                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0025n.06
                             Filed: January 8, 2007

                                                 06-3293

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


JEFFREY A. GRUSENMEYER &                              )
 ASSOCIATES, INC.,                                    )
                                                      )
        Plaintiff-Appellant,                          )
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
DAVISON, SMITH & CERTO                                )    NORTHERN DISTRICT OF OHIO
ARCHITECTS, INC.; WILLIAM R.                          )
DAVISON; RANDALL S. SMITH; and                        )
JEFFREY M. CERTO,                                     )
                                                      )
        Defendants-Appellees.                         )




      Before: DAUGHTREY and McKEAGUE, Circuit Judges, and REEVES,* District
Judge.


                PER CURIAM. In this action for copyright infringement, plaintiff Jeffrey A.

Grusenmeyer & Associates, Inc. (Grusenmeyer), an architectural firm, appeals from the

district court’s grant of summary judgment to defendant Davis, Smith & Certo Architects,

Inc., and to its principals, William R. Davison, Randall S. Smith, and Jeffrey M. Certo

(collectively, DSC Architects). Grusenmeyer also challenges the district court’s denial of

its own motion for summary judgment, contending that although the architectural drawings



        *
         The Hon. Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
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at issue merely documented existing conditions, they were sufficiently original to merit

copyright protection; that the defendants were not licensed to use these drawings; that the

defendants’ use of the drawings was not permitted by the fair use doctrine; and that the

individual defendants are subject to vicarious liability for the infringement. The district court

held that the drawings were not sufficiently original to be protected by copyright and that,

in any event, the defendants were entitled to their use under the terms of the plaintiff’s

contract with a third party. Because we conclude that the district court correctly determined

that the defendants’ use was permitted by contract, we affirm the court’s grant of summary

judgment to the defendants.


                   I. FACTUAL AND PROCEDURAL BACKGROUND


       The record indicates that this case arose from a “request for proposal” from

Magnificat High School for the development of a master plan to expand the school.

Several architectural firms responded to the request, and Grusenmeyer was selected for

the project. The owner of the Grusenmeyer firm, Jeffrey Grusenmeyer, subsequently

drafted a two-page letter agreement setting out the details of a “proposed master plan and

facilities study.” Sister Carolyn Marshall, the high school’s president, signed the agreement

for Magnificat.


       The contract provided that Grusenmeyer would: (1) “[r]eview the existing facility’s

conditions” and make maintenance and improvement recommendations accordingly, (2)

“[r]eview and develop a program for capital improvements,” and (3) “[p]rovide a master plan

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for the implementation of the capital improvements program, including plans, renderings,

and perspectives suitable for use in presentation and future reference during master plan

implementation.” (Emphasis added.) Magnificat agreed to provide Grusenmeyer with

“[o]riginal drawings of the building and site” and to pay a fee based on hourly rates, “not

[to] exceed $15,000, with the first $2,000 of architectural services provided on a donated

basis.”


          In developing the master plan, Grusenmeyer prepared a new set of drawings of the

existing conditions of the property using a computer program. The resulting computer files

combined information taken from the existing drawings and blueprints that Magnificat had

provided to Grusenmeyer and the firm’s own field measurements. Grusenmeyer registered

these renderings with the U.S. Copyright Office, both as an “architectural work” and as a

“technical drawing.”


          Jeffrey Grusenmeyer testified that these drawings and files were created “[s]eparate

and apart from the requirements of th[e] contract,” with the hope that Grusenmeyer “would

later be the successful bidder to design the performing arts center.” Although Jeffrey

Grusenmeyer insisted that the electronic drawings were made for personal use and not for

Magnificat, he also conceded that Magnificat “paid for portions of the services [used] in .

. . creating [them]” and acknowledged that he had later given a copy of the electronic files

to Don Koma, Magnificat’s facility director, purportedly for Koma’s “personal use.” Counsel

for Grusenmeyer was asked at oral argument on appeal whether the electronic files in


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question were attached to the master plan that was turned over to Magnificat. He indicated

that he could not say with certainty one way or the other, but the district court explicitly

found that it was “undisputed that Plaintiff provided Magnificat with existing conditions

drawings.”


       After Grusenmeyer completed the master plan for the expansion project, Magnificat

sent out another “request for proposal,” this time for the development of the performing arts

building anticipated, but not fleshed out, by the master plan. Grusenmeyer submitted a

proposal for this project, but it was awarded to another bidder, defendant DSC Architects.

Marshall then provided DSC Architects with existing drawings of the site in a variety of

forms, just as she had Grusenmeyer. The electronic files with the disputed drawings were

also among the materials supplied to DSC Architects, in response to its standard request

for copies of existing documentation of “built conditions.” According to Marshall, it was

accepted protocol for the school to provide this background information about existing

structures once a project had been awarded.


       DSC Architects referred to these materials in developing its plans for the performing

arts center and later acknowledged that the drawings it developed to show the location of

its proposed construction contained content from the files created by Grusenmeyer,

including portions of the electronic drawings at issue here, which were inserted into the

defendants’ own electronic drawings. DSC Architects also did its own field work to

supplement these drawings, in some cases correcting inaccuracies on the electronic files,


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and it referenced supplemental materials, including other extant drawings of existing

conditions provided by the school.


       According to the individual DSC architects, such reliance on drawings of existing

conditions created by others is routine in the industry. For example, Certo, the firm’s

secretary, testified that although he knew that these files had been created by

Grusenmeyer, he had no hesitation about using them because such use is “a common

practice.” He testified that “[f]iles are exchanged in the profession routinely when work is

being added to a facility, revised in a facility, [or] renovated” and that it is accepted practice

to do so without first seeking permission where the drawings utilized merely document

existing conditions. Davison echoed this view, adding that he had often provided other

architects with background drawings that he had created for use in their own projects. He

also remarked that before computer files were used to create drawings, architects would

simply trace existing drawings.


       The district court granted summary judgment to the defendants and denied

summary judgment to the plaintiff, finding that the drawings in question were not sufficiently

unique to merit copyright protection and, alternatively, that their use was authorized under

the contract between Grusenmeyer and Magnificat. Because the court found that the

contract was unambiguous as a matter of law, it declined to take into consideration Jeffrey

Grusenmeyer’s testimony concerning his understanding of its terms. Grusenmeyer now

appeals that determination.


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                                     II. DISCUSSION


       We review a district court’s grant or denial of summary judgment de novo. See

Thomas v. Cohen, 453 F.3d 657, 660 (6th Cir. 2006). Summary judgment is proper where

“the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” FED . R. CIV. P. 56(c).

A genuine issue of material fact exists when, “view[ing] the factual evidence and draw[ing]

all reasonable inferences in favor of” the nonmoving party, sufficient evidence exists for a

trier of fact to find for that party. Summers v. Leis, 368 F.3d 881, 885 (6th Cir. 2004)

(citation omitted). However, introducing a “mere scintilla of evidence is insufficient” to

withstand summary judgment, id., and “[t]he nonmoving party may not rest on his

pleadings, but must come forward with evidence from which a rational trier of fact could

find in his favor,” Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 621 (6th

Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).


       Where a party has used copyrighted material with permission, a finding of

infringement is precluded. See Johnson v. Jones, 149 F.3d 494, 500 (6th Cir. 1998). The

defendants argued, and the district court agreed, that notwithstanding any otherwise valid

copyright protection, the contract between Grusenmeyer and Magnificat permitted DSC

Architects to use the drawings. More precisely, the defendants argued that Grusenmeyer’s

agreement to “[p]rovide a master plan for the implementation of the capital improvements


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program, including plans, renderings, and perspectives suitable for use in presentation and

future reference during master plan implementation” permitted the use of the drawings at

issue here, insofar as the defendants undertook to implement the master plan.


       Grusenmeyer argues on appeal that in adopting the defendants’ theory of the

contract’s coverage, the district court overlooked the provision that Grusenmeyer’s services

would be rendered in accordance with American Institute of Architect’s “Abbreviated Form

of Agreement Between Owner and Architect.” Although Jeffrey Grusenmeyer conceded

that the form agreement was not appended to the actual contract or otherwise supplied to

Magnificat, he relied on Section 6.1 of AIA’s form agreement to establish his exclusive

retention of rights in the disputed drawings. That section of the form agreement provides:


       The Drawings, Specifications and other documents prepared by the Architect
       for this Project are instruments of the Architect’s service for use solely with
       respect to this Project, and the Architect shall be deemed the author of these
       documents and shall retain all common law, statutory and other reserved
       rights, including the copyright. The Owner shall be permitted to retain
       copies, including reproducible copies, of the Architect’s Drawings,
       Specifications and other documents for information and reference in
       connection with the Owner’s use and occupancy of the Project. The
       Architect’s Drawings, Specifications or other documents shall not be used by
       the Owner or others on other projects, for additions to this Project or for
       completion of this Project by others . . . except by agreement in writing and
       with appropriate compensation to the Architect.


       The district court rejected the plaintiff’s interpretation of the provision. Looking to

the final sentence, the court emphasized the fact that Section 6.1 permitted “others, such

as Defendants, [to] use Plaintiff’s work if agreed to in writing and accompanied by


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appropriate compensation.” Having found that the record established both a written

agreement between Grusenmeyer and Magnificat and appropriate compensation running

to the former from the latter, the district court held that the AIA provision buttressed the

defendants’ motion for summary judgment rather than the plaintiff’s.


       We agree with this interpretation and with the district court’s substantive ruling on

the effect of the explicit contractual provisions, the “plain language” of which the court said


       called for Plaintiff to prepare a master plan “for the implementation of the
       capital improvements program, including plans, renderings and perspectives
       suitable for use in the presentation and future reference during master plan
       implementation.” As provided in the contract, the program for capital
       improvements included the building of a “Fine Arts/Band Practice/Auditorium
       type space[ ].” It is undisputed that Plaintiff provided Magnificat with existing
       conditions drawings, and that those drawings were used in connection with
       the development of the Performing Arts Center at Magnificat. As such, the
       existing conditions drawings fall within the scope of Plaintiff’s responsibilities
       under the contract, for which Magnificat paid Plaintiff approximately $15,000.
       It is consistent with logic that drawings of existing conditions would be
       necessary for the implementation of the capital improvements program and
       would therefore be included within Plaintiff’s responsibilities under the
       contract. Equally logical is the fact that such drawings may be used in the
       implementation, in return for the compensation that Magnificat paid to
       Plaintiff.


       We agree with the district court’s conclusion that, contrary to the plaintiff’s

assertions, the contract permits the use, as described, of the materials developed under

it. Otherwise, the contract provision stating that Grusenmeyer would “[p]rovide . . . plans,

renderings, and perspectives suitable for use and future reference during master plan

implementation” would be meaningless.

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       We find Grusenmeyer’s remaining arguments concerning the meaning and scope

of its contract with Magnificat equally unavailing. The plaintiff argues, for example, that the

individual defendants’ use of the drawings is not permitted under the terms of the contract

because they are not expressly named in the contract, an argument that borders on the

absurd. If we were to accept this view, we would have to hold that while the contract would

permit Magnificat itself to use the materials developed by Grusenmeyer in implementing

the master plan, it would not allow any of the professionals that the school hired to do so.

But, obviously, Magnificat never intended to complete the ultimate project contemplated

in the contract – that is, to design and build a performing arts center – on its own and

without the help of professionals. Indeed, Jeffrey Grusenmeyer recognized as much from

the beginning, testifying that “the members of my firm created architectural drawings

depicting building floor plans and site plans of the then existing Magnificat campus, hoping

that we would later be the successful bidder to design the performing arts center.”


       We also reject the plaintiff’s insistence that our opinion in Johnson mandates a

reversal of the district court’s order, because we conclude that the facts in that case are

fundamentally distinct from those now before us. In Johnson, we were not called upon to

interpret a written contract but to determine the intentions of an architect and his client who

had never reduced their agreement to writing. See id. at 497-99. In the absence of an

express agreement, the issue was whether the architect had granted an implied license to

use his work, which required discerning his intent based on the totality of the

circumstances. Id. at 500-02. Obviously, no such task presents itself in this case because

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the agreement was not only in writing but was also, as the district court correctly found,

unambiguous.


                                   III. CONCLUSION


      Because we agree with the district court’s determination that the contract between

Grusenmeyer and its client, Magnificat High School, permitted the defendants to use the

plaintiff’s drawings for the very purposes to which those drawings were put, we find it

unnecessary to address the other issues raised on appeal, including the suitability of the

drawings for copyright protection and the applicability of the fair use doctrine. The order

of the district court awarding summary judgment to the defendants is, therefore,

AFFIRMED.




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