removed FTA’s copyright management information from these drawings in violation of Section
1202(b)(1).^1387
The court granted summary judgment to the defendants on the claim for removal of CMI.
FTA had presented no evidence that any of the defendants removed or directed anyone else to
remove FTA’s CMI. With respect to its claim against Highway Inn, FTA relied on emails,
attached to which were a .jpeg file of a floor plan for the restaurant and a floor color study for the
restaurant. The floor plan and floor color study were both stamped with CMI of the replacement
architect., and the floor color study also referred to Highway Inn. The court ruled that Highway
Inn’s possession of floor plans that FTA claimed were virtually identical to its work did not
mean that anyone from the defendants removed or had anyone remove FTA’s CMI from FTA’s
plans. Virtually identical plans could have been created by redrawing FTA’s plans and not
including FTA’s CMI, but that would not involve any removal or alteration of CMI from FTA’s
original work.^1388
With respect to its claim against Bargreen Ellingson, FTA asserted that, after it was
terminated, Bargreen Ellingson sent CADs out that did not include FTA’s CAD containing its
CMI. But the court ruled that sending out such CADs did not indicate that Bargreen Ellingson
actually removed the CMI from FTA’s work. FTA had not identified a drawing that it created
from which FTA’s CMI information was missing. Even if FTA were correct in contending that
Bargreen Ellingson created its CAD for the kitchen design based on FTA’s work, basing a CAD
on FTA’s CAD was not the same as “removing” CMI from a copyrighted work. The court noted
that the physical act of removal is not the same as basing a drawing on someone else’s work.
The court therefore concluded that reliance on another’s work is insufficient to support a claim
of removal of CMI. Nor could the mere receipt and possession of a copyrighted work that has
allegedly had CMI removed give rise to a violation of Section 1202(b)(1). Although such receipt
and possession might be more consistent with a claim alleging the distribution of a copyrighted
work with knowledge that CMI had been removed, such a claim had not been pled by the
plaintiff.^1389
Finally, the court noted that it had previously ruled that Highway Inn had an implied
nonexclusive license to use FTA’s copyrighted works. Other defendants used and adapted
FTA’s plans within the scope of that implied license. Therefore, even if one or more defendants
removed FTA’s CMI, no defendant could be said to have removed any CMI knowing or having
reasonable grounds to know that the removal would induce, enable, facilitate, or conceal an
infringement of copyright, as required by Section 1201(b)(1). Accordingly, the court granted
summary judgment to the defendants with respect to the claim under Section 1201(b)(1).^1390
(^1387) Id. at 1-10.
(^1388) Id. at 12-14.
(^1389) Id. at 15-20.
(^1390) Id. at 20-22.