright or other proprietary interest in the architectural drawings for the Meltzer home. 11
“A dwelling is to be erected on the subject premises, substantially in accordance with plans of William Chirgotis, architect, known as plan # 77-870, all substantial changes from said plans must be approved by purchaser.” (P — 12, Tr. 3.28).
Plan # 77-870 is the plan for the Meltzer home.
The final Zoller plan contained the name Xenco in the client section of the titlе block, with the annotation “Residence for Mr. & Mrs. Zoller” to the left of the title block. The plans required approximately seven and one-half hours of preparation by Mr. ■Zito. The bill to Xenco, which was for $765.00, referred to the Zoller plans as “stock plans.” The Zoller plans are substantially similar toxthe Meltzer plans, and both are substantially similar to the plans for the Chateau Gaye. 12
On July 10, 1979, plaintiff filed a complaint in the Superior Court of New Jersey alleging copyright infringement of the “Meltzer plans.”
13
The case was dismissed on the grounds of federal preemption; subsequently, plaintiff copyrighted the plans and brought suit in this Court under the Federal Copyright Act,
The defendants have in turn filed third party complaints against William G. Chirgotis and Matthew Zito, alleging, among other things, breach of implied warranty of title pursuant to N.J.S.A. 12A:2-312(3), and. breach of contract. 14
CONCLUSIONS OF LAW
The gravamen of plaintiff’s suit is that defendants conspired to and indeed did copy without authorization the architectural plans for the Meltzer home in which plaintiff alone had copyrightable interest. Plaintiff claims that the copyright interest in the plans vests in him as the author by virtue of the common law work for hire doctrine. Plaintiff also claims ownership in the plans by reason of their being “original in plaintiff”; additionally, plaintiff argues that the prima facie proof of ownership of the plans established by the Copyright Registration Certificate issued in plaintiff’s name has not been rebutted by defendants.
The initial issue for this Court to resolve is which law applies to plaintiff’s claims; the revised Federal Copyright Act of 1976,
The power to provide copyright protection is delegated to the Congress by the United States Constitution. Article 1, section 8, clause 8, of the Constitution grants to Congress the power “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Copyright did not exist at common law but was created by statute enacted pursuant to this Constitutional authority.
See Mazer v. Stein,
Prior to January 1, 1978, the effective date of the revised Copyright Act of 1976, there existed a dual system of copyright protection which had been in effect since the first federal copyright statute in 1790. Under this dual system, unpublished works enjoyed perpetual copyright protection under state common law, while published works were copyrightable under the prevailing federal statute. The new Act was intended to accomplish “a fundamental and significant change in the present law by adopting a single system of Federal statutory copyright ... (to replace the) anachronistic, uncertain, impractical, and highly complicated dual system.” H.R.Rep.No.94-1476; 94th Cong.2d Sess. 129-130, reprinted in [1976] 5 U.S.Code Cong. & Ad.News 5745. This goal was effectuated through the bed-rock provision of
(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by Section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
Three general areas left unaffected by the preemption are listed in the numbered clauses of subsection (b) of
The plans created in connection with the Meltzer home were unpublished as of the effective date of the revised Titlе 17. Therefore, any copyright interest in these plans was initially determined by common law. Nevertheless, the plans utilized in connection with the Zoller home were not created until after the effective date of the revised Copyright Act, so that any possible cause of action for copyright infringement arose only after that date. Hence, the new Act governs this action.
Strout Realty, Inc. v. Country 22 Real Estate Corporation,
The revised Federal Copyright Act of 1976 provides that statutory copyright in a work “vests initially in the author or authors of the work.”
[T]he employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.17 U.S.C. § 201(b) .
Not every work prepared by an independent contractor on special order or commission is considered the equivalent of a “work made for hire.” Rather, the only “works made for hire” are those which fall within one of the statutory categories set forth in
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audio-visual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work madefor hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forwards, afterwards, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. (Emphasis added.)
[4; 5] As a rule, “[a statutory] definition which declares what a term ‘means’ . . . excludes any meaning that is not stated.” 2A C. Sands, Statutes and Statutory Construction § 47.07 (4th ed. Supp. 1978), cited in
Colautti v. Franklin,
In the instant case, plaintiff argues that the architectural plans of the Meltzer home are commissioned works for hire of which he is the author. However, plaintiff may not take advantage of the works for hire doctrine of authorship since architectural plans do not fall within one of the statutorily prescribed categories of work. Nor does there exist the requisite express written agreement between plaintiff and the architect designating the architectural plans as a work made for hire.
Even under the common law works for hire doctrine, plaintiff is not the author of the plans for his house. At common law, the work for hire doctrine initially applied only to the employer-employee relationship, although it was expanded in some jurisdictions to include commissioned works.
See generally,
1 Nimmer on Copyright,
supra,
§ 5.03[B] at 5-12 to 5-19. And, a line of cases developed which held that the works for hire doctrine, as articulated in the 1909 Copyright Act,
In such cases, whether copyright initially vested in the independent contractor preparing the work on commission or in the commissioning party always turned on the intention of the parties where such could be ascertained. If the intention of the parties was not expressly articulated, copyright was presumed to vest in the commissioning party. Brattleboro Publishing Co. v. Winmill Publishing Co., supra, at 567 (applying 1909 Act). This presumption was rebut-table, and evidence of custom of the industry or pattern of dealings may establish an agreement to the contrary. May v. Morganelli-Heumann & Assoc., supra at 1368-69; see generally 1 Nimmer on Copyright, supra § 5.03(B)(2)(c) at 5-20, 5-22.
In the instant case, there is no agreement explicitly articulating the intention of any of the parties regarding who owns any copyright interest. Accordingly, the presumption that the parties mutually intended copyright to vest in the commissioning' party becomes operable absent any persuasive evidence to the contrary. The record does not establish, however, that plaintiff is the commissioning party, despite his input in the plans. To the contrary, the evidence demonstrates that it is Xenco which commissioned the architectural plans for the Meltzer house. Plaintiff never engaged in any conversation with the architectural firm of Chirgotis regarding payment for, ownership of, or copyright interest in the architectural plans in question. Rather, the Chirgotis firm considered that its services were engaged by Xenco, with which it had an oral understanding in conformity with fifteen years of prior dealings. At no time did the Chirgotis firm consider that it had a contract with the Meltzers, notwithstanding the placement of the Meltzer name in the title block of the plans and the control over modification in the plans that plaintiff purportedly exercised. Indeed, all monies received by the Chirgotis firm for thesе plans were paid by Xenco, not plaintiff. Accordingly, as it is Xenco, and not plaintiff, who is the commissioning party, plaintiff cannot establish copyright interest in the plans even under the common law or the 1909 Act.
And in any event, the presumption that copyright interest vested in the commissioning party was overcome here by evidence that the parties intended for the architect to retain copyright interest in the plans. Not only is it the custom of the architectural profession that architects retain ownership of plans unless an express agreement to the contrary exists, but also it is in keeping with the prior dealings of Xenco and the Chirgotis firm as developed over fifteen years for the architеctural firm to retain ownership of the plans unless otherwise explicitly agreed. Indeed, the charge for the Meltzer house plans was predicated upon the assumption that such plans would be reusable by the architect at will. And, in accordance with this understanding, Chirgotis retained the original plans. Consequently, the presumption of ownership by the commissioning party has been overcome in favor of ownership by the architectural firm. 20
Having determined that plaintiff may not prevail as author of the plans and therefore owner of any copyright interests therein by virtue of the work for hire doctrine in either its current statutory expression, the common law, or the pre-existing 1909 Act, the Court now turns to plaintiff’s cоntention that he is owner of the plans as they are “original in him.” Plaintiff’s Trial Summary pp. 12-13. Again, this Court finds that this contention is without merit.
True, plaintiff prepared sketches illustrating in some detail features of the house which he and his wife required, and presented such sketches to the architect,
We designed the structure. We incorporated the Meltzers’ requirements, many specific details they had required in certain areas, bedrooms had nooks and crannies that would accommodate specific furniture. They had specific window requirements. They had little thumbnail sketches that they afforded us as to location of lighting fixtures in certain rooms and switching thereof. That type of input. We worked with them hand-in-hand. But no, we didn’t scribe the building, no. (T. 3.46, 22 to T. 3.47, 5) 22
The Chirgotis firm, by fixing the ideas for the Meltzer home in a tangible medium, “created” those plans, for pursuant to
Nor can the plaintiff be considered a “joint author” of the plans with the Chirgotis firm. Under the 1976 Act, a joint work is one “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”
For all of the foregoing reasons, this Court finds that plaintiff’s claims of copyright infringement against each and every one of the defendants must be dismissed as a matter of law. 24
Notes
. These three corporations are also defendants and third party plaintiffs in the instant action.
. Plaintiff had prepared “thumbnail” sketches indicating his requirements; it is uncertain, however, when these sketches were shown to Mr. Zito. Contrary to the testimony of plaintiffs wife, Mr. Zito testified that he was not shown these sketches at the initial meeting.
. To quote Mr. Zito: “The design (of the Meltzer home) is from my mind, through my hand, my hand and then it goes to draftspeople.” (Tr. 3.14, 3-4). And later, "The Meltzer plans, yes, they came from the Chateau Gaye was the base — was the footprint that we started with.” (Tr. 3.39).
. As Mr. Zito testified on cross examination regarding the plans for plaintiffs home: “The drawings are plans I prepare, are instruments of service. And we are providing a design, with our design ideas, and the drawings after they are completed are used to construct, his residence. And the drawings themselves are property of me or our firm .... Upon completion of the Meltzer home,’yes. I would consider them another stock plan in my library plans.” (Tr. 3.36, 3.40).
. In this regard,. Mr. Zito testified on cross examination that Mr. Doran had mentioned to the Chirgotis office manager that he desired the Meltzer name to be on the title block in lieu of Xenco, the commissioning party.
. Plaintiffs wife testified that AT&T, plaintiffs еmployer, agreed to make available to plaintiff $50,000 to cover relocation expenses; however, the record demonstrates that this money was not available at the time the construction contract was executed.
. The only purpose for retaining original plans is for duplication. Mrs. Meltzer testified that during the period of construction, she discovered that every subcontractor had a copy of the plans, and that when she requested of Mr. Doran to return the plans, he advised that he would do so. She further testified that plaintiff was present on many of the occasions when these requests were made. The credibility of this testimony is undercut, however, by Uncontested Fact 30 in the Pretriаl Order of December 11, 1980, which states:
30. The plaintiff cannot recall whether prior to the institution of litigation he ever requested that Xenco, or any representative thereof, return copies of any plans of the Meltzer home which might be in their possession.
Litigation was not instituted until July 10, 1979.
. Mr. Zito testified that when a client purchases a set of plans of which they seek to retain exclusive use, the Chirgotis firm would insert a paragraph in the contract with the client to the effect that the plans in question would never be reused or reproduced for another structure without the client’s written consent. No contract existed between the Chirgotis firm and the Meltzers, since Xenco was the commissioning party. At the same time, the agreement between the Chirgotis firm and Xenco was an oral contract and contained no such understanding as to exclusivity.
. According to Mr. Zito’s testimony, the Meltzer plans were stock plans, not custom plans. While the charge for custom plans is a percentage for the total cost of the home, excluding land, the charge for stock plans, such as the Meltzer plans, is determined according to an oral understanding with the developer (Mr. Do-ran) on an hourly fee basis times a multiplier, or two and one-half times the actual drafting cost. This fee is predicated on the assumption that the architect will be able to use the plans again.
. Mrs. Meltzer testified that before showing her home she obtained assurances from Mr. Zoller that he would not duplicate the home. In contrast, Mr. Zoller set forth in his affidavit that no such promises or assurances were ever made to the Meltzers. (P-Exh. 19-A).
. Mr. Zito never agreed with plaintiff or his wife not to utilize the plans for the Meltzer home for the erection of any other home; indeed the matter was never discussed. When the Court queried whether the Meltzers had ever told Mr. Zito not to use these plans, Mr. Zito responded, “No sir.” (Tr. 3.28-3.29).
. The parties do not seriously dispute the similarity of these three plans; nevertheless, there is a question as to the extent of such similarity. Plaintiff insists that the Zoller plans are identical to the Meltzer plans, which, he argues, in turn are significantly different from the Chateau Gaye plans. In contract, Mr. Zito testified that while both the Zoller and Meltzer plans derived from the same basic “footprint” of the Chateau Gaye, the two homes are not identical. As will be explained infra, the Court finds that the resolution of this issue is not germane to the disposition of the case.
. In this regard, Uncontested Facts paragraphs 15 and 16 of the Pretrial Order of December 11, 1980, state:
15. At no time prior to the institution of litigation, did Mr. Meltzer request that the architectural firm of William G. Chirgotis
give him the original architectural drawings used in the construction of the Meltzer home.
16. Prior to the institution of a lawsuit in the Superior Court of New Jersey on July 10, 1979, the plaintiff had not advised Matthew R. Zito, or anybody associated with the architectural firm of William G. Chirgotis, that he claimеd either exclusive ownership of the architectural drawings for the Meltzer home or a copyright thereon. There was no discussion between the plaintiff and Matthew R. Zito, or anyone else associated with the architectural firm of William G. Chirgotis that the plans would be utilized exclusively for the Meltzer home.
. The direct claims by plaintiff against the third party defendants have been settled.
. It is unclear whether plaintiff relies on the common law or the Copyright Act of 1909. In view of the conclusions of this Court, however, a discussion of this issue would be academic.
.
See also
Pub.L. No. 94-553, § 112, 90 Stat. 2600 (1976),
“All causes of action that arose under (the former) Title 17 (Act of 1909) before January 1, 1978 shall be governed by Title 17 as it existed when the cause of action arosе.”
Indeed, Congress recognized that
“The preemption of rights under State law is complete with respect to any work coming within the scope of the bill, even though the scope of exclusive rights given the work under the bill is narrower than the scope of common law rights in the work might have been.
H.R.Rep. No. 94 — 1476, 94th Cong. 2d Sess, 131, reprinted in [1976] 5 U.S.Code Cong. & Ad. News 5747.
. The First and Second Circuit courts have also implied that
. Plaintiffs assertion that
. The Court of Appeals in May v. Morganelli —Heumann & Assoc., in determining a case of copyright infringement regarding architectural plans under the works for hire doctrine, indicated that it hesitated to apply the 1976 Act retroactively for fear of Constitutional problems. In that case, as in the instant case, application of the new Act would annul plaintiffs claims. The May court did not have to determine whether the new Act applied because neither party had raised the issue. Nevertheless, this Court notes that the cause of action in the May case arose before the effective date of the new Act, whereas in the instant case, the cause of action arose after that date. This fact changes the complexion of the case and obviates any due process concerns.
. Of course, Xenco and Mr. Zito of the Chirgotis firm agree that the latter is the owner of the plans for the Meltzer home.
. Mrs. Gelvan testified that plaintiff was especially interested in the Chateau Gayе plan which Mr. Zito showed to him at their initial meeting and that the layout of the Meltzer home plans is virtually the same as that of the Chateau Gaye. (Tr. 4.58-21 to 59-21). In this regard, Mr. Zito testified that the “fenestration of the Meltzer house is a combination of the Chateau Gaye and Eastbrooke.” (Tr. 3.47, 17 to 18).
. In addition, Mr. Zito prepared the majority of the exterior design of the Meltzer home, and determined the pitch of the roof in consultation with his client, Mr. Doran. (Tr. 3.47, 17 to 48, 4).
. Each contributor to a joint work automatically acquires an undivided ownership in the entire work.
Pye v. Mitchell,
. This decision renders irrelevant any discussion of the similarities and differences between the Meltzer and the Zoller plans, or indeed, a determination of any of the other issues raised by any party.