Falkner v. General Motors - Oppostion To MSJ

Adrian Falkner v. General Motors Company et al, Docket No. 2:18-cv-00549 (C.D. Cal.
Jan 22, 2018), Court Docket
Multiple Documents
Part Description
1 30 pages
2 Supplement Statement of Genuine Issues in Opposition to MSJ
3 Supplement Plaintiff's Evidentiary Objections
4 Declaration Declaration of Adrian Falkner ISO Plaintiff's Opposition to MSJ
5 Declaration Declaration of S. Ryan Patterson ISO Plaintiff's Opposition to
© 2018 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
// PAGE 1
Case 2:18-cv-00549-SVW-JPR Document 32 Filed 07/02/18 Page 1 of 30 Page ID #:186
1 GLUCK LAW FIRM P.C.

Jeffrey S. Gluck (SBN 304555)
2 123 N. Kings Road #6
Los Angeles, California 90048
3 Telephone: 310.776.7413
4 ERIKSON LAW GROUP

David Alden Erikson (SBN 189838)
5 Antoinette Waller (SBN 152895)
200 North Larchmont Boulevard
6 Los Angeles, California 90004
Telephone: 323.465.3100
7 Facsimile: 323.465.3177
8 Attorneys for Plaintiff
10 UNITED STATES DISTRICT COURT

11 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
12
13 ADRIAN FALKNER, an individual; Case No. 2:18-cv-00549-SVW-JPR

14 Plaintiff, Honorable Stephen V. Wilson
15 v. PLAINTIFF’S OPPOSITION TO
MOTION FOR SUMMARY
16 GENERAL MOTORS LLC; and DOES JUDGMENT
1-10 inclusive.
17 Date: July 23, 2018
Defendant. Time: 1:30 pm
18 Courtroom: 10A
19 Plaintiff Adrian Falkner respectfully submits this memorandum in opposition
20 to Defendant General Motors LLC’s (“GM”) Motion for Summary Judgement, Or
21 In The Alternative, Partial Summary Judgment (the “Motion”). GM’s Motion is
22 based on two grounds: (1) that 17 U.S.C. § 120(a) (“Section 120(a)”), a statute
23 permitting photography of works protected by architectural copyrights, represents a
24 complete defense to Plaintiff’s copyright infringement claim and can be established
25 as a matter of law; and (2) that Defendant can conclusively negate the intent element
26 of Plaintiff’s 17 U.S.C. 1202(b) (“Section 1202”) claim for removal of copyright
27 management information (“CMI”).
28
OPPOSITION TO MOTION FOR SUMMARY

JUDGMENT
TABLE OF CONTENTS
1
2
I. INTRODUCTION ................................................................................................................. 1
3
II. GM IS NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S
4 COPYRIGHT INFRINGEMENT CLAIM. .......................................................................... 3
5 A. GM bears a heavy burden.......................................................................................... 4
6 B. Background of Section 120(a)’s architectural photography exception. .................... 4
7 C. As a threshold matter, GM fails to demonstrate the parking garage is an
architectural work. ..................................................................................................... 6
8
1. The definition of “architectural work” excludes utilitarian structures,
9 such as bridges and walkways, that humans “access” but do not
“occupy.” ....................................................................................................... 6
10
2. The definition of “architectural work” excludes non-creative design
11 and “standard features.” ................................................................................ 8
12 3. GM fails to establish that the parking garage or elevator shed are not
just standard features and function-dictated design. ..................................... 9
13
D. Even if the parking garage is an architectural work, Section 120(a) doesn’t
14 apply here because the Mural is not an integral part of the architecture. ................ 10
15 1. The plain statutory language, as well as the legislative history,
shows that Section 120(a)’s exception limits only the copyrights in
16 architectural works. ..................................................................................... 10
17 2. The legislative history compels this interpretation. .................................... 11
18 3. The Ninth Circuit’s Leicester case compels this interpretation. ................. 11
19 4. Plaintiff’s mural had nothing to do with architecture. ................................ 16
20 E. At very least, whether the Mural is part of the architecture is a fact issue. ............ 17
21 III. DEFENDANT IS NOT ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF'S SECTION 1202 CLAIM ............................................................................. 17
22
A. GM fails to provide competent evidence of its asserted lack of intent. .................. 18
23
B. GM’s summary judgment motion also fails because it turns on GM’s
24 witnesses’ credibility, a matter inappropriate for summary judgment. ................... 19
25 1. Summary judgment is inappropriate where credibility is at issue,
especially with regard to reports of a declarant’s state of mind. ................. 19
26
2. GM’s declarations are flimsy and self-serving—and there is good
27 reason to doubt them. .................................................................................. 21
28 3. GM fails to establish Bernstein was not acting as GM’s agent when
i OPPOSITION TO MOTION FOR SUMMARY

JUDGMENT
he took the infringing photograph. .............................................................. 23

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C. Plaintiff is entitled to discovery on GM’s knowledge and intent. ........................... 23
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IV. PUNITIVE DAMAGES COULD BE AVIALABLE ......................................................... 24
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V. CONCLUSION ................................................................................................................... 25
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ii OPPOSITION TO MOTION FOR SUMMARY

JUDGMENT
1 TABLE OF AUTHORITIES
2 Cases
3 Aaberg v. Francesca’s Collections, Inc., No. 17-CV-115 (AJN), 2018 U.S. Dist. LEXIS 50778
(S.D.N.Y. Mar. 27, 2018) .................................................................................................... 23
4
Agence Fr. Presse v. Morel, 934 F. Supp. 2d 547 (S.D.N.Y. 2013) ......................................... 19, 21
5
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................... 20
6
Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) ............................................................. 17
7
Celotex Corp. v. Catrett (1986) 477 US 317, 106 S.Ct. 2548......................................................... 24
8
Columbia Pictures Television v. Krypton Broadcasting, 106 F.3d 284 (9th Cir. 1997) ................. 18
9
Davidson v. United States, 2017 U.S. Claims LEXIS 841.............................................................. 11
10
Deville v. Marcantel (5th Cir. 2009) 567 F.3d 156 ......................................................................... 20
11
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 ................................................................. 6
12
Feltner v. Columbia Pictures Television, Inc., 118 S. Ct. 1279 (1998) .......................................... 18
13
Ferrell v. Harris Ventures, Inc., 812 F. Supp. 2d 741 (E.D. Va. 2011) .......................................... 20
14
Friedman v. Live Nation Merch., Inc., 833 F.3d 1180 (9th Cir. 2016) ........................................... 20
15
Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010) ............................................................... 8
16
Goldstein v. Metro. Reg’l Info. Sys., Inc., No. 15-CV-2400, 2016 U.S. Dist. LEXIS 106735, 2016
17 WL 4257457 (D. Md. Aug. 11, 2016) ................................................................................. 23
18 International Healthcare Mgmt. v. Hawaii Coalition for Health, 332 F.3d 600 (9th Cir. 2003) ... 20
19 Leicester v. Warner Bros., 232 F.3d 1212 (9th Cir. 2000).......................................................... 4, 12

20 Mazer v. Stein, 347 U.S. 201 (1954) ................................................................................................. 4
21 Poe v. Missing Persons, 745 F.2d 1238 (9th Cir. 1984) ................................................................. 17
22 Rivera-Torres v. Rey-Hernandez, 502 F.3d 7 (1st Cir. 2007) ......................................................... 24
23 S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081 (9th Cir. 1989) ............................................................ 17
24 SEC v. M & A West, Inc. (9th Cir. 2008) 538 F.3d 1043 ................................................................ 19
25 Southern Calif. Gas Co. v. City of Santa Ana, 336 F3d 885 (9th Cir. 2003) .................................... 4
26 Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017) ............................................. 4
27 Stevens v. Corelogic, Inc., 194 F.Supp.3d 1046 (S.D. Cal. 2016) .................................................. 21
28 TVT Records v. Island Def Jam Music Group, 262 F. Supp. 2d 185 (S.D.N.Y. 2003) .................. 25
iii OPPOSITION TO MOTION FOR SUMMARY

JUDGMENT
Wallace v. DTG Operations, Inc., 442 F.3d 1112 (8th Cir. 2006) .................................................. 20
1
Statutes
2
17 U.S.C. § 101 ................................................................................................................................. 6
3
17 U.S.C. § 102 ......................................................................................................................... 15, 16
4
17 U.S.C. § 120 ........................................................................................................................ passim
5
17 U.S.C. § 1202 ............................................................................................................. 0, 18, 19, 20
6
Other Authorities
7
H.R. Rep. 101-735....................................................................................................................... 5, 11
8
Treatises
9
1 NIMMER ON COPYRIGHT, § 2.20 ............................................................................................. 4
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Regulations
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37 C.F.R. § 202.11 ........................................................................................................................ 7, 9
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iv OPPOSITION TO MOTION FOR SUMMARY

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1 I. INTRODUCTION
2 Both of GM’s grounds for summary judgment fail.
3 Section 120(a)’s photography exception does not apply to Plaintiff’s mural.
4 As a threshold matter, GM cannot rely on the Section 120(a) defense because
5 it has not shown that the parking garage housing Plaintiff’s mural (the “Mural”)
6 qualifies as a protected “architectural work.” Section 120(a) does not apply to all
7 structures. To qualify, the work must include some degree of originality, and be
8 something more than a functional combination of “standard features.” Further, as
9 the Federal Circuit found in 2010, structures that humans “access” but do not
10 “occupy” (such as bridges and pedestrian walkways) are excluded from copyright
11 protections. GM is not entitled to summary judgment because it makes no attempt to
12 show these fact-intensive standards are met.
13 Even if the parking garage were an architectural work, GM’s Section 120(a)
14 defense would fail because it relies on a fundamental misunderstanding of the
15 Architectural Works Copyright Protection Act (the “AWCPA,” which added Section
16 120(a) to the code), and because under no stretch of the imagination, could
17 Plaintiff’s Mural be such an integral part of the parking garage architecture that they
18 become part of one unitary architectural work.
19 In 1990, Congress for the first time expanded copyright protection to

20 architectural works via the AWCPA—as was required for the U.S. to become a
21 signatory to the Berne Convention. The legislation only expanded copyright
22 protection—although it took back a bit of what it gave. Not wanting to turn every
23 tourist at Walt Disney Concert Hall into an infringer, legislators wisely limited this
24 expansion of copyright protection by specifically allowing photography of
25 architectural works (which Congress determined was consistent with Berne). In
26 other words, the legislation was not motivated by a desire to protect outdoor
27 photography. Rather, it was legislation designed to protect architectural works to the
28 extent required to comply with Berne.
1 OPPOSITION TO MOTION FOR SUMMARY

JUDGMENT
1 This interpretation of the AWCPA is clear from the statutory language, the
2 legislative history, and all applicable legal authorities. GM’s argument that the
3 Leicester case holds otherwise could not be more incorrect. The contrary view that
4 GM clings to—that the AWCPA eliminated protection for other works contained in
5 a photograph of an architectural work—is a vastly oversimplified caricature of a
6 view expressed only in Judge Tashima’s Leicester concurrence. The majority
7 opinion and dissent each reject this view.
8 No court has ever applied Section 120(a) to somehow immunize infringement
9 of a “pictorial, graphic or sculptural (‘PGS’) work” work simply because it appears
10 in the same picture as an architectural work. 1 The Leicester case actually illustrates
11 this point. There, the plaintiff/artist described his work as sculptural—but the court
12 applied the Section 120 exception only because it found that there was no PGS
13 work—but rather that the work in question was an integral part of a 24-story office
14 building’s architecture, and thus simply one part of a unitary architectural work.
15 Given the extraordinary degree of integration of the plaintiff’s purported
16 “sculptural work” into the building’s architecture, Leicester shows just how rare it
17 will be that a purportedly independent work will be “part of” the architecture in this
18 way. As a threshold matter, this was no mere sculpture. Rather it was a courtyard,
19 garden, public space (including public benches), contained free-standing elements
20 such as a fountain, which was contained by large walls that included decorative
21 three-story high towers (the “Courtyard”). Many of the particulars of the work were
22 mandated by architectural codes imposed by a development agency, and the work
23 was built and planned along with the building. The Courtyard (especially the
24 streetwall and towers) even matched the building’s architecture and were made of
25
26 1
The legislative history of the AWCPA shows that Congress was aware of this issue. In a footnote
27 about the special case of stained glass windows (which have a much greater claim to being part
and parcel of the building), Congress found that treating the 2-D design as part of the architecture
28 was inappropriate if the artist was someone other than the architect).

JUDGMENT
1 many of the same materials. In fact, the architect collaborated in the Courtyard to
2 such an extent that he was deemed a joint author—and the artist even contractually
3 acknowledged that the Courtyard was a product of his “collaborative design efforts”
4 with the architect. In other words, it was quite a stretch for the artist to call the
5 Courtyard his own sculptural work, as opposed to part of the architecture. Leicester
6 v. Warner Bros., 232 F.3d 1212, 1214 (9th Cir. 2000). Given that the Ninth Circuit
7 panel was applying a clear error standard, it’s certainly no surprise that it found
8 “powerful evidence” that the artist’s work was “part of the functional and
9 architectural vocabulary of the building.” Id. at 1219.
10 Plaintiff’s Mural could not be more dissimilar. It was conceived of after the
11 parking structure was built, has no relationship to the architecture, and plays no
12 functional role. Its only relation to the architecture of the parking garage is that it is
13 on an elevator shed.
14 GM has not conclusively established its lack of intent under Section 1202
15 GM’s argument that it has negated the “intent” element of Plaintiff’s Section
16 1202(b) claim (for removal of copyright management information) fails because
17 GM has not conclusively demonstrated lack of the required intent. To the contrary,
18 GM’s sole support for its motion—self-serving declarations of the photographer and
19 a GM spokesman claiming general ignorance as to Plaintiff’s signature on the
20 Mural—lack credibility and are insufficient as a matter of law to establish the
21 absence of intent. Under well-established principles, summary judgment is
22 inappropriate when based on self-serving reports of lack of intent, and when
23 credibility is at issue. Plaintiff does not rely on general principles: he offers specific
24 evidence that calls into question the accounts of GM’s declarants. At very least,
25 Plaintiff is entitled to discovery on these issues.
26 II. GM IS NOT ENTITLED TO SUMMARY JUDGMENT ON
27 PLAINTIFF’S COPYRIGHT INFRINGEMENT CLAIM.
28 GM is not entitled to summary adjudication on Plaintiff’s copyright

JUDGMENT
1 infringement claim because it has not established that Section 120(a)’s architectural
2 photography exception applies.
3 A. GM bears a heavy burden.
4 Where the moving party has the burden—as a defendant does on an
5 affirmative defense—his showing must be sufficient for the court to hold that no
6 reasonable trier of fact could find other than for the moving party. Southern Calif.
7 Gas Co. v. City of Santa Ana, 336 F3d 885, 888 (9th Cir. 2003).
8 B. Background of Section 120(a)’s architectural photography exception.
9 Prior to 1990, the Copyright Act afforded no protection to architectural
10 works. Leiceste., supra, 232 F.3d at 1217. Buildings were considered “useful
11 articles,” like apparel or furniture, which are not protected by copyright. Id.
12 While the cut of a tee shirt is not protected by copyright (because it is a useful
13 article), a graphic design on a tee shirt is straightforwardly protected. Artistic
14 elements on or attached to a useful article can be protected by copyright if they
15 incorporate pictorial, graphic, or sculptural features that “can be identified
16 separately from, and are capable of existing independently of, the utilitarian aspects
17 of the article.” Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1008
18 (2017). Thus, to take a simple and seminal example, even though a lamp is a useful
19 article, a lamp base in the form or a Balinese dancer is copyrightable because one
20 can imagine it existing on its own. Mazer v. Stein, 347 U.S. 201 (1954). In the same
21 way, a painting on a building has always been copyrightable.
22 On March 1, 1989, the United States joined the Berne Convention for the
23 Protection of Literary and Artistic Works. The Berne Convention required signatory
24 countries to provide copyright protection for “three–dimensional works relative to ...
25 architecture.” 1 Nimmer on Copyright, § 2.20, at 2–213 (quoting Berne Convention
26 (Paris text), art. 2(1)). To comply with this treaty obligation, Congress passed the
27 AWCPA. See H.R. Rep. 101–735, at 4–10 (attached as Exhibit O to Patterson
28 Decl.). The AWCPA added a new category of protected work to the seven that

JUDGMENT
1 already existed in 17 U.S.C. 102: architectural works. The definition of

2 “architectural work” (explained in detail below) was added to 17 U.S.C. 101 and
3 supplemented in the Federal Register.
4 The legislative history of the AWCPA makes clear that its purpose was to do
5 just enough to comply with Berne. H.R. Rep. 101-735, p. 10 (“The implementing
6 legislation [of the Berne Convention] had one simple, but important objective: to
7 make only those changes in U.S. law required to place the United States in
8 compliance with our treaty obligations.”)
9 Worried that full protection for architectural works (like that afforded to all
10 other categories, such as PGS works) would go too far, and finding that Berne did
11 not require such full protection, Congress also enacted a significant limitation on the
12 copyright protection afforded architectural works by also adding 17 U.S.C. 120 to
13 the Act (also as part of the AWCPA). Section 120(a) provides that the holder of one
14 of these new species of copyrights is not entitled to prevent photography of the
15 architectural work (whereas all other copyrights do allow the holder to prohibit
16 distribution photos). Section 120 reads:
17 The copyright in an architectural work that has been constructed does
not include the right to prevent the making, distributing, or public display
18 of pictures, paintings, photographs, or other pictorial representations of
the work, if the building in which the work is embodied is located in or
19 ordinarily visible from a public place.
20 The House Report explains the reason for exempting pictorial representations
21 of architectural works from copyright infringement:
22 Architecture is a public art form and is enjoyed as such. Millions of
people visit our cities every year and take back home photographs,
23 posters, and other pictorial representations of prominent works of
architecture as a memory of their trip. Additionally, numerous scholarly
24 books on architecture are based on the ability to use photographs of
architectural works. [¶] These uses do not interfere with the normal
25 exploitation of architectural works. Given the important public purpose
served by these uses and the lack of harm to the copyright owner’s
26 market, the Committee chose to provide an exemption, rather than rely
on the doctrine of fair use, which requires ad hoc determinations. After
27 a careful examination of the provisions of the Berne Convention, the
laws of other Berne member countries, and expert opinion, the
28 Committee concluded that this exemption is consistent with our

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obligations under the Convention. [H.R. Rep. 101–735, at 22.]

1
C. As a threshold matter, GM fails to demonstrate the parking garage is an
2
architectural work.
3
GM’s Section 120(a) argument relies on the premise that the parking garage
4
which houses the Mural is indeed an architectural work. But its facile analysis fails
5
to reflect the complexity of the question of whether any given non-traditional
6
structure so qualifies. Not only does GM fail to explain the fact-intensive analytical
7
framework, it offers no evidence (such as images of the structure) in support of its
8
position. Indeed, GM’s entire analysis is contained in its footnote 5:
9
The parking structure constitutes an architectural work because it is a
10 building. 17 U.S.C. §101 (architectural works include “building[s]”).
Buildings include “structures ‘that are used, but not inhabited by human
11 beings....” Leicester, 232 F.3d at 1218. [Motion, at p. 8, fn. 5.]
12 1. The definition of “architectural work” excludes utilitarian
13 structures, such as bridges and walkways, that humans “access”
14 but do not “occupy.”
15 Copyright protection is limited to “original” works. Feist Publ’ns, Inc. v.
16 Rural Tel. Serv. Co., 499 U.S. 340, 349-50. “Originality” requires independent
17 creation and at least “a modicum of creativity.” Id. at 346. The post-1990 Copyright
18 Act defines an architectural work as “the design of a building as embodied in any
19 tangible medium of expression, including a building, architectural plans, or
20 drawings.” 17 U.S.C. § 101. It includes “the overall form as well as the arrangement
21 and composition of spaces and elements in the design, but does not include
22 individual standard features.” Id.
23 Administrative regulations supplement Section 101’s definition. They further
24 define “buildings” (for purposes of Section 12(a) as “humanly habitable structures
25 that are intended to be both permanent and stationary, such as houses and office
26 buildings, and other permanent and stationary structures designed for human
27 occupancy, including but not limited to churches, museums, gazebos, and garden
28 pavilions.” 37 C.F.R. § 202.11(b)(2). The definition excludes “[s]tructures other

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1 than buildings, such as bridges, cloverleafs, dams, walkways, tents, recreational

2 vehicles, mobile homes, and boats;” and “standard features, such as windows, doors,
3 and other staple building components.” Id. § 202.11(d)(1).
4 The legislative history sheds light on the outer limits of what can be
5 considered an architectural work. Congress tweaked the definition of “architectural
6 works” while considering the new law. In an early draft of the legislation, an
7 “architectural work” was defined as “the design of a building or other three-
8 dimensional structure, as embodied in that building or structure.” Congress had
9 intended the phrase “three-dimensional structure” to cover cases where architectural
10 works were embodied in innovative structures that defy easy classification. [H.R.
11 101-735, at 19, 20.] The phrase was removed, however, out of concern that it could
12 be interpreted as covering structures that are almost purely utilitarian—including
13 bridges, cloverleafs, and pedestrian walkways. [Id., at 20.] The committee
14 determined that copyright protection for such works is not necessary to stimulate
15 creativity or prohibit unauthorized reproduction. [Id.] Further, the committee
16 determined that protection for such non-habitable utilitarian structures was not
17 required in order to comply with the Berne Convention—which was the sole
18 purpose of the law in the first place.2 [Id.]
19
20 2
From the Committee Report: The Subcommittee made a second amendment in the definition of
21 architectural work: the deletion of the phrase “or three- dimensional structure.” This phrase was
included in H.R. 3990 to cover cases where architectural works embodied in innovative structures
22 that defy easy classification. Unfortunately, the phrase also could be interpreted as covering
23 interstate highway bridges, cloverleafs, canals, dams, and pedestrian walkways. The
Subcommittee examined protection for these works, some of which form important elements of
24 this nation’s transportation system, and determined that copyright protection is not necessary to
stimulate creativity or prohibit unauthorized reproduction. [¶]The sole purpose of legislating at
25 this time is to place the United States unequivocally in compliance with its Berne Convention
obligations. Protection for bridges and related nonhabitable three-dimensional structures is not
26 required by the Berne Convention. Accordingly, the question of copyright protection for these
27 works can be deferred to another day. As a consequence, the phrase “or other three-dimensional
structures” was deleted from the definition of architectural work and from all other places in the
28 bill.

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1 In Gaylord v. United States, the Federal Circuit considered the issue of

2 whether the Korean War memorial in Washington D.C. met the definition of an
3 “architectural work” under Section 101. In that case, a sculptor had sued the US
4 Postal Service for copyright infringement based on the sale of stamps bearing a
5 photograph of the sculptural work he created for the Korean War memorial in
6 Washington D.C. Gaylord v. United States, 595 F.3d 1364, 1371 (Fed. Cir. 2010).
7 The memorial covers 2.2 acres on the National Mall. It is made up of a 30-foot wide
8 pool framed by two walls—the mural wall, containing images of soldiers,
9 equipment, and people involved in the war; and the United Nations wall, containing
10 the names of the 22 member nations that contributed troops or medical support to
11 the Korean War effort. Between these walls, leading up to the pool, is a series of 19
12 statutes representing a platoon on patrol amidst blocks of granite depicting the
13 rugged terrain of Korea.
14 The Postal Service argued that the memorial was an “architectural work,” and
15 thus only afforded limited protection under Section 120. Id. The lower court rejected
16 this argument because it found that the memorial (or at least the portion depicted in
17 the photograph) was not a “building,” and therefore not an architectural work
18 subject to Section 120. Id., at 1381. The court reasoned that the memorial was akin
19 to a walkway or a bridge in that it “permits individuals to access through it, but is
20 not intended for occupancy.” Id. In affirming the decision, the Federal Circuit found
21 no error in this reasoning, and quoted it with approval. Id.
22 2. The definition of “architectural work” excludes non-creative
23 design and “standard features.”
24 As mentioned above, the definition of “architectural works” also explicitly
25 excludes any “standard features” in a building’s design, such as “common windows,
26 doors, and other staple building components.” 37 C.F.R. § 202.11(d)(2). The
27 legislative intent behind this restriction was to avoid impeding the progress of
28 architectural innovation by limiting the scope of copyright protection to those

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1 elements of a building’s design that reflect the architect’s creativity. [H.R. 107-735,
2 at p. 18.]
3 The legislative history further explains that the Act affords protection only if
4 “the design elements are not functionally required”:
5 A two-stop analysis is envisioned. First, an architectural work should be
examined to determine whether there are original design elements
6 present, including overall shape and interior architecture. If such design
elements are present, a second step is reached to examine whether the
7 design elements are functionally required. If the design elements are not
functionally required, the work is protectable without regard to physical
8 or conceptual separability. [H.R. Rep. No. 101-735, at pp. 20, 21.]
9
3. GM fails to establish that the parking garage or elevator shed are
10
not just standard features and function-dictated design.
11
It is anything but clear that the AWCPA extends copyright protection to the
12
parking garage in question, and/or its elevator shed. Relying on its oversimplified
13
analysis, GM does not bother to describe any creative elements of the garage, or
14
provide any legal analysis on the issue. Accordingly, GM has not established that
15
the parking garage is a copyright-protected architectural work.
16
Indeed, there are theoretical reasons to doubt that a parking structure could
17
qualify as an architectural work. Parking structures are precisely the type of
18
structure that Congress was concerned would be unnecessarily and improperly
19
protected under the subsequently omitted phrase “other three-dimensional
20
structures.” Unlike the “innovative structures” that Congress initially intended to
21
(but ultimately did not) protect, parking structures are not difficult to classify—they
22
are utilitarian structures, the design of which is often dictated almost exclusively by
23
their function: providing convenient parking spots to as many cars as possible.
24
Unlike a house, office building, church, museum, gazebo, or garden pavilion, a
25
parking structure is not designed for human occupancy. Rather, a parking structure
26
is more akin to those structures excluded from the definition of a “building” (i.e.
27
bridges, cloverleafs, dams, walkways) that are not designed for human occupancy,
28

JUDGMENT
1 but rather to facilitate human transportation and access. Thus, until GM presents far
2 more evidence regarding the design of the garage, it is not established to be an
3 architectural work.
4 D. Even if the parking garage is an architectural work, Section 120(a)
5 doesn’t apply here because the Mural is not an integral part of the
6 architecture.
7 GM appears to believe that Section 120(a) allows anyone to distribute a
8 photograph of a building, even if the photograph contains other PGS works that
9 would normally be protected by copyright. GM even describes the statute as
10 granting “immunity.” [Motion, 2:19-21.] In this way, GM contends that the
11 AWCPA significantly restricts copyrights in non-architectural works. Indeed, if
12 GM’s view prevailed, all graffiti art that exists on a building—that is, most graffiti
13 art—would suddenly be unprotected by copyright.
14 1. The plain statutory language, as well as the legislative history,
15 shows that Section 120(a)’s exception limits only the copyrights in
16 architectural works.
17 The statute provides that “The copyright in an architectural work that has
18 been constructed does not include the right to prevent the making, distributing, or
19 public display of pictures, paintings, photographs, of the work.” 17 U.S.C. 120(a). In
20 other words, if someone claims the benefits of one of the newly-minted architectural
21 copyrights, he or she must allow photography of such work. The statute does not
22 suggest that the copyright in any other works, such as a PGS work on or attached to
23 a building, would be limited in any way. The new law was clearly intended only as
24 expanding the scope of protectible works to include new subject matter. There is no
25 indication that anything previously protected by copyright is not still protected.
26 Davidson v. United States, 2017 U.S. Claims LEXIS 841 (“the addition of Section
27 120 was intended to extend copyright protections, however, not truncate them.”);
28 see also Jane C. Ginsberg, Commentary on the Visual Artists Rights Act and the

JUDGMENT
1 Architectural Works Copyright Protection Act of1990, 14 COLUM.- VLAJ.L.

2 &ARTs 477,495 (1990) (“if a building contains elements separately protectable as
3 pictorial, graphic or sculptural works (for example, a gargoyle), the unauthorized
4 pictorial representation of that element may be an infringement of the pictorial,
5 graphic or sculptural work (not of the work of architecture).”)
6 2. The legislative history compels this interpretation.
7 There is no question that the AWCPA was enacted for the sole reason that it
8 was required for the U.S. to become a signatory to Berne Convention. H.R. Rep.
9 101-735, at p. 20 (“The sole purpose of legislating at this time is to place the United
10 States unequivocally in compliance with its Berne Convention obligations.”) The
11 legislative history also leaves no question that Congress intended to do the minimum
12 required to meet Berne’s requirements:
13 The implementing legislation [of the Berne Convention] had one simple,
but important objective: to make only those changes in U.S. law required
14 to place the United States in compliance with our treaty obligations. H.R.
Rep. 101-735, p. 10.
15
In other words, Congress did not intend to change the protectability of pictorial,
16
graphic or sculptural works attached to buildings.
17
This is confirmed by other express language in the legislative history of the
18
AWCPA. Indeed, the House Report states quite directly that separately protectable
19
PGS works may be permanently embodied in architectural works:
20
“The Subcommittee was aware that certain works of authorship which
21 may separately qualify for protection as pictorial, graphic, or sculptural
works may be permanently embodied in architectural works. Stained
22 glass windows are one such example.” H.R. Rep. 101-735, p. 19, fn. 41.
23 Of such works, the Report makes clear that as long as the architect and artist are
24 different people, each can recover for copyright infringement. Id., at p. 20, fn. 41.
25 3. The Ninth Circuit’s Leicester case compels this interpretation.
26 In Leicester v. Warner Brothers, 232 F.3d 1212 (9th Cir. 2000), an artist
27 collaborated with an architect to design a courtyard, and garden, surrounded by a
28 “streetwall” featuring a number of towers topped with decorative designs. Leicester,

JUDGMENT
1 232 F.3d at 1214 . The Courtyard and surrounding wall were part of the design of an
2 adjoining office building. Id. When elements of the streetwall appeared in the
3 defendant’s Batman motion picture, the artist sued for infringement of his purported
4 sculptural work. Id. at 1213. The court rejected this claim, finding that this was not a
5 sculptural work attached to an architectural work—but rather one unitary
6 architectural work that included the photographed elements. Id., at 1219.
7 Accordingly, the court found unauthorized photography of the architectural work
8 (including the streetwall claimed by the artist plaintiff) was permitted. Id., at 1219-
9 1220.
10 GM’s heavy reliance on the Leicester case is misplaced. First, the fact
11 differences in the cases demonstrate why GM’s motion fails. In Leicester, the
12 building’s architecture and the claimed sculptural work (i.e. the streetwall, including
13 the towers) were so intertwined as to be a single work. Perhaps aware of the
14 fundamental and material factual differences, GM turns to abstract legal doctrine
15 they claim can be found in Leicester. The problem with this approach is that GM
16 cites largely to Judge Tashima’s concurrence on key points on which the other two
17 Judges disagreed. Where GM cites to the majority opinion, it inexplicably interprets
18 it as echoing the concurrence.
19 a. Leicester is distinguishable because the purported sculptural
20 work was simply part and parcel of the architecture.
21 Mr. Leicester’s claim failed because his purported sculptural work was just a
22 part of a unitary architectural work (comprising the building and Courtyard), rather
23 than an independent PGS work. This conclusion was based on the extraordinary
24 degree of integration of the Courtyard into the building, including:
25 • The building owner was required by the Los Angeles Community
26 Redevelopment Agency (from which it purchased the land) to install public art,
27 and to install a “streetwall” to box in the areas between the building and the
28

JUDGMENT
1 street. Leicester, at 1214. The owner chose to meet these obligations by

2 commissioning the Courtyard project. Id.
3 • The Courtyard fulfilled obviously architectural functions, including those
4 mandated by the CRA. Id. For example, the CRA required the streetwall to
5 recreate the feeling of traditional downtown streets in which buildings touch each
6 other so as to create a continuous wall on both sides of the street. Id.
7 • The architect and artist worked together on the Courtyard, and entered into a
8 written contract acknowledging that the Courtyard was a product of the
9 collaborative design efforts of the artist and architect. Id., at 1215. Indeed, the
10 trial court even found that the artist and architect were joint authors of some
11 aspects. Id., at 1218.
12 • The CRA mandated that the Courtyard and building share common artistic and
13 architectural elements—and indeed, the court spent considerable time detailing
14 the ways in which the courtyard aesthetically matched the building. Id., at 1217-
15 1219. To take a one example among many, the court noted that “The streetwall
16 matches the building and gives the impression that the building continues to the
17 end of the property line. The streetwall towers are designed to appear as part of
18 the building.” Id.3
19 b. Two of the three Leicester opinions find that a protectable
20 PGS work can exist on or attached to an architectural work.
21 GM also badly mischaracterizes Leicester’s three legal opinions. GM cites
22 Leicester for the general proposition that Section 120(a) permission to photograph
23 architectural works extends even to bona fide PGS works in the same image. If a
24
25
3
The court also noted “The streetwall towers were designed to extend the building visually, which
26 they do along both Figueroa and Eighth. The Eighth Street smoke towers are equally integrated
27 and serve the same purpose on Eighth as the Figueroa Street smoke towers do on Figueroa. This is
powerful evidence that they (together with the additional two lantern towers on Figueroa) are part
28 of the functional and architectural vocabulary of the building.” Leicester, 232 F.3d, at 1218.

JUDGMENT
1 poem were penned on the side of a building, GM believes it would be free to

2 distribute a photograph thereof. More specifically, GM makes the following bold
3 (and utterly misguided) assertions:
4 • “This right to photograph an architectural work extends to those portions of
5 the work containing pictorial, graphic or sculptural (“PGS”) elements.” [1:25-
27, citing Leicester at 1219.]
6
• A pictorial, graphic or sculptural (“PGS”) feature embedded or incorporated
7 into a building is subject to the same pictorial representation exemption as the
8 underlying architectural work That is, a member of the public may
photograph a PGS work embedded in the architectural work without liability
9 for copyright infringement. Id. This is true regardless of whether the PGS
work is “conceptually separable” from the architectural work itself. [8: 9-15,
10 again citing Leicester at 1219.]
11 Based on these assertions, GM finds that “Because Plaintiff’s mural is painted
12 onto an architectural work it falls “squarely within the ‘pictorial representation’
13 exemption, and his copyright infringement claim should be dismissed” [Motion,
14 1:28-2:2] and “is immunized from liability for infringement, regardless of whatever
15 PGS elements may be incorporated into the building.” [Id., at 12:20-21.]
16 But as explained below, Leicester says no such thing. In fact, these
17 propositions are pulled only from Judge Tashima’s concurrence. Not only was Judge
18 Tashima alone in so reasoning, he stopped well short of endorsing the categorial
19 proposition that GM attributes to him (and inexplicably to the majority).
20 To explain, some explanation of Leicester’s confusing three-way split is in
21 order. The question that divided the justices (and which arises here) was indeed
22 whether a PGS work that is attached to, or on, an architectural work enjoys the same
23 copyright protection that it did before the AWCPA. The majority opinion did not
24 need to take a position on this abstract issue, because it found there was no PGS
25 work to consider—rather, there was only a unitary architectural work consisting of
26 an office building that included the Courtyard.
27 Judge Tashima wrote a concurrence because he disagreed with the majority
28 (and dissent) on this point. His view was that Section 120(a)’s permission to

JUDGMENT
1 photograph a building trumped and altered the copyright protections of PGS works
2 embodied in buildings. In other words, he found that protection for architectural
3 works in 17 U.S.C. § 102(a)(8) is now the exclusive remedy for PGS works
4 embodied in an architectural work. Id. at 1222. Thus, he would have found for the
5 defendant whether or not a separate PGS work existed. Judge Tashima is the only
6 judge or academic to so reason.
7 Judge Fisher’s lengthy dissent offered a muscular argument for precisely the
8 opposite conclusion (which is extremely close to Plaintiff’s position here): that
9 Section 120(a) limited only the new species of copyrights enacted at the same time,
10 rather than PGS copyrights as well.
11 As mentioned, Judge Rymer’s majority opinion obviously agreed with the
12 concurrence in its ultimate result (no infringement because Section 120(a) applies).
13 And while he need not have taken a position of the question that divided the other
14 Judges, he did in fact break the tie in the dissent’s favor. He plainly expressed his
15 view that a protected PGS work could exist on or attached to an architectural work
16 by finding otherwise only as a matter of fact:
17 Leicester further maintains that the streetwall towers are a sculptural
work which is ‘conceptually separate’ from the building and thus
18 independently entitled to copyright protection. Again, the district court
found otherwise, and we cannot say its finding lacks support.” Id, at
19 1219.
20 Even Justice Tashima stopped well short of the categorical proposition that
21 GM somehow ascribes to the opinions as a whole. He did this by qualifying his
22 argument as applying “at least” where the PGS work is a functionally part of the
23 architectural work:
24 There is ample support in the legislative history of the Act that the
protection for architectural works in 17 U.S.C. § 102(a)(8) is now the
25 exclusive remedy for PGS works embodied in an architectural work—at
least for those PGS works that are so functionally a part of a building
26 that § 120(a)’ s exemption would be rendered meaningless for such
buildings, if conceptual separability were applied to them. Id., at 1222
27 (emphasis added).
28 When the dissent mocked that under Tashima view, “If an artist created even

JUDGMENT
1 the smallest painting on the front of a building, she would lose PGS copyright
2 protection in that work,” Justice Tashima responded by making clear that he was not
3 announcing a doctrine of such broad and general application, but rather (echoing the
4 majority) one limited to cases where the purported PGS is so integral to the
5 architecture that there is just one unitary work. Justice Tashima explained:
6 I emphasize the narrow and unique circumstances of this case: Here, the
disputed PGS work is the functional equivalent of a building wall,
7 serving the architectural purpose of extending the building line itself, as
architecturally-mandated by the CRA. This is a far cry from “the smallest
8 painting on the front of a building,” or “painting even a small work on a
building,” to which the dissent compares the streetwall. See op. at 1232–
9 33, 1233–34. The case the dissent worries about is not before us…. Id.,
at 1222, fn. 2.
10
Indeed, Justice Tashima goes on explicitly acknowledge that the artist could
11
well have a PGS copyright in other aspects of the Courtyard project—just not in the
12
streetwall that was used in Batman, which was unquestionably part of the
13
architecture: “the free-standing elements of the [Courtyard] are not at issue in this
14
case.” It strains logic to call Judge Tashima’s reasoning a bright-line rule—or even a
15
rule at all. He merely found that an element of a unitary architectural work—as
16
determined by a thorough factual investigation—is subject to Section 120.
17
Again, it is difficult to understand how GM could cite even the concurrence
18
as supporting its categorical assertions, much less a majority. The instant case is
19
actually far more similar to the hypothetical that Judge Tashima backed away from
20
(a painting on a building that is small enough relative to the whole that it cannot be
21
said to play a role in the architecture) than it is to the facts of Leicester.
22
4. Plaintiff’s mural had nothing to do with architecture.
23
Under the legal principles laid out above, GM was not privileged to use
24
photographs of Plaintiff’s work. The Mural is a straightforward pictorial work, of
25
the sort that has always been protectable. And even if there were instances where a
26
PGS work could lose its protection because it existed on, or was attached to an
27
architectural work, this certainly would not be such a case. Here Plaintiff’s Mural
28

JUDGMENT
1 was not integrated into the architecture to any degree, he did not collaborate or even
2 communicate with the architect, and his mural played no functional or architectural
3 role. Furthermore, unlike the alleged infringement in Leicester—a wide-angle shot
4 of a city streetscape—GM’s photograph depicts no element of the parking structure.
5 E. At very least, whether the Mural is part of the architecture is a fact issue.
6 To withstand summary judgment, Plaintiff need not demonstrate that his PGS
7 work is protected by a copyright that has nothing to do with the architectural work
8 which houses it. Given that Leicester shows the relevant analysis to be fact-
9 intensive, it is enough that Plaintiff demonstrates that a fact issue exists as to
10 whether his mural is a separately existing PGS work, or (as in Leicester) a unitary
11 architectural work.
12 And indeed, courts hold that the “singleness” of a work—whether a work
13 should be analyzed “as a whole,” or as “separate works to be considered
14 individually”—is a “factual [finding]. See Carter v. Helmsley-Spear, Inc., 71 F.3d
15 77, 83 (2d Cir. 1995). Treating this issue as a question of fact is consistent with the
16 Ninth Circuit’s treatment of analogous questions: for example, the nature and
17 classification of a work is a question of fact (Poe v. Missing Persons, 745 F.2d
18 1238, 1242 (9th Cir. 1984)); whether copyrightable expression by two different
19 authors have merged into a unitary whole is a question of fact ( S.O.S., Inc. v.
20 Payday, Inc., 886 F.2d 1081, 1086 (9th Cir. 1989)); and whether episodes of a
21 television series should be considered “separate works” or parts of “one work” for
22 purposes of statutory damages is factual (Columbia Pictures Television v. Krypton
23 Broadcasting, 106 F.3d 284, 295 (9th Cir. 1997), rev’d on other grounds, Feltner v.
24 Columbia Pictures Television, Inc., 118 S. Ct. 1279 (1998)).
25 III. DEFENDANT IS NOT ENTITLED TO SUMMARY JUDGMENT ON
26 PLAINTIFF’S SECTION 1202 CLAIM
27 GM admits that it posted a photograph of Plaintiff’s Mural on multiple GM
28 social media sites and did so without Plaintiff’s permission. [GM Answer, Dkt 23,

JUDGMENT
1 ECF p. 2, ¶3.] GM also admits the posting was part of a GM advertising campaign.
2 Id., p. 5, ¶17; see, also, ¶¶18-21.] In moving for summary judgment, GM further
3 acknowledges as uncontroverted facts that copyright management information
4 (“CMI”) in the form of Plaintiff’s signature and pseudonym exists on the Mural but
5 was not included in GM’s unauthorized posting of the Mural. [SUF 17, 21.]
6 Despite these admissions, GM argues that it cannot be liable for violation of
7 Section 1202 because it did not “intentionally” or “knowingly” remove Plaintiff’s
8 signature when it posted the Mural. But GM’s proffered evidence fails to
9 conclusively establish any such defense because the only support GM provides—
10 two vague and self-serving witness declarations denying any willful conduct—are
11 inconclusive and lack credibility. In other words, fact issues remain.
12 A. GM fails to provide competent evidence of its asserted lack of intent.
13 In seeking summary judgment based on its alleged lack of knowledge and
14 intent in removing Plaintiff’s CMI, one would expect GM to offer first-hand
15 declarations from its decision-makers stating that they had no knowledge that the
16 Mural included Plaintiff’s signature. And indeed, GM argues in its Motion that:
17 No one at General Motors who was responsible for the photo’s being
posted was aware that: i) the mural covered an additional wall not
18 pictured in the photograph; ii) the portion of the mural on the additional
wall contained the “Smash137” signature or Plaintiff’s name…. SUF 22,
19 23, 26 [Motion, ECF p. 12, ll. 16-23.]
20 If the uncontroverted facts were as GM stated, GM might be onto something.
21 But GM’s declarations, inexplicably, do not support this assertion regarding
22 GM staff’s state of mind. Rather, GM offers only the declaration of its employee
23 Donny Nordlicht, whose title is not provided but who explains he is “responsible for
24 Product and Technology communications for Cadillac.” In other words, he is a
25 spokesman, not a decision-maker. Mr. Nordlicht purports to declare as to the state of
26 mind of the relevant members of GM’s staff (who are not named but are said to be
27 responsible for the post in question), asserting: “at the time GM staff received the
28 photograph and at the time GM staff arranged for it to be posted on social media,

JUDGMENT
1 GM staff had no idea that the mural covered another wall.” [Nordlicht Decl., ¶7.]
2 Mr. Nordlicht makes no claim that he was among this group of decision-makers—
3 and he fails to explain how he knew their states of mind.
4 This evidence is of course objectionable as not first hand—and thus comes
5 nowhere near establishing GM’s ignorance of Plaintiff’s CMI or lack of intent
6 (especially given the high standard applicable to a party moving for summary
7 judgment). GM may be liable under Section 1202 if even only one member of the
8 group of unnamed GM decision-makers had reason to believe that the Mural was
9 signed. Agence Fr. Presse v. Morel, 934 F. Supp. 2d 547, 578 (S.D.N.Y. 2013)
10 (Section 1202 claim may be successful if at least one participant had knowledge of
11 missing CMI).
12 B. GM’s summary judgment motion also fails because it turns on GM’s
13 witnesses’ credibility, a matter inappropriate for summary judgment.
14 Even if GM’s key decision-makers had submitted declarations, it would not
15 conclusively establish lack of intent. A party is not entitled to summary adjudication
16 on a state of mind issue based only on self-serving declarations—especially before
17 discovery and especially where there are good reasons to question the declarations.
18 1. Summary judgment is inappropriate where credibility is at issue,
19 especially with regard to reports of a declarant’s state of mind.
20 “[S]summary judgment is singularly inappropriate where credibility is at
21 issue.” SEC v. M & A West, Inc. (9th Cir. 2008) 538 F.3d 1043, 1054-1055 (internal
22 quotes omitted); see also Deville v. Marcantel (5th Cir. 2009) 567 F.3d 156, 165.
23 Thus, summary judgment is denied where an issue as to a material fact cannot be
24 resolved without observation of the demeanor of witnesses to evaluate their
25 credibility. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986) (summary
26 judgment will be denied where a reasonable fact-finder could return a verdict for the
27 non-moving party).
28 This is all the more so when the issue in question is a party’s state of mind.

JUDGMENT
1 “[W]here motive and intent are important, proof is largely in the hands of the
2 alleged conspirators, and relevant information is controlled by hostile witnesses,”
3 summary judgment is disfavored. International Healthcare Mgmt. v. Hawaii
4 Coalition for Health, 332 F.3d 600, 604 (9th Cir. 2003) (internal citations omitted).
5 See also Ferrell v. Harris Ventures, Inc., 812 F. Supp. 2d 741, 748 (E.D. Va. 2011)
6 (“Questions of intent are hard to decide on summary judgment. They are almost
7 always inferential, and best left to the trier of fact”); Wallace v. DTG Operations,
8 Inc., 442 F.3d 1112, 1117–118 (8th Cir. 2006) (“although Rule 56 contains only one
9 standard, we must exercise particular caution when examining the factual question
10 of intent to ensure that we dutifully extend all justifiable inferences in favor of the
11 non-moving party”).
12 Courts have applied this doctrine Section 1202’s intent requirement. In
13 Friedman v Live Nation, a Ninth Circuit panel denied summary judgment on a
14 Section 1202 claim, based on these principles. Friedman v. Live Nation Merch.,
15 Inc., 833 F.3d 1180 (9th Cir. 2016) (“Friedman”). The Friedman court found that
16 an “assessment of a party’s state of mind,” required for a Section 1202 analysis, is
17 usually inappropriate for summary judgment. Id. at 1186. The court further held that
18 defendant need not be the party that removed the CMI to be liable under Section
19 1202, only that defendant knew CMI had been removed. Id., at 1187. Unless a
20 Section 1202 defendant presents conclusive and irrefutable proof that it had no
21 knowledge CMI was removed or altered, it may not prevail on summary judgment.
22 Id., at 1187-1189.
23 Even GM’s marquee case illustrates this point. Stevens v. Corelogic, Inc., 194
24 F.Supp.3d 1046, 1052-1053 (S.D. Cal. 2016), aff’d ___ F.3d. ___ (9th Cir. June 20,
25 2018) (“Corelogic”) supports the proposition that when a plaintiff has shown that
26 CMI exists, as GM admits here, a defendant may not obtain summary judgment
27 based on self-serving declarations claiming it lacked intent in removing CMI. This
28 is so because “[c]redibility determinations, the weighing of the evidence, and the

JUDGMENT
1 drawing of legitimate inferences from the facts are jury functions, not those of a
2 judge, when he or she is ruling on a motion for summary judgment.” Corelogic, 194
3 F.Supp.3d at 1047. See, also, Agence Fr. Presse v. Morel, 934 F. Supp. 2d at 577-78
4 (when determining summary judgment on a Section 1202 claim, a court may not
5 consider any evidence a jury is not required to believe and may not make credibility
6 judgments).
7 2. GM’s declarations are flimsy and self-serving—and there is good
8 reason to doubt them.
9 Here, Bernstein’s and Nordlicht’s unsupported assertions that unnamed
10 decision-makers were “unaware” of Plaintiff’s signature on his Mural—a signature
11 that is, by GM’s own admission, bold and easily identifiable (Declaration of Paul
12 Margolis, ¶5 and Exhibit D)—are less than credible on their face and may not form
13 the basis of summary judgment. Further, there are good affirmative reasons to doubt
14 these assertions. Indeed, the flimsy declarations GM offers are called into question
15 by GM’s wide-ranging working relationship with photographer Bernstein (which
16 Bernstein and Nordlicht fail to mention), and GM’s use of other graffiti themed
17 advertisements for the very same car, the Cadillac XT5.
18 With regard to Bernstein’s relationship with GM, there is reason to believe it
19 was much more extensive that GM’s declarants let on. As GM tells it, Bernstein just
20 happened to be coming to Detroit, where he happened to borrow a GM car (which
21 GM allowed as a courtesy), and then happened to take the photograph in question in
22 front of Plaintiff’s Mural which he sent to GM. [Bernstein Decl., ¶¶ 4-10] GM
23 further offers no explanation of why Bernstein sought a car from GM or why GM
24 was inclined to provide the newly debuting 2017 Cadillac XT5 to Bernstein for his
25 use free of charge during his Detroit trip. Bernstein states that he “knew about” auto
26 companies maintaining “press fleets” of vehicles for “publicity purposes,” but he
27 provides no explanation of why GM would be inclined to loan Bernstein such a
28 vehicle—especially a newly debuting model. [Bernstein Decl., ¶5.]

JUDGMENT
1 A simple internet search reveals that Bernstein has done a good deal of work
2 for GM. For instance, in early 2016, there are several posts on Mr. Bernstein’s
3 Instagram account featuring images from a photoshoot promoting GM’s Chevrolet
4 Camaro, and another featuring a photo of a Cadillac CTS-V. [Patterson Decl. ¶ 13,
5 Exh. L.] And again, in October 2016, Mr. Bernstein directed a short promotional
6 film for the Cadillac CTS-V. [Patterson Decl. ¶ 14, Exh. M.] Most recently, Mr.
7 Bernstein was chosen to photograph GM’s 2019 Corvette ZR1 for its global launch.
8 [Patterson Decl. ¶ 15, Exh. N.]
9 Evidence also reveals that GM’s assertion that Bernstein alone chose to use
10 the mural in his photograph is not credible. GM regularly used graffiti in
11 advertisements for the XT5 and similar SUVs—beginning at least as early as August
12 2016. [See Patterson Decl. ¶¶ 4, 5 Exhs. C, D.] Additionally, the timing of GM’s use
13 of Plaintiff’s mural coincided with other graffiti-themed Cadillac promotions.
14 Specifically, GM posted the photo of Plaintiff’s mural on November 29, 2016 [CITE
15 GM’s motion/decl.]. Three days later, GM posted photos and videos from an event it
16 hosted at the December 2016 Art Basel fair in Miami Beach, showing an artist
17 creating a graffiti-style painting on a Cadillac SUV. [Patterson Decl., ¶¶ 6-8, Exhs.
18 E-G.] These images—including that of Plaintiff’s mural—were re-posted to other
19 GM social media accounts. [Id., at ¶¶ 9, 10; Exhs. H, I.]
20 In addition, and fatal to GM’s summary judgment motion, Plaintiff has
21 uncovered evidence that GM through the present, continues to distribute the
22 infringing photograph without the copyright management information on GM’s
23 social media platforms. [Patterson Decl., ¶ 9, Exh. H.] This precludes summary
24 judgment for GM as a matter of law. Goldstein v. Metro. Reg’l Info. Sys., Inc., No.
25 15-CV-2400, 2016 U.S. Dist. LEXIS 106735, 2016 WL 4257457, at *8 (D. Md.
26 Aug. 11, 2016) (finding that defendant’s continued promotion of infringing content
27 with altered CMI despite receiving cease and desist notice sufficed to sustain a
28 Section 1202 claim); see also Aaberg v. Francesca’s Collections, Inc., No. 17-CV-

JUDGMENT
1 115 (AJN), 2018 U.S. Dist. LEXIS 50778, at *25 (S.D.N.Y. Mar. 27, 2018).
2 3. GM fails to establish Bernstein was not acting as GM’s agent when
3 he took the infringing photograph.
4 GM posits as an uncontroverted fact that Bernstein, was not “an employee or
5 agent” of GM. [SUF No. 6.] The only basis for this key assertion (which GM hopes
6 will negate the possibility of vicarious liability) is again Bernstein’s declaration.
7 [Id.] The relationship between GM and Bernstein however, as suggested above, is
8 far from established. The photographer simply declares, without any background
9 information or explanation, that “at no time in 2016 was I ever an employee or agent
10 of Cadillac or GM.” [Bernstein Decl., ¶ 3.] These are improper conclusions, not
11 material statements of fact. Bernstein admits that he is a “professional automotive
12 photographer,” who works on a “freelance basis.” [Id. at ¶ 1.] Left unstated is what
13 Bernstein’s “freelance basis” of work entails. GM and Bernstein also fail to state
14 whether Bernstein ever worked on a “freelance basis” for GM.
15 But as mentioned above, there is much more to the GM-Bernstein relationship
16 than GM has disclosed. Whether full information would create be a basis for
17 vicarious liability (based on an agency or employment relationship) cannot be ruled
18 out, especially prior to discovery. The missing information is essential to understand
19 the relationship between GM and Bernstein. Whether Bernstein was acting as an
20 agent for GM when Bernstein took the infringing photograph and GM’s resulting
21 liability for Bernstein’s actions and imputation of Bernstein’s knowledge remain
22 disputed issues that preclude GM’s summary judgment.
23 C. Plaintiff is entitled to discovery on GM’s knowledge and intent.
24 Federal Rule of Civil Procedure 56(d) provides:
25 If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition the court
26 may: (1) defer considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any other
27 appropriate order. [Fed. R. Civ. Pro. 56(d).]
28 Plaintiff has been afforded no opportunity to conduct discovery. [Patterson

JUDGMENT
1 Decl., ¶16.] As discussed in Section IV(C) above, Plaintiff challenges the vague and
2 conclusory statements in the Bernstein and Nordlicht declarations and has presented
3 evidence calling into question that testimony. Plaintiff is entitled to discover the
4 facts and circumstances surrounding GM’s infringement of Plaintiff’s Mural,
5 including the relationship between Bernstein and GM, and the infringing
6 photograph’s creation and use by GM to promote the XT5.
7 In his concurrently-filed declaration, Plaintiff’s counsel Ryan Patterson
8 further explains the need for discovery, and proposes specific discovery. For
9 example, Plaintiff seeks (1) to depose Mr. Nordlicht and Mr. Bernstein on the issues
10 described above, (2) information on the identity of the GM decisionmakers
11 described in the Nordlicht declaration, (3) and seeks discovery of relevant
12 communications between GM and Bernstein, including emails described but not
13 attached to the Bernstein declaration
14 In contrast to GM’s self-serving and limited-information declarations, the
15 requested discovery will reveal GM’s actual statements and activity at the time the
16 infringing photograph was created and posted. Plaintiff is entitled to this discovery
17 to explore GM’s true intent and knowledge surrounding Plaintiff’s copyright
18 management information. The discovery is necessary to prevent Plaintiff from being
19 “railroaded” by a premature motion for summary judgment. Celotex Corp. v. Catrett
20 (1986) 477 US 317, 106 S.Ct. 2548, 2554; Rivera-Torres v. Rey-Hernandez, 502
21 F.3d 7, 10 (1st Cir. 2007) (Rule allowing discovery by non-movant to marshal the
22 facts safeguards against “judges swinging the summary judgment axe too hastily.”).
23 Accordingly, if the Court is not inclined to deny GM’s summary judgment on
24 the current record, Plaintiff requests the opportunity to take the requested discovery
25 before a final ruling is made.
26 IV. PUNITIVE DAMAGES COULD BE AVIALABLE
27 Plaintiff moves for “for partial summary judgment on Plaintiff’s claim for
28 punitive damages, on the grounds that punitive damages are never available with

JUDGMENT
1 respect for copyright infringement. But there is no such categorical rule. Indeed,
2 where (as here) statutory damages are not available, some courts find that precedent
3 does not to “categorically foreclose the availability of punitive damages under the
4 Copyright Act,” at least “provided the requisite malice is indicated.” TVT Records v.
5 Island Def Jam Music Group, 262 F. Supp. 2d 185, 187 (S.D.N.Y. 2003). Because it
6 again offers no factual analysis, GM has not conclusively established that punitive
7 damages are unavailable.
8 V. CONCLUSION
9 For the foregoing reasons, Defendant’s Motion should be denied.
10
11 DATED: July 2, 2018 ERIKSON LAW GROUP
12
13 By: /s/
David Erikson
15
16
17
18
19
20
21
22
23
24
25
26
27
28

JUDGMENT
Case 2:18-cv-00549-SVW-JPR Document 32-1 Filed 07/02/18 Page 1 of 26 Page ID #:216

3 Telephone: 310.776.7413
4 ERIKSON LAW GROUP

Telephone: 323.465.3100
7 Facsimile: 323.465.3177
9
12

15 v. STATEMENT OF GENUINE
ISSUES IN OPPOSITION TO
16 GENERAL MOTORS LLC; and DOES MOTION FOR SUMMARY
1-10 inclusive. JUDGMENT
17
Defendants. Date: July 23, 2018
18 Time: 1:30 pm
Courtroom: 10A
19
20 Plaintiff Adrian Falkner submits this statement of genuine issues pursuant to

21 Central District of California Local Rule 56-2 in opposition to the motion for
22 summary judgment herein filed by Defendant.
23 The facts set out below correspond to the facts and supporting evidence
24 presented in the Statement of Uncontroverted Facts filed by Defendant. These facts
25 are followed by additional material facts and supporting evidence showing a
26 genuine issue.
27
28
1 PLAINTIFF’S SEPARATE STATEMENT OF

GENUINE ISSUES
1 UNCONTROVERTED FACTS
2 DEFENDANT’S ALLEGED RESPONSE IN OPPOSITION

4 1. Plaintiff Adrian Falkner claims to be Undisputed.
5 a resident of Switzerland and a
6 renowned artist, producing works
7 under the pseudonym “Smash 137”.
8 Corrected First Amended Complaint
9 (“FAC”) (Dkt. 22), ¶10.
10 2. In 2014, Plaintiff was invited by a Undisputed.
11 Detroit art gallery to create “an
12 outdoor mural as part of a marketing
13 project” of murals to be displayed
14 throughout a parking garage located
15 at 1234 Library Street in Detroit,
16 Michigan.
17 FAC, ¶¶15-16.
18 3. Plaintiff claims to have created such Undisputed.
19 mural on “two perpendicular walls
20 on a structure at 1234 Library
21 Street.”
22 FAC, ¶16.
23 4. Plaintiff claims he placed his Undisputed.
24 pseudonym “SMASH 137” on the
25 left side of one of the perpendicular
26 walls displaying his Mural.
27 FAC, ¶16.
28

GENUINE ISSUES

3 5. The Mural is painted onto the DISPUTED. This is not a statement
4 surface of the building structure of fact. Rather, it is the unsupported
5 housing an elevator shaft and is a legal conclusion that the mural “is
6 part of the structure. part of” the structure. It is not part of
7 Declaration of Alex Bernstein, ¶¶7- the structure. Rather, the mural is
8 8, Exs. B, D; Declaration of Paul ON the structure.
9 Margolis, ¶¶3,5, Exs. B, D. Declaration of Adrian Falkner
10 (“Falkner Decl.”), ¶¶3-5, 7.
11
12
13 6. In August 2016, Alex Bernstein was DISPUTED. This is not a statement

14 a professional automotive of fact. Rather, it is the unsupported
15 photographer who worked on a legal conclusion that Bernstein was
16 freelance basis and had previously not an “employee or agent” of GM.
17 worked for automotive magazines as Bernstein had an established
18 an editor and photographer. At no working relationship with GM and
19 time in 2016 was he an employee or was acting as GM’s agent when he
20 agent of Defendant General Motors photographed Plaintiff’s Mural in
21 LLC (“GM”). August 2016. (Declaration of Alex
22 Bernstein Decl., ¶¶1, 3, 5. Bernstein, Dkt 30-2 (“Bernstein
23 Decl.”), ¶6; Declaration of Ryan
24 Patterson (“Patterson Decl.”), ¶¶2-4,
25 12-15).
26 7. GM is a limited liability company Undisputed.
27 existing under the laws of the State
28

GENUINE ISSUES

3 of Delaware; it operates the Cadillac
4 automobile division.
5 Margolis Decl.,¶6; Declaration of
6 Donny Nordlicht, ¶1.
7 8. In August 2016, Bernstein traveled Partially DISPUTED. Undisputed
8 from Los Angeles to Detroit for the that Bernstein was in Detroit in
9 purpose of meeting with various August 2016. Disputed as
10 advertising agencies and presenting incomplete and unsupported as to
11 his photographic portfolio. the “purpose” of the trip. Bernstein
12 Bernstein Decl., ¶4. was also in Detroit in August 2016
13 to photograph the Cadillac XT5 for
14 GM. (Declaration of Alex Bernstein,
15 Dkt 30-2 (“Bernstein Decl.”), ¶6.)
16 9. Bernstein was aware that automotive Partially DISPUTED. As to
17 companies generally maintain “press Bernstein’s awareness of whether
18 fleets” of vehicles for publicity unnamed automotive companies
19 purposes. Needing a car to get generally maintain “press fleets,”
20 around in Detroit during his visit, he undisputed but irrelevant. As to
21 contacted Cadillac and asked to Bernstein’s contact with Cadillac,
22 borrow a car to use during his disputed as incomplete and
23 Detroit visit. unsupported. In his declaration,
24 Bernstein Decl., ¶¶5-6; Nordlicht Bernstein claims he sent an email to
25 Decl., ¶3. Stephen Martin at Cadillac
26 proposing to borrow a car and, in
27 exchange provide photographs of the
28

GENUINE ISSUES

3 car. (Bernstein Decl., ¶6). But the
4 email is not provided. GM also does
5 not provide testimony or evidence
6 from Martin as to the contact with
7 Bernstein. Thus there is no evidence
8 to support the characterization of
9 Bernstein’s contact with GM.
10 10. Donny Nordlicht, a person DISPUTED. GM provides no
11 responsible for Product and evidence to support the statement
12 Technology communications at that “Nordlicht arranged” for
13 Cadillac, officed in New York City, Bernstein to borrow a Cadillac.
14 arranged for Bernstein to borrow a GM’s cited testimony shows that
15 Cadillac automobile during Bernstein claims to have contacted a
16 Bernstein’s Detroit visit. GM representative by the name of
17 Nordlicht Decl., ¶¶1, 3-4, Ex. A Stephen Martin seeking to borrow a
18 (loan agreement); Bernstein Decl., car and GM lent Bernstein a vehicle.
19 ¶6, Ex. A (loan agreement). (Bernstein Decl., ¶6). No testimony
20 is provided by either Bernstein or
21 Nordlicht that shows Nordlicht had
22 any contact with Bernstein regarding
23 the borrowing of a car and GM does
24 not otherwise establish that
25 Nordlicht “arranged” for Bernstein
26 to borrow a Cadillac.
27 11. Bernstein advised Nordlicht that DISPUTED. GM’s cited evidence is
28

GENUINE ISSUES

3 Bernstein would be taking photos Bernstein’s declaration stating he
4 during his Detroit visit and that sent an email to Stephen Miller
5 Bernstein would make them regarding the use of a car and
6 available to Cadillac to use. photographing the car. Bernstein
7 Bernstein Decl., ¶6. does not provide the purported
8 email. (Bernstein Decl., ¶6). GM has
9 presented no evidence or testimony
10 supporting the proffered statement
11 that Bernstein advised Nordlicht that
12 Bernstein would be taking photos
13 during his Detroit visit or that
14 Bernstein would make them
15 available to Cadillac to use.
16 12. Bernstein did not agree to take any DISPUTED as incomplete and
17 particular photograph and defendant lacking foundation. The cited
18 GM did not attempt to instruct Bernstein declaration refers to an
19 Bernstein or control the subject of email sent to GM but does not
20 any photos taken by Bernstein. provide the purported email.
21 Nordlicht Decl., ¶5; Bernstein Decl., (Bernstein Decl., ¶6). The cited
22 ¶6. Nordlicht declaration does not
23 establish any contact between
24 Nordlicht and Bernstein and does
25 not have a basis for personal
26 knowledge by Nordlicht of any
27 contact by others at GM with
28 Bernstein as to instructions for the

GENUINE ISSUES

3 photoshoot. (Declaration of Donny
4 Nordlicht (“Nordlicht Decl.”), ¶5).
5 13. Bernstein took four photographs DISPUTED as incomplete and
6 during his Detroit trip which lacking foundation. The cited
7 included the car he had borrowed Nordlicht and Bernstein declarations
8 from Cadillac. When he completed refer to and rely upon purported
9 his visit, he electronically sent the written communications exchanged
10 four photos to Nordlicht at Cadillac. between Bernstein and Nordlicht,
11 Nordlicht Decl., ¶6-7, Ex. B; but no such documents are provided.
12 Bernstein Decl., ¶10, Exs. B-F.
13 14. One of the photos taken by Bernstein Undisputed that a photo of
14 and sent to Cadillac was a photo Plaintiff’s Mural was taken and sent
15 from the roof top of the parking to Cadillac. Disputed as to the
16 garage building that included the characterization of the Mural.
17 elevator structure displaying (Falkner Decl., ¶¶3-6 and Exhibits B
18 Plaintiff’s mural. and C).
19 Nordlicht Decl., ¶¶6-7, Ex. B;
20 Bernstein Decl., ¶¶7-10, Exs. B-F.
21 15. Because Bernstein had heard that Undisputed that Bernstein visited the
22 there was a good view of the Detroit parking lot. Disputed as lacking
23 skyline from the rooftop of the foundation that Bernstein “had
24 parking structure at 1234 Library heard” there was a good view.
25 Street, Bernstein visited the structure (Bernstein Decl., ¶7.)
26 which was open to the public, paid
27 for a parking ticket and proceeded to
28

GENUINE ISSUES

3 the rooftop.
4 Bernstein Decl., ¶7.
5 16. Bernstein backed the loaner car up to Undisputed that Bernstein parked the
6 the outer wall, parking next to the Cadillac next to Plaintiff’s Mural.
7 elevator shaft structure and one of
8 the two sides which displayed the
9 mural.
10 Bernstein Decl., ¶¶7-8.
11 17. That side of the mural opposite Undisputed that Plaintiff’s Mural
12 Bernstein’s parked car displayed contains Plaintiff’s name and
13 Plaintiff’s name and pseudonym pseudonym. (Falkner Decl., ¶6 and
14 near the back wall and near the Exhibit C).
15 ground, approximately opposite the
16 driver’s side rear tire of the parked
17 car.
18 Bernstein Decl., ¶7-8, Exs. B, D;
19 Margolis Decl., ¶5, Ex. D.
20 18. Bernstein did not see Plaintiff’s DISPUTED. Plaintiff’s name and
21 name or pseudonym on the mural. pseudonym are prominent on the
22 Bernstein Decl., ¶8. Mural and easily seen by anyone
23 who views the Mural. (Falkner
24 Decl., ¶6 and Exhibit C; Declaration
25 of Paul Margolis, ECF Dkt. 30-4
26 (“Margolis Decl.”), ¶5 and Exhibt.
27 D).
28

GENUINE ISSUES

3 19. Bernstein chose to frame his Undisputed as to the existence of the
4 photograph from the roof top to photograph and that it was taken by
5 include one side of the two-sided Bernstein. Disputed as lacking
6 mural to the right, and to the left in foundation and incomplete
7 the photo, the Cadillac automobile testimony as to how and why
8 and a portion of Detroit’s skyline, Bernstein framed the photograph as
9 which included the historic he did.
10 Wurlitzer building and the Broderick
11 Tower, which included a humpback
12 whale mural.
13 Bernstein Decl., ¶8, Ex. B; Margolis
14 Decl., ¶¶3-5, Exs. B-D.
15 20. Bernstein was not aware that the DISPUTED. Plaintiff’s name and
16 perpendicular wall (not visible in the pseudonym are prominent on the
17 photo he took) contained Plaintiff’s Mural and easily seen by anyone
18 name or pseudonym and thus did not who views the Mural. (Falkner
19 intend to remove or alter any Decl., ¶6 and Exhibit C; Margolis
20 copyright information about the Decl., ¶5 and Exhibit D).
21 mural.
22 Bernstein Decl., ¶8
23 21. Bernstein framed his photograph on DISPUTED as lacking foundation
24 the rooftop as he did because he and incomplete testimony. Plaintiff’s
25 liked the composition of car, mural name and pseudonym are prominent
26 and skyline. It would not have been on the Mural. (Falkner Decl., ¶6 and
27 feasible to photograph the Cadillac’s Exhibit C; Margolis Decl., ¶5 and
28

GENUINE ISSUES
Case 2:18-cv-00549-SVW-JPR Document 32-1 Filed 07/02/18 Page 10 of 26 Page ID
#:225

3 front as it was parked and also Exhibit D).
4 include that part of the mural which
5 showed Plaintiff’s name.
6 Bernstein Decl., ¶¶7-8, Ex. B;
7 Margolis Decl., ¶¶3-5, Exs. B-D.
8 22. Bernstein sent the four photos he DISPUTED as lacking foundation,
9 made in Detroit which included the especially as to the assertion that no
10 car, to Donny Nordlicht in New “GM employee was aware. . .” The
11 York. Bernstein was not involved in only support provided for such
12 the decision as to which of statement is Nordlicht’s unfounded
13 Bernstein’s four photos would be and inadmissible statement of the
14 used by or for GM. Neither state of mind of unidentified “GM
15 Nordlicht nor any other GM staff” (Nordlicht Decl., ¶7).
16 employee was aware that the Nordlicht has no ability to testify as
17 Bernstein photograph did not include to the knowledge, awareness, or
18 a perpendicular wall displaying the motivations of unnamed “GM staff.”
19 mural or that such portion of the Plaintiff’s Mural has received
20 mural contained Plaintiff’s name. widespread publicity and is within
21 Bernstein Decl., ¶¶7-8, 10, Exs. B-F; walking distance of GM’s office
22 Margolis Decl., ¶¶3-5, Exs. B - D; headquarters in Detroit, making it
23 Nordlicht Decl., ¶¶6-7, Ex. B. likely that GM staff is aware of the
24 Mural and Plaintiff’s name and
25 pseudonym on the Mural. GM’s
26 social media and other postings
27 reveal that GM is familiar with
28 graffiti artwork and has often used

GENUINE ISSUES
#:226

3 and displayed such artwork in GM
4 advertising. (Margolis Decl., ¶5 and
5 Exhibit D; Falkner Decl., ¶¶1, 5, 6;
6 Patterson Decl., ¶¶4-11.)
7 23. GM’s ad agency posted Bernstein’s DISPUTED as to the date of posting.
8 photo of the mural on GM’s social As GM admitted in its answer in this
9 media sites beginning in November action, GM posted the photo of
10 2017. Plaintiff’s Mural beginning in
11 Nordlicht Decl., ¶¶6-7; FAC, ¶17. November of 2016. (GM’s Answer,
12 ECF Dkt. 23, ¶¶3, 17.)
13 24. In December 2017, Plaintiff’s DISPUTED that GM took the photo
14 counsel sent a letter to GM off its social media sites. GM
15 complaining about the use of the continues to display the infringing
16 photo and GM took the photo off its photo on its social media sites to the
17 social media sites in December present day. (Patterson Decl., ¶¶9,
18 2017. 11 and Exhibits H and J).
19 FAC, ¶¶17-18; Nordlicht Decl., ¶8.
20 25. This civil action was commenced on Undisputed.
21 January 22, 2018.
22 Cpt., Dkt. 1.
23 26. In June of 2018, an attorney for GM DISPUTED as lacking foundation
24 visited the site of the mural and took and incomplete testimony as to all
25 a series of photos showing that a but the statement that an attorney for
26 small plaque placed next to the GM visited the site of Plaintiff’s
27 entrance to the elevator from the Mural in June 2018. Plaintiff’s name
28

GENUINE ISSUES
#:227

3 roof top contained some copyright and pseudonym are prominent on the
4 management information about Mural. (Falkner Decl., ¶6 and
5 Plaintiff. The plaque does appear in Exhibit C; Margolis Decl., ¶5 and
6 Bernstein’s photograph but was Exhibit D).
7 photographed from a distance so it
8 cannot be read in the photo.
9 Bernstein was unaware of the plaque
10 or its contents. Plaintiff was also
11 unaware of the plaque as it is not
12 mentioned in his Complaint or First
13 Amended Complaint.
14 Margolis Decl., ¶3-5, Exs. B-D;
15 Bernstein Decl., ¶¶ 9-10, Exs. B-F;
16 Cpt, Dkt. 1; FAC, Dkt. 22.
17
18
19
20
21
22
23
24
25
26
27
28

GENUINE ISSUES
#:228
1 CONCLUSIONS OF LAW
4 1. This court has subject matter Undisputed.
5 jurisdiction of this matter because
6 the action is based on two federal
7 claims, for copyright infringement
8 (17 U.S.C. § 101 et seq.) and for
9 removal or alteration of copyright
10 management information in
11 violation of the DMCA (17 U.S.C.
12 §1202 et seq.). 28 U.S.C. §§ 1331,
13 1338(a)-(b).
14 2. Defendant General Motors LLC, a Undisputed.
15 limited liability company existing
16 under the laws of Delaware, has
17 admitted personal jurisdiction and
18 venue. (Answer of GM, filed April
19 4, 2018, p. 1 & n. 1, Dkt. 23).
20 3. The mural which is the subject Disputed. The mural was not a part
21 matter of the litigation was of the parking structure and was not
22 embedded and made a part of the part of any architectural work. A
23 parking structure which qualifies as PGS work that happens to be on, in,
24 an “architectural work that has been or attached to architectural work is
25 constructed” as that term is used in fully protected notwithstanding 17
26 the U.S. Copyright Act, 17 U.S. C. USC 120. Leicester v. Warner Bros.,
27 §120. (hereinafter the “Act”). 232 F.3d 1212, 1217-1220 (9th Cir.
28

GENUINE ISSUES
#:229

3 2000).
4 4. The mural which is the subject of the Disputed. 17 USC 120(a) does not
5 copyright infringement claim is apply to PGS works, even if they are
6 located in or ordinarily visible from in, on, or attached to architecture.
7 a public place and the photographer 17USC 120(a) can apply to a work
8 did not “trespass” in taking the that is claimed to be a PGS work,
9 photograph. See 1 M. & D. but only if it is in fact so integrated
10 Nimmer, Nimmer On Copyright, § into the architecture that it is part of
11 2A.09[B][4][c] at 2A-165 (2018). a unitary architectural work (i.e.,
12 Accordingly, Plaintiff’s copyright in only if there is no PGS work).
13 the Mural, if any, “does not include Leicester v. Warner Bros., 232 F.3d
14 the right to prevent the making, 1212, 1217-1220 (9th Cir. 2000).
15 distributing or public display of
16 pictures, paintings, photographs, or
17 other pictorial representations of the
18 work”. No copyright infringement is
19 alleged or proven. Leicester v.
20 Warner Bros., 232 F.3d 1212, 1213
21 (9th Cir. 2000).
22 5. At no relevant time was non-party Disputed. One who acts at the behest
23 Alex Bernstein (“Bernstein”) acting of another is acting as that person’s
24 as an employee or agent of agent and knowledge of the agent is
25 defendant GM. imputed to the principal. Santangelo
26 v. Bridgestone/Firestone, Inc., 499
27 F. App'x 727, 729 (9th Cir. 2012),
28

GENUINE ISSUES
#:230

3 citing Lazzarevich v. Lazzarevich, 39
4 Cal. 2d 48, 244 P.2d 1, 2 (Cal. 1952)
5 (finding that a client had
6 constructive knowledge of facts
7 known by his attorney).
8 6. In making the subject photograph, Disputed. Agence Fr. Presse v.
9 non-party Bernstein did not Morel, 934 F. Supp. 2d 547, 578
10 “intentionally remove or alter any (S.D.N.Y. 2013) (Section 1202
11 copyright management information” claim may be successful if at least
12 (defined in 17 U.S. C. § 1202(c)) nor one participant had knowledge of
13 can Plaintiff carry his burden of missing CMI). Friedman v. Live
14 presenting evidence that Bernstein Nation Merch., Inc., 833 F.3d 1180,
15 acted “knowing … or having 1187-1189 (9th Cir. 2016) (Bare
16 reasonable grounds to know” that his declarations of lack of knowledge of
17 photograph “will induce, enable, CMI insufficient to sustain Section
18 facilitate, or conceal an infringement 1202 burden of proof on summary
19 of any right” under the Copyright judgment).
20 Act. 17 U.S.C. §12.02 (b)(1).
21 Stevens v. CoreLogic, Inc., 194
22 F.Supp.3d 1046, 1051 (S.D. Cal.
23 2016), aff’d, ___ F.3d ___ (9th Cir.
24 6/20/18).
25 7. GM is not vicariously liable under Disputed. Agence Fr. Presse v.
26 the DMCA claim for the actions of Morel, 934 F. Supp. 2d 547, 578
27 Alex Bernstein in making the (S.D.N.Y. 2013) (Section 1202
28

GENUINE ISSUES
#:231

3 photograph of the mural. GM did claim may be successful if at least
4 not control the choices made by one participant had knowledge of
5 Bernstein and the DMCA imposes a missing CMI). Friedman v. Live
6 higher burden of proof on a plaintiff Nation Merch., Inc., 833 F.3d 1180,
7 than the strict liability standard 1187-1189 (9th Cir. 2016) (Principal
8 imposed by vicarious liability. may be liable for agent’s act in
9 removing CMI and bare declarations
10 of lack of knowledge of CMI are
11 insufficient to sustain Section 1202
12 burden of proof on summary
13 judgment).
14 8. In distributing and displaying the Disputed. Agence Fr. Presse v.
15 subject photograph, Defendant Morel, 934 F. Supp. 2d 547, 578
16 General Motors did not “distribute” (S.D.N.Y. 2013) (Section 1202
17 “copyright management claim may be successful if at least
18 information” (defined in 17 U.S. C. one participant had knowledge of
19 § 1202(c)) “knowing” that the missing CMI). Friedman v. Live
20 copyright management information Nation Merch., Inc., 833 F.3d 1180,
21 has been removed or altered” nor 1187-1189 (9th Cir. 2016) (Principal
22 can Plaintiff carry his burden of may be liable for agent’s act in
23 presenting evidence that GM acted removing CMI and bare declarations
24 “knowing … or having reasonable of lack of knowledge of CMI are
25 grounds to know” that the insufficient to sustain Section 1202
26 photograph “will induce, enable, burden of proof on summary
27 facilitate, or conceal an infringement judgment).
28 of any right” under the Copyright

GENUINE ISSUES
#:232

3 Act. 17 U.S.C. §1202 (b)(2).
4 Stevens v. CoreLogic, Inc., 194
5 F.Supp.3d 1046, 1051 (S.D. Cal.
6 2016), aff’d, ___ F.3d ___ (9th Cir.
7 6/20/18).
8 9. In distributing or publicly Disputed. Agence Fr. Presse v.
9 performing the subject photograph, Morel, 934 F. Supp. 2d 547, 578
10 Defendant General Motors did not (S.D.N.Y. 2013) (Section 1202
11 “distribute” or “publicly perform” claim may be successful if at least
12 copies of the Mural knowing that one participant had knowledge of
13 “copyright management missing CMI). Friedman v. Live
14 information” (defined in 17 U.S. C. Nation Merch., Inc., 833 F.3d 1180,
15 § 1202(c)) had been removed or 1187-1189 (9th Cir. 2016) (Principal
16 altered nor can Plaintiff carry his may be liable for agent’s act in
17 burden of presenting evidence that removing CMI and bare declarations
18 GM acted “knowing … or having of lack of knowledge of CMI are
19 reasonable grounds to know” that insufficient to sustain Section 1202
20 the photograph “will induce, enable, burden of proof on summary
21 facilitate, or conceal an infringement judgment). Further, despite knowing
22 of any right” under the Copyright through this lawsuit of the infringing
23 Act. 17 U.S.C. §1202 (b)(3). nature of the photograph, GM
24 Stevens v. CoreLogic, Inc., 194 continues to post the infringing
25 F.Supp.3d 1046, 1051 (S.D. Cal. photograph without CMI through the
26 2016), aff’d, ___ F.3d ___ (9th Cir. present and as such is liable under
27 6/20/18). Section 1202. Goldstein v. Metro.
28 Reg'l Info. Sys., Inc., No. 15-CV-

GENUINE ISSUES
#:233

3 2400, 2016 U.S. Dist. LEXIS
4 106735, 2016 WL 4257457, at *8
5 (D. Md. Aug. 11, 2016).
6 10. Defendant GM is entitled to Disputed.
7 judgment of dismissal on the second
8 claim for alleged violations of
9 DMCA §1202.
10 11. Sections 502-505 and 1203 of the Disputed. Punitive damages are not
11 Act specify the remedies available categorially barred in connection
12 for infringement of copyright and for with the copyright and DMCA
13 violation of the DMCA regarding claims in this lawsuit. Punitive
14 copyright management information, damages may be available where the
15 which include remedies designed to requisite malice is established. TVT
16 deter and punish violators. A Records v. Island Def Jam Music
17 separate common law remedy for Grp., 262 F. Supp. 2d 185, 187
18 “punitive damages” is not permitted. (S.D.N.Y. 2003).
19 4 Nimmer, §14.02[C][2] at 14-33 to -
20 38 & nn. 132-133 (collecting
21 decisions); Davis v. The Gap, Inc.,
22 246 F.3d 152, 172 (2d Cir. 2001).
23 Defendant GM is entitled to have the
24 prayer for an award of punitive
25 damages stricken from the FAC.
26
27
28

GENUINE ISSUES
#:234
1 PLAINTIFF’S ADDITIONAL UNDISPUTED FACTS

2 PLAINTIFF’S SUBMITTED EVIDENCE
3 UNDISPUTED FACTS
4 1. Bernstein was acting as GM’s agent Bernstein Decl., ¶6; Nordlicht Decl.,
5 when Bernstein photographed ¶3; Patterson Decl., ¶¶ 2-3, 12-15.
6 Plaintiff’s Mural.
7 2. GM distributed the infringing Margolis Decl., ¶5 and Exhibit D;
8 photograph of Plaintiff’s Mural Falkner Decl., ¶6 and exhibit C;
9 knowing that “copyright Patterson Decl., ¶¶2-3, 9, 11 and
10 management information” (defined Exhibits A-J.
11 in 17 U.S. C. § 1202(c)) had been
12 removed or altered and GM acted
13 “knowing … or having reasonable
14 grounds to know” that the
15 photograph “will induce, enable,
16 facilitate, or conceal an
17 infringement of any right” under the
18 Copyright Act. 17 U.S.C. §1202
19 (b)(3).
20 3. GM has worked with photographer Bernstein Decl., ¶6; Patterson Decl.,
21 Alex Bernstein on numerous ¶¶2-3, 9-12.
22 occasions.
23 4. Plaintiff’s Mural prominently Falkner Decl., ¶6 and Exhibit C;
24 displays copyright management Margolis Decl., ¶5 and Exhibit D.
25 information.
26 5. GM often uses graffiti displays and Patterson Decl., ¶¶4-11 and exhibits.
27 other artwork in its advertising.
28

GENUINE ISSUES
#:235

2 UNDISPUTED FACTS
3 6. GM continues through the present Patterson Decl., ¶¶9, 11.
4 to post the photograph of Plaintiff’s
5 Mural on GM social media sites,
6 without the copyright management
7 information.
8 7. GM began posting the photograph GM Answer, ECF 23, ¶¶3, 17;
9 of Plaintiff’s Mural without Patterson Decl., ¶¶9, 11 and exhibits.
10 copyright management information
11 on GM social media sites in
12 November 2016 in connection with
13 GM’s “Art of the Drive” advertising
14 campaign. GM continues posting
15 the infringing photograph through
16 the present day.
17 8. GM has not provided any discovery Patterson Decl., ¶¶16-18.
18 in this action, has not produced any
19 documents, and has not presented
20 any witnesses for deposition.
21 9. Plaintiff Adrian Falkner (“Falkner”) Falkner Decl. ¶1.
22 is a Swiss artist, well known for his
23 paintings, including large scale
24 street murals.
25 10. Falkner paints under the pseudonym Falkner Decl. ¶ 1.
26 “Smash137,” and has exhibited his
27 work in galleries and art fairs
28

GENUINE ISSUES
#:236

2 UNDISPUTED FACTS
3 around the world.
4 11. In October 2013, Falkner had a solo Falkner Decl. ¶ 1; Exh. A.
5 exhibition of his paintings at the
6 Library Street Collective in Detroit.
7 12. Falkner was approached by Falkner Decl. ¶ 2.
8 Anthony Curis, who is Director of
9 Library Street Collective LLC
10 (“LSC”), who explained that the
11 LSC was curating a project of
12 murals to be painted throughout a
13 Detroit parking garage. Curis
14 informed Falkner that the garage
15 and attached building were owned
16 by 1234 Library LLC, who had
17 contracted with LSC to curate the
18 project.
19 13. Falkner accepted the offer to paint a Falkner Decl. ¶ 3.
20 mural in the garage, and he travelled
21 to Detroit in or about October 2013,
22 to paint the mural.
23 14. Falkner was allowed to choose Falkner Decl. ¶ 3.
24 where in the garage to paint his
25 mural. Falkner chose the tenth floor
26 elevator shed because it was the top
27 floor, which featured natural light
28

GENUINE ISSUES
#:237

2 UNDISPUTED FACTS
3 and city views. He chose the
4 elevator structure because it offered
5 two perpendicular walls, which
6 would make for an interesting
7 mural.
8 15. Falkner was afforded complete Falkner Decl. ¶ 4.
9 creative freedom with respect to the
10 mural. He was given absolutely no
11 aesthetic or other manner or
12 direction in his creation of the
13 mural, and was not told of any
14 function that the mural should play,
15 architectural or otherwise.
16 16. The architecture of the parking Falkner Decl. ¶ 4.
17 garage and accompanying building
18 were already complete before
19 Falkner started painting.
20 17. Falkner never met the architect or Falkner Decl. ¶ 4.
21 any other member of the building’s
22 design team. The only
23 representative of the owner Falkner
24 talked to was Mr. Curis—who was
25 clear that he could paint whatever
26 he wanted.
27 18. Falkner chose to create the mural Falkner Decl. ¶ 5; Exh. B
28

GENUINE ISSUES
#:238

2 UNDISPUTED FACTS
3 using themes, and motifs that were
4 similar to those used on the
5 paintings that were exhibited in his
6 solo show at the Library Street
7 Collective, and which had been
8 completed months earlier (long
9 before he had heard of the Detroit
10 mural project).
11 19. As he has done with all of his large Falkner Decl. ¶ 6; Exh. C.
12 mural projects, Falkner finished the
13 mural by painting his signature
14 “Smash137.”
15 20. The architecture of the garage Falkner Decl. ¶ 7.
16 played no role in Falkner’s creative
17 process, and under no circumstances
18 can it be said that his mural is
19 somehow a part of the architecture,
20 which he found to be plain, and
21 purely functional.
22
23 PLAINTIFF’S ADDITIONAL CONCLUSIONS OF LAW

24 PLAINTIFF’S SUBMITTED AUTHORITY
25 CONCLUSION OF LAW.
26 1. The definition of “architectural 17 U.S.C. § 101; 37 C.F.R. §
27 work” excludes utilitarian 202.11(b)(2); Gaylord v. United
28

GENUINE ISSUES
#:239

3 structures, such as bridges and States, 595 F.3d 1364, 1371 (Fed. Cir.
4 walkways, that humans “access” but 2010).
5 do not “occupy.”
6 2. The definition of “architectural 17 U.S.C. § 101;37 C.F.R. §
7 work” excludes non-creative design 202.11(d)(2); House Report 107-735,
8 and “standard features.” at p. 18.
9 3. GM fails to establish that the 17 U.S.C. § 101; 37 C.F.R. §
10 parking garage or elevator shed 202.11(b)(2); Gaylord v. United
11 exhibit anything more than standard States, 595 F.3d 1364, 1371 (Fed. Cir.
12 features or function-dictated design. 2010).
13 4. Copyright protection is limited to Feist Publ'ns, Inc. v. Rural Tel. Serv.
14 “original” works-and “originality” Co., 499 U.S. 340, 349-50.
15 requires independent creation and at
16 least “a modicum of creativity."
17 5. Plaintiff’s mural is protected by a Leicester v. Warner Brothers, 232
18 garden-variety “pictorial, graphic or F.3d 1212 (9th Cir. 2000).
19 sculptural” copyright—and as such
20 17 U.S.C. 120(a) does not apply.
21 6. GM fails to establish that it is not Agence Fr. Presse v. Morel, 934 F.
22 liable under Section 1202 for Supp. 2d 547, 578 (S.D.N.Y. 2013)
23 distribution of the infringing photo (Section 1202 claim may be
24 without copyright management successful if at least one participant
25 information. had knowledge of missing CMI).
26 Friedman v. Live Nation Merch., Inc.,
27 833 F.3d 1180, 1187-1189 (9th Cir.
28

GENUINE ISSUES
#:240

3 2016) (Principal may be liable for
4 agent’s act in removing CMI and bare
5 declarations of lack of knowledge of
6 CMI are insufficient to sustain Section
7 1202 burden of proof on summary
8 judgment). Goldstein v. Metro. Reg'l
9 Info. Sys., Inc., No. 15-CV-2400, 2016
10 U.S. Dist. LEXIS 106735, 2016 WL
11 4257457, at *8 (D. Md. Aug. 11,
12 2016) (continuing distribution of
13 offending post following Section 1202
14 challenge equates to willfulness by
15 defendant).
16
17
18
19
20
21
22
23
24
25
26
27
28

GENUINE ISSUES
#:241
1
DATED: July 2, 2018 ERIKSON LAW GROUP
3
By: /s/
4 Antoinette Waller
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

GENUINE ISSUES

3 Telephone: 310.776.7413
4 ERIKSON LAW GROUP

Telephone: 323.465.3100
7 Facsimile: 323.465.3177
9
12

15 v. PLAINTIFF’S EVIDENTIARY
OBJECTIONS (RE: DEFENDANT
16 GENERAL MOTORS LLC; and DOES GENERAL MOTORS LLC’S
1-10 inclusive. EVIDENCE SUBMITTED IN
17 SUPPORT OF MOTION FOR
Defendants. SUMMARY JUDGMENT)
18
Date: July 23, 2018
19 Time: 1:30 pm
Courtroom: 10A
20
21
Pursuant to the Federal Rules of Civil Procedure Rule 56(c), and Local Rules
22
7-7 and 7-8, Plaintiff Adrian Falkner (“Falkner”) submits the following evidentiary
23
objections to the declarations offered in support of Defendant’s motion for summary
24
judgment. Plaintiff requests that the evidence objected to be stricken from the
25
record, and not be afforded any evidentiary weight in the determination of
26
Defendant’s motion.
27
28
1 PLAINTIFF’S EVIDENTIARY OBJECTIONS

1 DECLARATION OF DONNY NORDLICHT [ECF Doc. 30-6]

2 Text Evidentiary Objection
3 4. ¶4, l. 13: It is GM's policy, prior 4. Lack of foundation. The declarant
4 to lending media fleet vehicles, to have offers no basis for being able to state
5 the "borrower" sign . . . what “GM’s policy” is as to loaning
6 media fleet vehicles.
7
8 4. ¶ 4, ll. 18-19 and Exhibit A: A 4. Exhibit A is an incomplete document,

9 copy of this [Loan of Vehicle redacting not only “personal”
10 Agreement] signed by Bernstein, with information but also the Mileage used
11 Bernstein's personal information over the four days Mr. Bernstein had
12 redacted, is attached hereto as Exhibit the car. [“Mileage Out” and “Mileage
13 A. In” totals.]
14
15 6. ¶6, ll: 14-16: GM sent the color 6. Lack of foundation. The declarant
16 version of photograph of the XT5 does not state who at “GM” sent the
17 parked on the rooftop to Rokkan, photograph to Rokkan and does not
18 GM's advertising agency, and Rokkan provide any basis for knowing that
19 posted the picture on Cadillac's. “GM” sent the photograph to Rokkan or
20 Twitter, Facebook and Instagram that Rokkan posted the picture to
21 accounts. Cadillac’s accounts.
22
23 7. ¶7, ll: 20-25: At the time GM staff 7. Lack of foundation. The declarant
24 received the photograph and at the time has no basis to state the knowledge,
25 GM staff arranged for it to be posted intent, or activity of unidentified “GM
26 on social media, GM staff had no idea staff.”
27 that the mural covered another wall,
28 much less that a signature appeared on

1 this other wall. GM staff were also

2 unaware that there was a plaque
3 pictured in the photograph, near the
4 entrance to the elevator, which I have
5 recently learned contained the mural’s
6 title and name of the artist.
7
8 DECLARATION OF ALEX BERNSTEIN [ECF Doc. 30-2]

9 Text Evidentiary Objection
10
11 3. ¶3, l. 9: At no time in 2016 was I an 3. Improper legal conclusion. Lack of

12 employee or agent of Cadillac or of foundation. Mr. Bernstein has no basis
13 GM. to characterize his status vis-à-vis his
14 working relationship with GM. Mr.
15 Bernstein’s statements that GM
16 provided Bernstein the use of a new
17 Cadillac XT5 (a newly debuting car
18 model) for four days and in exchange
19 Bernstein took photographs of the car
20 and gave them to GM for its use in
21 advertising (Bernstein Decl., ¶6) present
22 a classic example of a contractor or
23 agency relationship.
24
25 6. ¶6: I needed a car to get around in 6. Lack of foundation, best evidence,

26 Detroit, so I emailed Stephen Martin at hearsay. Declarant refers to purported
27 Cadillac, a division of GM, and asked statements made in an email that has not
28 whether they had a car they could loan been produced. As to Exhibit A, it is an

1 me during my time in Detroit. I also incomplete document, redacting

2 mentioned that I could take a few information including the “Mileage
3 photographs of the vehicle that GM Out” and “Mileage In” totals.
4 could use for marketing. GM lent me
5 the use of 2017 Cadillac XTS
6 automobile. A true copy of the loan
7 agreement I signed is attached to this
8 Declaration as Exhibit "A''. No one at
9 GM (including Cadillac) gave me any
10 instructions as to what sort of
11 photographs to take or how many
12 photographs to take. They did not
13 suggest the composition of my
14 photographs.
15
16
17
DATED: July 2, 2018 ERIKSON LAW GROUP
18
19
By: /s/
20 Antoinette Waller
22
23
24
25
26
27
28

EXHIBIT A.
ADRIAN FALKNER, 'DISCLOSURE' — Library Street Collective 6/30/18, 4*03 PM
Exhibitions Artists Projects Info
! !
http://www.lscgallery.com/adrian-falkner-disclosure/ Page 1 of 2
ADRIAN FALKNER, 'DISCLOSURE' — Library Street Collective 6/30/18, 4*03 PM
ADRIAN FALKNER, DISCLOSURE

OCTOBER 2013
In the early 90's Adrian Falkner embarked on what would become a journey of passion and
spiritual awakening. Of course, he may not have known this at the time but he was about to pave
the way for many young artists to break the mould of what is commonly accepted as GraCti.
Through his dedication to typography and innovation in abstract spatial relations Falkner has
focused the lens through which we experience street art. The evolution into and back out of
SMASH137 has been a textbook exercise in the mastery of an art form. From humble beginnings
on the walls of Basel Switzerland to the international art gallery scene, Falkner has proven that
practice makes perfect, or at least, hard work and good instincts lead to good things.
Transitioning onto the canvas for a graCti writer is a bold proposition, usually resulting in what
you would expect... graCti on canvas. The transition for Falkner however is unique, his writings
always belonged on a canvas making the transition effortless.
For more information or to receive a catalog of available works, please contact

info@lscgallery.com.
ADRIAN FALKNER
Adrian Falkner was born in Basel, Switzerland in 1979, where he still lives and works today. In
1990 he began painting graCti on trains and walls, and in 2000 began studying graphic design in
Zurich, Switzerland. Falkner's style has strongly inQuenced the international Writers’ scene for
years; driven by his obsession for Western calligraphy, he is today one of the most active writers
worldwide. Falkner has been participating in many GraCti Jams and competitions, and has been
one of the members of the prestigious “Montana Writers Team” since 2002. Falkner shows his
work in galleries and public art spaces worldwide.
PRESS INQUIRIES
Sara Nickleson | Library Street Collective | info@lscgallery.com
http://www.lscgallery.com/adrian-falkner-disclosure/ Page 2 of 2
EXHIBIT B.
EXHIBIT C.
#:255

3 Telephone: 310.776.7413
4 ERIKSON LAW GROUP

5 S. Ryan Patterson (SBN 279474)
Antoinette Waller (SBN 152895)
6 200 North Larchmont Boulevard
7 Telephone: 323.465.3100
Facsimile: 323.465.3177
8
Attorneys for Plaintiff
9
10
UNITED STATES DISTRICT COURT
11
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
12
13
ADRIAN FALKNER, an individual; Case No. 2:18-cv-00549-SVW-JPR
14
Plaintiff, Honorable Stephen V. Wilson
15
v. DECLARATION OF S. RYAN
16 PATTERSON IN SUPPORT OF
GENERAL MOTORS LLC; and DOES PLAINTIFF’S OPPOSITION TO
17 1-10 inclusive. MOTION FOR SUMMARY
JUDGMENT
18 Defendants.
Date: July 23, 2018
19 Time: 1:30 pm
Courtroom: 10A
20
21
DECLARATION OF S. RYAN PATTERSON
22
I, S. Ryan Patterson declare as follows:
23
1. I am an attorney, duly licensed to practice law in the State of
24
California. I am counsel of record for Plaintiff Adrian Falkner in this matter. I make
25
this declaration based on my personal knowledge and in support of Falkner’s
26
opposition to Defendant GM’s Motion for Summary Judgment.
27
2. On June 26, 2018, I searched the Instagram account @bernooo, which
28
1 DECLARATION OF S. RYAN PATTERSON

1 is owned and controlled by the photographer Alex Bernstein. I found a post from
2 this account, dated August 11, 2016, consisting of an image of a Cadillac SUV, with
3 the caption “Detroit exploration vehicle. All about this front end.” The Instagram
4 account @Cadillac, which is owned and controlled by Defendant General Motors,
5 LLC (“GM”), was tagged in this post. A true and correct copy of this post is
6 attached as Exhibit A.
7 3. I found another post on Mr. Bernstein’s @bernooo Instagram account,

8 dated October 3, 2016, consisting of an image of a Cadillac vehicle with the caption
9 “Been a fun few days shooting and directing with this 640hp monster in the desert.
10 I’ll be sad to give it back to @cadillac.” GM’s Instagram account @Cadillac was
11 tagged in this post. A true and correct copy of this post is attached as Exhibit B.
12 4. On June 27, 2018, I searched the Instagram account @Cadillac, which

13 is owned and controlled by GM. I found an August 10, 2016 post of a video
14 showing the creation of a graffiti-style mural in Los Angeles, with the caption
15 “Make a Statement this summer #Cadillac #XT5.” True and correct copies of still
16 images from this video are attached as Exhibit C.
17 5. I found another post on GM’s @cadillac Instagram account dated

18 October 28, 2016, consisting of an image of a Cadillac XT5 in front of a graffiti
19 mural. A true and correct copy of this post is attached as Exhibit D.

21 November 30, 2016, consisting of an image of the interior of a car, with the caption
22 “Great art can be framed but not contained. Explore the #ArtOfDaring with us at
23 #ArtBaselMiami.” A true and correct copy of this post is attached as Exhibit E.

25 December 2, 2016, consisting of an image of an artist painting a Cadillac SUV, with
26 the caption “@chuck.did.it kicked #ArtBaselMiami into high gear with the Escalade
27 as his canvas. #ArtOfDaring.” A true and correct copy of this post is attached as
28 Exhibit F.


2 December 3, 2016, consisting of a video of an artist painting a Cadillac SUV, with
3 the caption “Watch how @chuck.did.it turned an Escalade into his own portable Art
4 Show at #ArtBaselMiami. #ArtofDaring @RevoltTV.” True and correct copies of
5 still images from this video are attached as Exhibit G.
6 9. On June 27, 2018, I searched the Instagram account @GM_Diversity,

7 which GM. I found a December 3, 2016 post featuring the unauthorized image of
8 Plaintiff’s mural, next to GM’s Cadillac XT5. The caption of this post stated that it
9 was “re-posted” from GM’s @cadillac Instagram account. A true and correct copy
10 of this post is attached as Exhibit H.
11 10. I found two other posts on GM’s @GM_Diversity Instagram account

12 dated December 3, 2016, showing an artist painting graffiti style artwork on a
13 Cadillac SUV. According to the details accompanying these posts, the image and
14 video were captured at the 2016 Art Basel fair in Miami Beach, and “re-posted”
15 from GM’s @cadillac Instagram account. True and correct copies of these posts,
16 and a printout of GM’s @GM_Diversity account showing these posts in descending
17 chronological order is attached as Exhibit I.
18 11. On June 27, 2018, I searched the Instagram account @Cadillac_News.

19 I found a December 3, 2016 post featuring the unauthorized image of Plaintiff’s
20 mural, next to GM’s Cadillac XT5. A true and correct copy of this post is attached
21 as Exhibit J.
22 12. The website www.behance.net includes a post titled, “Cadillac CTS-V

23 with Alex Bernstein” and listed as submitted by Alex Bernstein on November 21,
24 2016. A true and correct copy of this post printed on July 1, 2018, is attached as
25 Exhibit K.
26 13. On June 28, 2018, I searched Mr. Bernstein’s @bernooo Instagram

27 account. I found a post dated February 26, 2016, showing an image of a Cadillac
28 vehicle, with GM’s @cadillac Instagram account tagged. I also found a series of five

1 posts consisting of images of GM’s Chevrolet Camaro SS, dated between March 28,
2 2016, and April 1, 2016; and another post dated May 5, 2016, consisting of an
3 image of GM’s Chevrolet Camaro SS. The Instagram account @chevrolet, which is
4 owned and controlled by GM, was tagged in all of these posts. True and correct
5 copies of these posts are attached as Exhibit L.
6 14. I also found a post on Mr. Bernstein’s @bernooo Instagram account

7 consisting of a video featuring GM’s Cadillac CTS-V vehicle. GM’s @cadillac
8 Instagram account is tagged in this post. A true and correct copy of still images from
9 this post is attached as Exhibit M.

10 15. On July 2, 2018, I searched the website of Anderson Hopkins, Mr.
11 Bernstein’s photography agency. I found a post, dated December 6, 2017,
12 announcing that Mr. Bernstein had been chosen to “shoot the 2019 Corvette ZR1
13 supercar for it’s [sic] global launch.” A true and correct copy of this post is attached
14 as Exhibit N.
15 16. GM filed its summary judgment motion before any discovery was
16 taken in this matter. GM has not produced any documents to date or provided any
17 witness for deposition. The declarations of Alex Bernstein and Donny Nordlicht
18 filed in support of GM’s summary judgment motion were provided to Plaintiff for
19 the first time with service of the summary judgment papers. In his declaration Mr.
20 Bernstein claims he sent an email to GM in which Mr. Bernstein allegedly expressed
21 his intent in borrowing a GM vehicle in August 2016 and providing photographs to
22 GM for use in marketing, including the infringing photograph that is the subject of
23 this lawsuit. The email is not attached as an exhibit. Mr. Bernstein further refers to
24 other written communications he purportedly had with GM concerning the
25 photoshoot that is the subject of Plaintiff’s claims. In his declaration, Mr. Nordlicht
26 also refers to written communications he purportedly had concerning the August
27 2016 photoshoot and GM’s posting of the infringing photo on GM social media sites
28 in November 2016. None of the written communications referenced in Messrs.

1 Bernstein or Nordlicht’s declarations have been produced or provided to Plaintiff.
2 17. In accord with Federal Rule of Civil Procedure Rule 56(d), if the Court
3 is not inclined to deny GM’s summary judgment on the current record, Plaintiff
4 respectfully requests the opportunity to conduct the following discovery: Plaintiff
5 seeks to depose and cross-examine GM witnesses Donny Nordlicht and Alex
6 Bernstein and requests those depositions from GM. (GM’s counsel has advised that
7 it is counsel for witness Bernstein). Plaintiff also seeks discovery as to the
8 communications between GM and Bernstein, including the email referenced in
9 Bernstein’s declaration that he says he sent to GM to initially request the use of a

10 vehicle in August 2016 and in which Bernstein claims he “mentioned that I could
11 take a few photographs of the vehicle that GM could use for marketing.” [Bernstein
12 Decl., ¶6]. Plaintiff seeks all communications between Bernstein and any person at
13 GM during the past five years concerning any photoshoot, car review, or work
14 proposal.
15 18. Plaintiff additionally seeks discovery as to GM’s communications and

16 documents concerning the August 2016 XT5 photoshoot and GM’s posting of the
17 infringing photograph, including the identity of, and all communications and
18 documents involving, the unnamed “GM staff” referenced in the Nordlicht
19 declaration that “received” the infringing photograph and “arranged for it to be
20 posted on social media.” [Nordlicht Decl., ¶7]. This request includes all
21 communications with GM’s advertising agency Rokkan involving the infringing
22 photograph.
23 19. Attached as Exhibit O is a true and correct copy of House of

24 Representatives Report 101-735, re the Copyright Amendments Act of 1990,
25 published September 21, 1990; which I obtained from Lexis Nexis.
26 ///
27 ///
28 ///

1 ///
2 I declare under penalty of perjury under the laws of the United States that the
3 foregoing is true and correct.
4 Dated this 2nd day of July, 2018, at Los Angeles, California.

5
6 _______________________________
7 S. Ryan Patterson
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

EXHIBIT A.
Alex Bernstein on Instagram: “Detroit exploration vehicle. All about this front end.” 6/26/18, 1(58 PM
Search Search Sign Up Log In
T
e
x
t
bernooo • Follow
Detroit, Michigan
bernooo Detroit exploration vehicle. All

about this front end.
psuslov Looks sick!!)
pierrewikberg I need Cadillac
_jessefung Work of art
jdmbooger
holgerkurtward @bernooo awesome
carljonesphoto @bernooo are you from
around here? Detroit that is!
Like Comment
cadillac
252 likes
AUGUST 11, 2016
Log in to like or comment. More optio
ABOUT US SUPPORT BLOG PRESS API JOBS PRIVACY TERMS DIRECTORY PROFILES
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BI-70DogEeh/?taken-by=bernooo Page 1 of 1
EXHIBIT B.
Case 2:18-cv-00549-SVW-JPR Document 32-4 Filed 07/02/18 Page 10 of 92 Page
” ID
Alex Bernstein on Instagram: “Been a fun few days shooting and directin…p monster in the desert. I'll be sad to give it back to @cadillac.
6/26/18, 2(41 PM
#:265
bernooo • Follow
bernooo Been a fun few days shooting and

directing with this 640hp monster in the
desert. I'll be sad to give it back to
@cadillac.
psuslov
thefovrth
brooksforester crenshaw84 Ooooooofa
pierrewikberg Would!
cadillac
psuslov ooramusic mmm that is a sexy car!!
dcchavez @pierrewikberg
jeffv0 Like Comment
384 likes
OCTOBER 3, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BLHs1QuAm62/?taken-by=bernooo Page 1 of 1
#:266
EXHIBIT C.
Case 2:18-cv-00549-SVW-JPR Document 32-4 Filed 07/02/18 Page 12 of 92 Page 6/27/18,
Cadillac on Instagram: “Make a statement this summer. #Cadillac #XT5” ID 2)54 PM
#:267
cadillac • Follow
cadillac Make a statement this summer.

#Cadillac #XT5
Load more comments
d7mto ‫﮲ﻀﻞ ﺣﺴﺎب ﻟﻠﺤﺐ‬
‫@ اڡ‬mm7medd
thebear70 Goofy
johnnyfootwerk @drkchild79
wkm1382 @forza_racing965 @kweild1190
1217medina Love it
papirrrrriqui Awesome
karly2118 @naomilaz
Like Comment
45,566 views
AUGUST 10, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BI8LFtjgysL/?taken-by=cadillac Page 1 of 1
#:268
cadillac • Follow

#Cadillac #XT5
Load more comments
‫@ اڡ‬mm7medd
thebear70 Goofy
1217medina Love it
karly2118 @naomilaz
Like Comment
45,566 views
AUGUST 10, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
#:269
cadillac • Follow

#Cadillac #XT5
Load more comments
‫@ اڡ‬mm7medd
thebear70 Goofy
1217medina Love it
karly2118 @naomilaz
Like Comment
45,566 views
AUGUST 10, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
#:270
cadillac • Follow

#Cadillac #XT5
Load more comments
‫@ اڡ‬mm7medd
thebear70 Goofy
1217medina Love it
karly2118 @naomilaz
Like Comment
45,566 views
AUGUST 10, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
#:271
cadillac • Follow

#Cadillac #XT5
Load more comments
‫@ اڡ‬mm7medd
thebear70 Goofy
1217medina Love it
karly2118 @naomilaz
Like Comment
45,566 views
AUGUST 10, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
#:272
EXHIBIT D.
Case 2:18-cv-00549-SVW-JPR Document 32-4 Filed 07/02/18 Page 18 of 92 Page6/27/18,
ID 11)40 AM
Cadillac on Instagram: “Strikingly bold and supremely balanced, the #Cadillac #XT5 crossover is tailored for life.”
#:273
cadillac • Follow
cadillac Strikingly bold and supremely

balanced, the #Cadillac #XT5 crossover is
tailored for life.
Load more comments
enzoschwaab Especially if the woman walks
away?
tito_escombro The woman is a Mustang
silviabfolkl Vou ter que levar o meu
eternamente kkkk @beetlemaniatshirts
carl0s197 Nice
Like Comment
16,087 likes
OCTOBER 28, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BMHdFI3gpCl/?taken-by=cadillac Page 1 of 1
#:274
EXHIBIT E.
ID 12)11 PM
Cadillac on Instagram: “Great art can be framed but not contained. Explore the #ArtOfDaring with us at #ArtBaselMiami”
#:275
cadillac • Follow
Art Basel Miami Beach
cadillac Great art can be framed but not

contained. Explore the #ArtOfDaring with us
at #ArtBaselMiami
leo.mf
britneybeckfoord
sina_skater zhooooooon
leoalain @cadillac very bad marketing at ur
GM Middle East i never thought that the
princible of the american marketing logic
ways are drop down like that , they commite
with u at fighr booked price and after 2
Like Comment
8,174 likes
NOVEMBER 30, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BNc8Fxqj6dQ/?tagged=artofdaring Page 1 of 1
#:276
EXHIBIT F.
ID 11)38 AM
Cadillac on Instagram: “@chuck.did.it kicked #ArtBaselMiami into high gear with the Escalade as his canvas. #ArtOfDaring”
#:277
cadillac • Follow
MAPS Backlot
cadillac @chuck.did.it kicked

#ArtBaselMiami into high gear with the
Escalade as his canvas. #ArtOfDaring
Load more comments
danaxx1 @showoff
p4tty.cake @konstancja_szymanska
sandoshow @motorsinmotion
@protechbizsystems
justinwadlington @chuck.did.it major
gooddeedsalim BEST AROUND
Like Comment
12,056 likes
DECEMBER 2, 2016
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#:278
EXHIBIT G.
ID 11)40 AM
Cadillac on Instagram: “Watch how @chuck.did.it turned an Escalade… own portable Art Show at #ArtBaselMiami. #ArtofDaring @RevoltTV”
#:279
cadillac • Follow
MAPS Backlot
cadillac Watch how @chuck.did.it turned an

Escalade into his own portable Art Show at
#ArtBaselMiami. #ArtofDaring @RevoltTV
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mekataisai Defaced, Vandalized, Ruined
e_ramon62 Dumb
paulgab1965 WHY??????????
forex.guy Brilliant
jmichaelray He went hard though!
@dontkillmills
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#:280
cadillac • Follow
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ID 11)41 AM
#:281
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ID 11)41 AM
#:282
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#:283
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#:284
EXHIBIT H.
Case 2:18-cv-00549-SVW-JPR Document 32-4
GM Diversity on Instagram: “#Repost @cadillac with @repostapp
The art of Filed
the drive — the 07/02/18 Page 30 of 92 Page6/27/18,
2017 Cadillac #XT5.” ID 12)10 PM
#:285
gm_diversity • Follow
gm_diversity #Repost @cadillac with

@repostapp
The art of the drive — the 2017 Cadillac

#XT5.
Like Comment
curlytreatsfest, curlytreatskids,
theartofjuly19, nick_lip, cosmicchristine,
shadbalch, lbookerjr77, fkabigdaddy and
dalloonkbh like this
DECEMBER 3, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BNkgieQBZZ3/?taken-by=gm_diversity Page 1 of 1
#:286
EXHIBIT I.
Case 2:18-cv-00549-SVW-JPR Document 32-4 Filed
…iami into high gear 07/02/18
with the Page
Escalade as his 32#ArtOfDaring”
canvas. of 92 Page6/27/18,
ID 12)07 PM
#:287

@repostapp
@chuck.did.it kicked #ArtBaselMiami into

high gear with the Escalade as his canvas.
#ArtOfDaring
Like Comment
16 likes
DECEMBER 3, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BNkgqnBBTcc/?tagged=artofdaring Page 1 of 1
Case 2:18-cv-00549-SVW-JPR Document 32-4intoFiled
his own07/02/18
… an Escalade Page
portable Art Show 33 of 92 Page6/27/18,
at #ArtBaselMiami.…” ID 12)06 PM
#:288

@repostapp
Watch how @chuck.did.it turned an

cosmicchristine
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HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BNkgx_ghkqW/?tagged=artofdaring Page 1 of 1
GM Diversity (@gm_diversity) • Instagram photos and videos ID 12)10 PM
#:289
gm_diversity Follow
365 posts 1,642 followers 1,231 following
GM Diversity Building authentic relationships. Sharing

engaging stories. Celebrating community connections.
#GMDiversity Privacy Statement – http://s.chevy.com/pSD
www.nnpa.org/dtu/online-application
https://www.instagram.com/gm_diversity/ Page 1 of 25
GM Diversity (@gm_diversity) • Instagram photos and videos ID 12)10 PM
#:290
https://www.instagram.com/gm_diversity/ Page 22 of 25
#:291
EXHIBIT J.
ID 12)19 PM
cadillac news on Instagram: “The art of the drive — the 2017 Cadilla…like #like #like4follow #followme #follow4follow #cadillacnews #gm…”
#:292
cadillac_news • Follow
cadillac_news The art of the drive — the

2017 Cadillac XT5.
#flower #flowers #like4like #like #like4follow

#followme #follow4follow
#cadillacnews #gm #cadillac #cadillacxt5
#cadillacescala #luxury #Cars#auto#car #
#cheve #generalmotors #likeforlike
#liker #cadillacct6 #cadillacEscalade
Like Comment
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peninsula_gm, javalava229, dunay_i,
felixtegel, fa6o.oma_ and
saensloyson_photography like this
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HASHTAGS LANGUAGE
© 2018 INSTAGRAM
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#:293
EXHIBIT K.
Cadillac CTS-V with Alex Bernstein on Behance Page 1 of 6
#:294
Cadillac CTS-V with Alex Bernstein Multiple Owners

Photography, Advertising, Retouching
Follow All
@ 4086 ? 313 > 6
Q Add to Collection 0 Tools Used i About
https://www.behance.net/gallery/45327851/Cadillac-CTS-V-with-Alex-Bernstein 7/1/2018
#:295
#:296
Photographer: Alex Bernstein

Post: Federico Chiesa / Recom Farmhouse
Recom Farmhouse is on Instagram, Facebook and Twitter!

More work at recomfarmhouse.com and our blog madlove.net.
Alex is on Instagram, Facebook and Twitter as well!
Q ADD TO COLLECTION = COPY LINK
Multiple Owners
Follow All
#:297
CommentsMuseo
(6) Soumaya Range Rover Velar with Alex
Bernstein
Alex
You must sign up toBernstein
join the conversation. Multiple Owners
Architecture Photography
114 965 203 1189
Joarder . • a year ago
Very nice photography.
Alex Bernstein • a year ago
Thank you guys!

@Patrick Daly @Todd Tyler @anbu D6 @Emraan Sattar @Rich Colvill
Patrick Daly • a year ago
Nice work Alex!

Toyota Avalon with Alex 2019 Corvette ZR1 | At Speed
Bernstein
Multiple
Todd TylerOwners
• a year ago Alex Bernstein
Looks Awesome!!!
Photography Photography
296 2094 88 967
anbu D6 • a year ago
great work
Rich Colvill • 2 years ago
Great work. Soft tones are on point. ®
Basic Description
#:298
These images were shot alongside a

motion piece I directed, showing off the Tools Used
glorious 640hp Cadillac CTS-V. I was
looking for a desolate desert vibe and a
cool, (but not too cool!) driver to work well
with the car and not take away from the
scene. Coming off a great couple of
projects with Recom Farmhouse, Federico
Chisea did another outstanding job on this
Kia K900 | Reveal
set. Additionally, the Recom Film Division
is wrapping up the motion piece shortly;
we're excited to show that soon! Alex Bernstein ¢ Report
Photography
Credits 154 1576
Alex Bernstein
+ Follow
Los Angeles, CA,…
Recom Farmhouse
+ Follow
London, United Ki…
Tags
CADILLAC AUTOMOTIVE
PHOTOGRAPHY LIFESTYLE
FASHION DESERT CARS
#:299
About Behance & Careers Adobe Portfolio Blog Behance API Portfolio Reviews
Creative Career Tips Apps
English TOU Privacy Community FAQ AdChoices
Made in NYC. All member work copyright of respective owner, otherwise © 2006-2018 Adobe Systems Incorporated.
#:300
EXHIBIT L.
Alex Bernstein on Instagram: “V is for...” ID 2(07 PM
#:301
bernooo • Follow
bernooo V is for...
bc_la Hey, looks like mine... Except I got that
frosty frost frost ☃ love the car
theroadlessdriven enjoy man, hopefully
they got all the bug guys off for ya
cadillac
leftlne What an angle!
pierrewikberg STS was the best.
pierrewikberg DTS was the best.
guysmiley_69 V is for Victory V=Victory
Like Comment
437 likes
FEBRUARY 26, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BCRUp76lf1C/?taken-by=bernooo Page 1 of 1
ID 2(08 PM
Alex Bernstein on Instagram: “A day in DTLA with the new @chevrolet Camaro SS. 1/5 Retouching by @glosspostproduction”
#:302
bernooo • Follow
bernooo A day in DTLA with the new

@chevrolet Camaro SS. 1/5
Retouching by @glosspostproduction
simariphoto
scottdukes
razkrog Filthy
pdalyphoto Ooooo weee!
yaer_one Broooooo
rileysteck Oh my
t_l_s Bitchin camaro!
chevrolet Like Comment
503 likes
MARCH 28, 2016
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ID 2(08 PM
Alex Bernstein on Instagram: “Honestly, I didn't expect to like this …w @chevrolet Camaro SS is a badass and a bargain. 2/5 Retouching by…”
#:303
bernooo • Follow
bernooo Honestly, I didn't expect to like this

car so much, but the new @chevrolet
Camaro SS is a badass and a bargain. 2/5
serge_designs @chrissukraw @brentharden
iconic location
metafizics Had the same feeling when I
took one of the Camaro rentals out,
pleasantly surprised. American engineers
have come along way haha
pierrewikberg No car is a bargain.
344 likes
MARCH 29, 2016
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ID 2(08 PM
Alex Bernstein on Instagram: “The guts. @Chevrolet Camaro SS. 3/5 Retouching by @glosspostproduction”
#:304
bernooo • Follow
bernooo The guts. @Chevrolet Camaro SS.

3/5
dcchavez Incredible photo...
nerdloff Is that a manual transmission is
see?
teaguefleury Wow, shooting with a phase
one?
bernooo Thanks dude @dcchavez
bernooo Yessir @nerdloff
339 likes
MARCH 30, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BDljiOslf2Y/?taken-by=bernooo Page 1 of 1
Alex Bernstein on Instagram: “Tire disintegrator. The new @chevrolet Camaro SS, 4/5” ID 2(08 PM
#:305
bernooo • Follow
bernooo Tire disintegrator. The new

@chevrolet Camaro SS, 4/5
justincarrasquillo Rad
domquattro Epic shot sir!
psuslov Just "woooow"
instazam Burnoooooooooo
madmono Yesssss!!
crenshaw84 Damn, @instazam stole my
thunder
shootingdave bravo man, bravo
364 likes
MARCH 31, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BDoIoFxFf7I/?taken-by=bernooo Page 1 of 1
ID 2(08 PM
Alex Bernstein on Instagram: “5/5 with the @chevrolet Camaro SS. Retouching by @glosspostproduction”
#:306
bernooo • Follow
bernooo 5/5 with the @chevrolet Camaro

SS. Retouching by @glosspostproduction
roggenbuckphotodesign Flawless!
abangwu Mental photo, as usual.
dennisbollmann Love this series!!
fredericseemann Damn good! Love the
colors! @bernooo
dereklanepowell @iammikeallen
345 likes
APRIL 1, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
https://www.instagram.com/p/BDqdu39Ff7l/?taken-by=bernooo Page 1 of 1
ID
Alex Bernstein on Instagram: “Salton Sea before the storm. Drove all …shots, unfortunately. This was a few months back before I ended up…”
2(07 PM
#:307
bernooo • Follow
bernooo Salton Sea before the storm. Drove

all the way there for four iPhone shots,
unfortunately. This was a few months back
before I ended up just shooting in LA.
badfish.cv The smelly sea
ian.factory You're the best.
theroadlessdriven worth it tho
cryingshinji.gif Oh dang, how come you
ended up not going with this? The blue on
the pretty monochrome background is great
279 likes
MAY 5, 2016
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
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#:308
EXHIBIT M.
ID
Alex Bernstein on Instagram: “"Because 640hp..." Starring the 2017 … Bernstein DP: Jeffrey Vogeding (@jeffv0) Post Production & Sound…”
1(50 PM
#:309
bernooo • Follow
bernooo "Because 640hp..." Starring the

2017 @Cadillac CTS-V.
Director: Alex Bernstein
DP: Jeffrey Vogeding (@jeffv0)
Post Production & Sound Design:
@recomfarmhouse
Drone: Pavel Suslov (@psuslov)
Music by: Ian Miller (@imm_imm)
Casting: @Donna_Grossman_Casting
Model: @BrooksForester from
@WilhelminaModels
View all 28 comments
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6/28/18, 1(51 PM
#:310
bernooo • Follow

@recomfarmhouse
@WilhelminaModels
Like Comment
2,667 views
MARCH 1, 2017
HASHTAGS LANGUAGE
© 2018 INSTAGRAM
6/28/18, 1(51 PM
#:311
bernooo • Follow

@recomfarmhouse
@WilhelminaModels
Like Comment
2,667 views
MARCH 1, 2017
HASHTAGS LANGUAGE
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#:312
EXHIBIT N.
Alex Bernstein photographed the 2019 Corvette ZR1 for Chevrolet | AH NEWS 7/2/18, 10)27 AM
#:313
HOME ABOUT ANDERSONHOPKINS.COM
Alex Bernstein photographed the 2019 Search
Corvette ZR1 for Chevrolet

SUBSCRIBE AND GET
Bernstein was thrilled to be chosen to shoot the 2019 Corve!e ZR1 supercar for it’s global launch. AWESOME UPDATES
With a top speed of 212 mph, this makes the 2019 ZR1 the fastest production Corve!e ever made. FROM OUR ARTISTS!
Email Address
Photographer: Alex Bernstein
Client: Chevrolet
Agency: Commonwealth // McCann
Art Director: Bryan Durco

SUBMIT
Art Producer: Lilian Ikera
FOLLOW US:
CONTACT US:
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70 lafaye!e street
new york, ny 10013
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© 2018 AH NEWS
#:317
EXHIBIT O.
#:318
101ST CONGRESS
2d Session H
HOUSE OF REPRESENTATIVES I REPORT
101-735
COPYRIGHT AMENDMENTS ACT OF 1990
SEPTEMBER 21, 1990.-Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. BROOKS, from the Committee on the Judiciary,

submitted the following
REPORT
[To accompany H.R. 5498]
[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill
(H.R.5498) to amend title 17, United States Code, relating to com-
puter software, fair use, and architectural works, having consid-
ered the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof
the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the "Copyright Amendments Act of 1990".
TITLE I-COMPUTER SOFTWARE
SEC. 101. SHORT TITLE.
This title may be cited as the "Computer Software Rental Amendments Act of
1990".
SEC. 102. RENTAL OF COMPUTER PROGRAMS.
Section 109(b) of title 17, United States Code, is amended-
(1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respec-
tively;
(2) by striking paragraph (1) and inserting the following:
"(b1XA) Notwithstanding the provisions of subsection (a), unless authorized by
the owners of copyright in the sound recording or the owner of copyright in a com-
puter program (including any tape, disk, or other medium embodying such pro-
gram), and in the case of a sound recording in the musical works embodied therein,
neither the owner of a particular phonorecord nor any person in possession of a par-
ticular copy of a computer program (including any tape, disk, or other medium em-
bodying such program), may, for the purposes of direct or indirect commercial ad-
vantage, dispose of, or authorize the disposal of, the possession of that phonorecord
or computer program (including any tape, disk, or other medium embodying such
39-060
#:319
2
program) by rental, lease, or lending, or by any other act or practice in the nature
of rental, lease, or lending. Nothing in the preceding sentence shall apply to the
rental, lease, or lending of a phonorecord for nonprofit purposes by a nonpro& li
brary or nonprofit educational institution. The transfer of possession of a law*aljly
made copy of a computer program by a nonprofit educational institution to ancther
nonprofit educational institution or to faculty, staff, and students does not coat.
tute rental, lease, or lending for direct or indirect commercial purposes under this
subsection.
"(B) This subsection does not apply to-
"(i a computer program which is embodied in a machine or product sad
which cannot be copied during the ordinary operation or use of the machine or
product; or
"(ii) a computer program embodied in or used in conjunction with a limited
purpose computer that is designed for playing video games and may be designed
for other purposes.
"(C) Nothing in this subsection affects any provision of chapter 9 of this title.
"(2XA) Nothing in this subsection shall apply to the lending of a computer pro
gram for nonprofit purposes by a nonprofit library, if each copy of a computer pro
gram which is lent by such library has affixed to the packaging containing the pro
gram a warning of copyright in accordance with requirements that the Register of
Copyrights shall prescribe by regulation.
"(B) Not later than three years after the date of the enactment of the Computer
Software Rental Amendments Act of 1990, and at such times thereafter as the Reg.
ister of Copyright considers appropriate, the Register of Copyrights, after consults.
tion with representatives of copyright owners and librarians, shall submit to the
Congress a report stating whether this paragraph has achieved its intended purpose
of maintaining the integrity of the copyright system while providing nonprofit li-
braries the capability to fulfill their function. Such report shall advise the Congres
as to any information or recommendations that the Register of Copyrights considers
necessary to carry out the purposes of this subsection."; and
(3) by striking paragraph (4), as redesignated by paragraph (1) of this section,
and inserting the following:
"(4) Any person who distributes a phonorecord or a copy of a computer program
(including any tape, disk, or .other medium embodying such program) in violation of
paragraph (1) is an infringer of copyright under section 501 of this title and issub.
ject to the remedies set forth in sections 502, 503, 504, 505, and 509. Such violation
shall not be a criminal offense under section 506 or cause such person to be subject
to the criminal penalties set forth in section 2319 of title 18.".
SEC. 103. PUBLIC DISPLAY OF ELECTRONIC VIDEO GAMES.
Section 109 of title 17, United States Code, is amended by adding at the end the
following:
"(e) Notwithstanding the provisions of sections 106(4) and 106(5), in the case of an
electronic audiovisual game intended for use in coin-operated equipment, the owner
of a particular copy of such a game lawfully made under this title, is entitled, with-
out the authority of the copyright owner of the game, to publicly perform or display
that game in coin-operated equipment, except that this subsection shall not apply to
any work of authorship embodied in the audiovisual game if the copyright owner of
the electronic audiovisual game is not also the copyright owner of the work of au-
thorship.".
SEC. i04, EFFECTIVE DATE.
(a) IN GENERAL.-Subject to subsection (b), the amendments made by this title
shall take effect on the date of the enactment of this Act.
(b) PROSPECTIVE APPLICATION.-Section 109(b) of title 17, United States Code, as
amended by section 102 of this Act, shall not affect the right of a person in po00-
sion of a particular copy of a computer program, who acquired such copy before the
date of the enactment of this Act, to dispose of the possession of that copy on or
after such date of enactment in any manner permitted by section 109 of title 17,
United States Code, as in effect on the day before such date of enactment.
(c) TERMINATION.-The amendments made by section 102 shall not apply to rent-
als, leasings, or lendings (or acts or practices in the nature of rentals, leasing. or
lendings) occurring on or after October 1, 1997.
SEC. 105. RECORDATION OF SHAREWARE.
(a) IN GENERAL.-The Register of Copyrights is authorized, upon receipt of any
document designated as pertaining to computer shareware and the fee prescribed by
#:320
section 708 of title 17, United States Code, to record the document and return it
with a certificate of recordation.
(b) MAINTENANCE OF RECORDS; PUBLICATION OF INFORMATION.-The Register of
Copyrights is authorized to maintain current, separate records relating to the recor-
dation of documents under subsection (a), and to compile and publish at periodic in-
tervals information relating to such recordations. Such publications shall be offered
for sale to the public at prices based on the cost of reproduction and distribution.
(c) DEPOSIT OF COPIES IN LIBRARY OF CONGRESS.-In the case of public domain com-
puter shareware, at the election of the person recording a document under subsec-
tion (a), 2 complete copies of the best edition (as defined in section 101 of title 17,
United States Code) of the computer shareware as embodied in machine-readable
form may be deposited for the benefit of the Machine-readable Collections Reading
Room of the Library of Congress.
(d) REGuLATiONS.-The Register of Copyrights is authorized to establish regula-
tions not inconsistent with law for the administration of the functions of the Regis-
ter under this section. All regulations established by the Register are subject to the
approval of the Librarian of Congress.
TITLE I1-ARCHITECTURAL WORKS
SEC. 201. SHORT TITLE.
This title may be cited as the "Architectural Works Copyright Protection Act".
SEC. 202. DEFINITIONS.
(a) ARCHITECTURAL WoRK.-Section 101 of title 17, United States Code, is amend-
ed by inserting after the definition of "anonymous work" the following:
"An 'architectural work' is the design of a building as embodied in any tangi-
ble medium of expression, including a building, architectural plans, or draw-
ings. The work includes the overall form as well as the arrangement and com-
position of spaces and elements in the design, but does not include individual
standard features.".
(b) BERNE CONVENTION WoRK.-Section 101 of title 17, United States Code, is
amended in the definition of "Berne Convention work"-
(1) in paragraph (3)(B) by striking "or" after the semicolon;
(2) in paragraph (4) by striking the period and inserting "; or"; and
(3) by inserting after paragraph (4) the following:
"(5) in the case of an architectural work embodied in a building, such building
is erected in a country adhering to the Berne Convention.".
SEC. 203. SUBJECT MATTER OF COPYRIGHT.
Section 102(a) of title 17, United States Code, is amended-
(1) in paragraph (6) by striking "and" after the semicolon;
(2) in paragraph (7) by striking the period and inserting "; and"; and
(3) by adding after paragraph (7) the following: "(8) architectural works.".
SEC. 204. SCOPE OF EXCLUSIVE RIGHTS IN ARCHITECTURAL WORKS.
(a) IN GzNERAL.-Chapter 1 of title 17, United States Code, is amended by adding
at the end the following:
"9120. Scope of exclusive rights in architectural works
"(a) PICTORIAL REPRESENTATIONS PERMIT'ED.-The copyright in an architectural
work that has been constructed does not include the right to prevent the making,
distributing, or public display of pictures, paintings, photographs, or other pictorial
representations of the work, if the building in which the work is embodied is located
in or ordinarily visible from a public place.
"(b) ALTERATIONS TO AND DESTRUCTION OF BuILDINGS.-Notwithstanding the provi-
sions of section 106(2), the owners of a building embodying an architectural work
may, without the consent of the author or copyright owner of the architectural
work, make or authorize the making of alterations to such building, and destroy or
authorize the destruction of such building.".
(b) CONFORMING AMENDMENTS.-(1) The table of sections at the beginning of chap-
ter 1 of title 17, United States Code, is amended by adding at the end of the follow-
ing:
"120. Scope of exclusive rights in architectural works.".
(2) Section 106 of title 17, United States Code, is amended by striking "119" and
inserting "120".
#:321
SEC. 205. PREEMPTION.

Section 301(b) of title 17, United States Code, is amended-
(1) in paragraph (2) by striking "or" after the semicolon;
(2) in paragraph (3) by striking the period and inserting "; or"; and
(3) by adding after paragraph (3) the following:
"(4) State and local landmarks, historic preservation, zoning, or building
codes, relating to architectural works protected under section 102(aX8).".
SEC. 206. EFFECTIVE DATE.
the amendments made by this title apply to-
(1) any architectural work created on or after the date of the enactment of
this Act; and
(2) any architectural work that, on the date of the enactment of this Act is
unconstructed and embodied in unpublished plans or drawings, except that pr
tection for such architectural work under title 17, United States Code, by virtue
of the amendments made by this title, shall terminate on December 81, 2002,
unless the work is constructed by that date.
EXPLANATION OF AMENDMENT
Inasmuch as H.R. 5498 was ordred reported with a single amend.
ment in the nature of a substitute, the contents of this report con-
stitute an explanation of that amendment.
SUMMARY AND PURPOSE
H.R. 5498 manifests two distinct purposes in its amendments to
the Copyright Act.
First, Title I represents a narrowly drafted exception to the first
sale doctrine of copyright law by prohibiting direct or indirect com-
mercial rental of computer software. Provisions have been included
to permit lending by nonprofit libraries and education institutions,
rental of machines or products embodying computer programs, and
rental of electronic audiovisual games used in connection with lim-
ited purpose computers. Title I expires on October 1, 1997.
Second, Title II places the United States in full compliance with
its multilateral treaty obligations as specified in the Berne Conven-
tion for the Protection of Literary and Artistic Works with respect
to works of architecture, by creating a new category of copyright
subject matter for the constructed design of buildings.
STATEMENT OF LEGISLATIVE HISTORY
TITLE I.-COMPUTER SOFTWARE RENTAL
Computers have become commonplace in government, our homes

and offices, and business enterprises. Software-the technology
that makes computers work-is of pivotal importance to the
United States, which is the world's leader in this unique form of
creativity.
Title I of H.R. 5498 relates principally to the rental of computer
software and owes its genesis to a bill (H.R. 2740) orginally intro-
duced by Mr. Synar, Mr. Moorhead and several other Members of
the Committee (Mr. Fish, Mr. Hughes, Mr. Glickman, Mr. Frank,
Mr. Berman, Mr. Bryant, Mr. Sangmeister, and Mr. Levine of Cali-
fornia).
The bill was not drafted on a clean legal slate. In 1980 Congress
amended the Copyright Act to provide a definition of computer pro-
gram, and at the same time adding certain limitations on computer
#:322
copyright owners' rights to protect the public interest. In 1984 Con-

gress passed legislation drafted by this subcommittee that created a
freestanding-or sui generis-protection of ten-years duration for
mask works. In that same year, Congress prohibited direct or indi-
rect rental of phonorecords.
Earlier in the 101st Congress, the Committee-acting through
the Subcommittee-held two days of oversight hearings on comput-
ers and intellectual property.' Testimony was received from a di-
verse group of witnesses with expertise on the subject. Several of
the witnesses were questioned about computer software rental.
On May 1, 1990, companion legislation passed the United States
Senate in the form of S. 198.2
On July 30, 1990, the Subcommittee held a legislative hearing on
computer software and first sale reform. 3 Testimony was presented
by the Register of Copyrights (Ralph Oman), the Software Rental
Coalition (R. Duff Thompson), UNISYS Corporation (Robert S.
Bramson), EDUCOM (Professor Frank Connolly), Mediagenic, Inc.,
a video game manufacturer (Bruce L. Davis), the Video Software
Dealers Association (Thomas W. Carton), and the American Opera-
tors for Equal Treatment (William A. Beckham). Written state-
ments were submitted by the Administration, the American
Amusement Machine Association (AAMA), the Amusement and
Music Operators Association (AMOA), the American Council on
Education, and Hertz Corporation, among others.
On August 3, 1990, the Chairman of the Subcommitte (Mr. Kas-
tenmeier), joined by two cosponsors (Mr. Synar and Mr. Moorhead),
introduced an omnibus copyright reform measure (H.R. 5498)
which included three Titles: (I) computer software rental reform;
(II) "fair use" reform; and (III) architectural works copyright pro-
tection.
On September 14, 1990, the Subcommittee marked up H.R. 5498
and, a quorum of Members being present, ordered the bill favor-
ably reported to the full Committee by voice vote with no objec-
tions being heard. Two amendments were adopted, the first being a
substitute amendment relating to computer software rental offered
by Mr. Synar (on behalf of himself and Chairman Kastenmeier).
The second, offered by Mr. Kastenmeier, deleted Title II ("fair
use") from the bill. Pursuant to motion, the two amendments were
incorporated in an amendment in the nature of a substitute.
TITLE II.-ARCHITECTURAL WORKS
Architecture is a form of artistic expression that performs a sig-
nificant societal purpose, domestically and internationally.
The 100th Congress passed legislation (Public Law 100-568), ena-
bling the U.S. to meet the requirements of the Berne Convention
for the Protection of Literary and Artistic Works. As a result of
'See Computers and Intellectual Property-Oversight: Hearings Before the Subcomm. On

Courts, Intellectual Property, and the Administration of Justice of the House Comm. on the Ju-
diciry, 101st Cong., 1st & 2d Sess. (1989-90) [hereinafter "Oversight Hearings"].
ee S. Rep. No. 101-265, 101st Cong., 2d Sees. (1990). See also, 136 Cong. Rec. 65583 (daily ed.,
1, 1990) (remarks of Senator Orrin Hatch, explaining Senate floor amendments).
'fSee Computer Software Rental Amendments Act (H.R. 2740, H.R. 5297, and S. 198): Hearing
.ore the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the
House Comm. on the Judiciary, 101st Cong, 2d Ses. (1989) [hereinafter Software Rental Hear-
#:323
this legislation and Senate ratification of the Berne Treaty, on

March 1, 1989, the U.S. became a signatory to the world's most imj.
portant copyright convention. As part of the effort to make U.S.
law compatible with Berne standards, Congress noted that the pr.
tectible subject matter enumerated in Article 2(1) of the treaty in.
eludes "works of architecture."
In the wake of Berne adherence, Chairman Robert W. Kasten.
meier (Chairman of the Subcommittee on Courts, Intellectual Prop-
erty, and the Administration of Justice) asked the Copyright Office
to conduct a study of the architectural works protection issue. In
response, Register of Copyrights, Ralph Oman, presented a report
of the Copyright Office study to Chairman Kastenmeier at a June
19, 1989, press conference in the Madison Building of the Library
of Congress. The report concluded that while architectural blue-
prints, plans, drawings, and models relating to works of architec-
ture are adequately protected by U.S. copyright law, the adequacy
of protection under Berne Convention standards for the construct-
ed design of architectural structures remains in doubt.
During the 101st Congress, two bills were introduced by Chair-
man Kastenmeier to address the Register's concerns: H.R. 3990 (the
"Architectural Works Copyright Protection Act of 1990"); and H.R.
3991 (the "Unique Architectural Structures Copyright Act of
1990").
On March 14, 1990, the Subcommittee held a legislative hearing
during which testimony was received from the following witnesses:
a well-known American architect (Michael Graves, FAIA); the Reg-
ister of Copyrights (Ralph Oman); an Administration witness (Hon-
orable Jeffrey M. Samuels); the American Institute of Architects
(David A. Daileda, AIA); and The Frank Lloyd Wright Foundation
(Richard Carney, Managing Trustee, Chief Executive Officer). Writ-
ten statements were received from the American Consulting Engi-
neers Council and the American Society of Magazine Photogra-
phers. 4
Following this hearing, on August 3, 1990, Mr. Kastenmeier,
joined by Mr. Synar and Mr. Moorhead, introduced revised provi-
sions protecting architectural works as Title III of H.R. 5498, the
omnibus copyright reform measure referred to above. In this form,
the proposal was marked up by the Subcommittee on September
14, 1990, and a quorum of Members being present, ordered the bill
favorably reported to the full Committee by voice with no objec-
tions being heard.5
COMMIEE ACTION AND VOTE
On September 18, 1990, the full Committee considered H.R. 5498.
An amendment was offered (by Mr. Hyde) to delete section 103 re-
lating to the public display of electronic video games. After debate,
the amendment was defeated by voice vote. After adoption of the
'See Hearing on Architectural Design Protection Before the Subcomm. on Courts, Intellctll
Property, and the Administration of Justice of the House Comm. on the Judiciary, 101st CoMg.
2d0=se (1990) [hereinafter referred to as "Architectural Design Hearings"].
, With the deletion of fair use reform from H.R. 5498, architectural works protection, formei
ly Title III, became Title IL
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Subcommittee substitute amendment, the Committee ordered the

bill favorably reported by voice vote with a quorum present.
DISCUSSION
TITLE I.-COMPUTER SOFTWARE RENTAL

One of the most important limitations on copyright owners' ex-
clusive rights is embodied in section 109 of title 17, United States
Code. This section incorporates the so-called "first sale" doctine.
Under this doctrine, the owner of a lawfully made copy of a work
is entitled to sell or otherwise dispose of that copy and to display
the copy publicly without obtaining the copyright owner's permis-
sion. For example, a student who purchases anthology of poetry for
literature class may sell that copy to a secondhand book store,
which may in turn sell the copy to the public. A grocery store may
purchase copies of video cassettes and rent those copies to its cus-
tomers. A museum may display a painting it purchases from an art
dealer.
Section 109(a) of title 17, United States Code, is structured as an
exception to the copyright owner's section 106(3) right of distribu-
tion. Section 109(b) of title 17, United States Code, is structured as
an exception to the copyright owner's section 106(5) public display
right. These sections do not act as a limitation on the other exclu-
sive rights granted copyright owners in section 106, title 17, United
States Code. For example, an owner of a lawfully made copy may
not, without the permission of the copyright owner (or availability
of a statutory defense) 6 reproduce copies of the work, prepare de-
rivative works, or publicly perform the work.
The first sale doctrine represents an important balancing of in-
terests. The doctrine prohibits copyright owners from controlling
the terms and conditions of further distribution of lawfully made
copies of a work once the initial authorized distribution of those
copies has taken place. At the same time, the limitations on the
doctrine preserve other, essential rights of copyright owners, in-
cluding the right to authorize public performances. Congress has,
in the past, resisted proposals to alter the balance achieved in sec-
tion 109, requiring those seeking amendments to make a compel-
ling case for change. Proposals to reform the first sale doctrine are
neither easy nor without controversy. They occur in a shifting
legal, technological and economic landscape.
Frequently, calls to amend the first sale doctrine are made in re-
sponse to a new technology developed for reproduction of copyright-
ed works. Even though the 1976 Copyright Act was carefully draft-
ed to be flexible enough to be applied to future innovations, tech-
nology has a habit of outstripping even the most flexible statutes.
Copyright is, in large part, a response to new technology. Yet, tech-
nology has been both a boon and a bane to authors: a boon because
it has fostered new methods of creation and distribution; a bane be-
cause it has also resulted in inexpensive, easy, and quick ways to
reproduce copyrighted works, in many cases in private or semi-pri-
vate environments that render detection all but impossible.
6In the case of computer programs, a special exemption is provided in section 117, title 17,
United States Code, for the making of back-up and archival copies.
#:325
In 1984, Congress was presented with evidence demonstrating

that the nascent record rental business posed a genuine threat to
the record industry. Copies of phonorecords were being rented at a
fraction of their cost, in conjunction with advertisements exhorting
customers to "never buy another record." Congress responded by
prohibiting the rental of phonorecords
7
for purposes of direct or in.
direct commercial advantage.
Congress has now been presented with similar evidence by the
computer software industry. Indeed, in some respects, the evidence
is even more compelling in the case of software .8 The price dispari.
ty between the sale and rental prices is greater than the case with
phonorecords: software selling for $495 has been rented for $35.
And, unlike phonorecords, which are an entertainment product,
software is typically a utilitarian product. Short term rental of soft
ware is, under most circumstances, inconsistent with the purposes
for which software is intended. Rental of software will, most likely,
encourage unauthorized copying, deprive copyright owners of a
return on investment, and thereby discourage creation of new prod.
ucts. 9
At this point in time, the number of businesses renting only soft-
ware is small. Legislation barring rental for purposes of direct or
indirect commercial advantage will not, therefore, harm en-
trenched interests. The Committee does not wish, however, to pro-
hibit nonprofit lending by nonprofit libraries and nonprofit educa-
tional institutions. Such institutions serve a valuable public pur-
pose by making computer software available to students who would
not otherwise have access to it. 10 At the same time, the Committee
is aware that the same economic factors that lead to unauthorized
copying in a commercial context may lead library patrons also to
engage in such conduct. Therefore, the bill requires that all copies
of software lent by nonprofit libraries bear a notice warning bor-
rowers that unauthorized copying may violate the copyright laws.
The text of the notice is to be prescribed by the Register of Copy-
rights.
Title I, which is drafted narrowly, does not bar the rental (after
first sale) of two important categories of software. First, it does not
prohibit the rental, lease, or lending of consumer and other prod-
ucts containing computer programs. Automobilies, calculators, and
other electronic consumer products contain computer programs,
buy these computer programs cannot now be copied by consumers
during the ordinary operation of these products. The touchstone of
the exemption is rental for the purpose of using the machine or
products, and not rental in order to copy the computer program
embodied in the machine or product.
Second, although there is a substantial rental market for elec-
tronic audiovisual games played on limited purpose computers,
such computer are generally used solely for the playing of thee
' This legislation was sunsetted after five years. PUB. L. NO. 98-450, 98 Stat. 1727 (1984). In
1988, the legislation was renewed, with expiration set for October 1, 1997. PUB. L. NO. 100411,
102 Stat. 3194 (1988). The rights granted under Title I of H.R. 5498 are set to expire on that
same date,
' See Software Rental Hearing, supra note 3 (statement of Ralph Oman).
0 Id. (statement of R. Duff Thompson).
10 Id. (statement of Frank W. Connolly).
#:326
games and not used to copy the computer programs that generate
the game. 11 The Committee is also aware that some of those com-
puters may be designed for other purposes 1 2 not involving the
playing of electronic audiovisual games. So long as these other pur-
poses do not involve the copying of computer programs, these com-
puters are exempt under new clause (ii) of section 109(b)(1)(B) estab-
lished by the bill.
The Committee has also been made aware of an anomaly in ex-
isting copyright law that prevents certain coin-operated equipment
from being used for their intended purpose. In Red-Baron Franklin
Park, Inc. v. Taito Corp.,' 3 a Japanese manufacturer of electronic
audiovisual games conceded that the first sale provisions of section
109(a) of the Copyright Act permitted a U.S. arcade game operator
to purchase, in Japan, a circuit board containing the game and to
then import the circuit board for insertion into a coin-operated
arcade game in the United States. The manufacturer, though,
argued-and the court of appeals agreed-that the first sale doc-
trine does not act as a limitation on the public performance right.
The court acknowledged that the circuit boards "have utility only
in the hands of someone who plans to exploit them
commercially." 14 Nevertheless, the court held that the plain words
of the statute dictated a finding of infringement.
The Committee received testimony domonstrating that some of
the most popular electronic audiovisual games are marketed only
as so-called "dedicated games": units consisting of a printed circuit
board -containing the game, plus a wooden cabinet containing a tv
monitor, power supply, coin-acceptor mechanism, and many other
parts. Dedicated games sell for approximately $2,500 compared
with a cost of less than $1,000 for the printed circuit board alone. ' 5
In order to rectify the anomaly in the Copyright Act that permits
copyright owners of electronic audiovisual games designed for use
in coin-operated equipment to sell printed circuit boards containing
the games and then turn around and successfully sue to prevent
use of the circuit boards for their intended purpose, the bill pro-
vides that the public performance right will not apply in the fol-
lowing very limited circumstances: where, in the case of electronic
audiovisual games intended for use in coin-operated equipment, a
lawfully made copy of such game has been purchased and is used
n such equipment. This provision does not apply to any work of
authorship embodied in an electronic audiovisual game if the copy-
right owner of the electronic audiovisual game is not also the copy-
right owner of that other work of authorship. For example, before
including a popular copyrighted song in an electronic audiovisual
game, permission of the copyright owner (or his or her licensee)
would be required to reproduce the song in the game and to public-
ly perform the song through operation of the game.
"Id. (statement of Thomas W. Carton, Jr.).
'The phrase "may be designed for other purposes," as contained in new clause (ii) of section
109(bX1XB) is intended to refer to other limited uses and would not apply to a computer program
embodied or used in conjunction with a general purpose computer that is also capable of being
used to play video games.
18888 F.2d 275 (4th Cir. 1989), cert. denied, 110 S.Ct. 869 (1990).
14888 F.2d at 279.
"See Computer Rental Hearings, supra note 3 (statement of William Beckham).
#:327
The Committee approaches proposed exceptions to the public per.

formance right with great concern, since the right forms the back.
bone of the motion picture, musical, and theatrical industries. Any
proposal adversely affecting these industries would be met with
strong opposition and disfavor, and would call into question a host
of international issues, including possible conflict with our coun.
try's obligations under the Berne Convention. The Committee is con.
minced, however, that this amendment is drafted in a way that
carefully addresses the narrow issue presented in the Red-Baron
decision. Protective language has been included to ensure that the
right of public performance is left otherwise unaffected by the
amendment.
Another issue carefully considered by the Committee-again
through the Subcommittee-was the effective date provisions found
in section 104 of Title I of H.R. 5498. Section 104 specifies the pro-
spective application of the bill by stating that persons who acquire
lawfully made copies of computer programs before the date of en-
actment of this bill may dispose of the possession of those copies on
or after the date of enactment in any manner permitted by section
109, title 17, United States Code, as in effect on the day before the
date of enactment.
Previous versions of the proposed legislation applied to rentals of
all existing programs and raised serious constitutional questions.
As aptly observed by a representative of the Administration, retro-
activity "could raise a serious question under the "Just Compensa-
tion Clause" of the 5th Amendment to the Constitution by depriv-
ing prior purchasers of a right vested under existing law without
compensating them for the loss." 16 The Committee agreed and made
the proposed legislative prospective in scope only.
Another "effective date" provision contains a legislative sunset
providing that the amendments made by section 102 of the bill
expire on October 1, 1997, the same date that the record rental
provisons of section 109, title 17, United States Code, are scheduled
to expire.
TITLE II.-ARCHITECTURAL WORKS
The Architectural Works Protection Act of 1990 is result of
United States adherence to the Berne Convention for the Protec-
tion of Literary and Artistic Works. t The Convention is the
world's most important copyright treaty. Adherence of the United
States to the Berne Union was a two-step process. First, imple-
menting legislation had to be drafted refined, and enacted. The im-
plementing legislation had one simple, but important objective: to
make only those changes in domestic U.S. law required to place the
United States in compliance with our treaty obligations. The
second step, reached only after the first was completed, required
the Senate to give its advice and consent to the treaty. Both steps
reached fruition on October 31, 1988, when President, Reagan
signed into law H.R. 4262 18 (the Berne Implementation Act of
16 id. (written statement of Harry F. Manbeck, Jr.).
11 For further background about the Proposed legislation, see 136 Cong. Rec. E259 (daily Sd.
Feb. 7, 1990) (introductory remarks of Robert W. Kastenmeier); Architectural Design HeariiU
supra note 4.
18 Public Law 100-568, 102 Stat. 2853.
#:328
1988) and the treaty. Both were effective on March 1, 1989, when
the United States became a full-fledged member of the Berne
Union.
Article 2(1) of the Berne Convention requires member countries
to provide copyright for "works of architecture"-the constructed
design of buildings. This category of subject matter is distinct from
"illustrations, plans, sketches and three-dimensional works relative
to architecture," which are also required to be protected under Ar-
ticle 2(1). The current U.S. Copyright Act expressly includes "dia-
grams, models, and technical drawings, including architectural
plans" as a species of protected "pictorial, graphic, and sculptural
work." 19 It does not, however, expressly protect "works of archi-
tecture," although this Committee's Report accompanying the 1976
Copyright Act contemplated that at least selected works of archi-
tecture-those containing elements physically or conceptually sepa-
rable from their utilitarian20 function-would be protected to the
extent of their separability.
Due to the lack of express statutory protection for works of ar-
chitecture in the 1976 Copyright Act, the original Berne imple-
menting bills included provisions according such protection, limited
by exemptions and restrictions on remedies necessary to protect 2
the public as well as the interests of the real estate industry. 1
During the initial deliberations on Berne adherence in 1986 and
1987, the issue of protection for works of architecture failed to
draw much response. Then, in 1988, near the end of the hearing
process, two respected copyright scholars testified that creation of a
separate statutory provision for works of architecture might not be
required for compliance with our obligations under the Berne Con-
vention. This testimony was based on language in this Committee's
Report accompanying the 1976 Copyright Act. 2 2 These experts sug-
gested that the issue be studied further before undertaking legisla-
tive action.
Relying on this testimony, the provisions on works of architec-
ture were dropped from the Berne implementing legislation. Agree-
ing with the experts' suggestions for further study, Chairman
Robert W. Kastenmeier of the Subcommittee on Courts, Intellectu-
al Property, and the Administration of Justice, by letter of April
27, 1988, to Register of Copyrights Ralph Oman, requested that the
Copyright Office undertake a full review of the subject and report
" The reference to "architectural plans" was added by the Berne Convention Implementation
Act of 1988. Id. Committee reports accompanying the 1976 Copyright Act indicated that such
works were protected under that Act. Indeed, the Copyright Office registered architectural plans
and drawings under the 1909 Copyright Act. See generally, "Copyright in Works of Architec-
ture: A Report of the Register of Copyrights" (June 1989), Chapter 4.
:0 H. Rept. No. 94-1476, 94th Cong., 2d ses. 55 (1976).
1 H.R. 1623, 100th Cong., 1st Sess. (1987) (Kastenmeier); H.R. 2962, 100th Cong., 1st Sess.
(1987) (Moorhead, on behalf of the Administration). See also S.2904, 99th Cong., 2d Seas. (1986)
(Mathias); S.1301, 100th Cong., 1st Sess. (1987) (Leahy); S. 1971, 100th Cong., 1st Ses. (1987)
(Hatch, on behalf of the Administration). H.R. 1623 and S.1301 would have limited protection to
architectural works having "an original artistic character." The other bills did not contain this
limitation.
2
Berne Convention Implementation Act of 1987: Hearings on H.R. 1623 Before the Sub-
Comm. on Courts, Civil Liberties and the Administration of Justice of the House Comm. on the
Judiciary, 100th Cong., 1st & 2d Sess. 679-680 (statement of Prof. Paul Goldstein); 689 (state-
ment of former Register of Copyrights Barbara Ringer) (1987 & 1988) (citing H. Rept. No. 94-
1476, 94th Cong., 2d seas. 55 (1976)).
#:329
to him the results of the study, including any recommendations for

amending the Copyright Act.
On June 19, 1989, Mr. Oman delivered his report to Chairman
Kastenmeier. 23 While the Register noted the strong professiora
disagreement within the Copyright Office over the existence of
copyright for the design of works of architecture under the 1976
Act, he concluded, and the entire staff concurred, that the Berne
Convention required such protection. Accordingly, on February 7,
1990, Chairman Kastenmeier introduced H.R. 3990, to place the
United States unequivocally in compliance with its Berne obliga.
tions. For purposes of discussion, Chairman Kastenmeier also intro.
duced H.R. 3991, the "Unique Architectural Structures Copyright
Act of 1990." H.R. 3991 sought to protect only works possessing a
"unique artistic character." Following a legislative hearing before
the Subcommittee on March 14, 1990, revised provisions protecting
architectural works, based on H.R. 3990, were introduced as part of
H.R. 5498. These provisions now form Title II of H.R. 5498.
The importance of H.R. 3990 (and Title II of H.R. 5498) should
not be measured solely by the purpose of placing the United States
unequivocally in compliance with its Berne Convention obligations.
All copyright legislation is premised on Article I, section 8, clause 8
of the Constitution, which grants Congress the power to protect the
"writings" of authors in order to "promote the progress of science."
The proposed legislation must (and the Committee believes does)
further this constitutional goal. Architecture plays a central role in
our daily lives, not only as a form of shelter or as an investment,
but also as a work of art. It is an art form that performs a very
public, social purpose. As Winston Churchill is reputed to have
once remarked: "We shape our buildings and our buildings shape
us." We rarely appreciate works of architecture alone, but instead
typically view them in conjunction with other structures and the
environment at large, where, at their best, they serve to express
the goals and aspirations of the entire community. Frank Lloyd
Wright aptly observed: "Buildings will always remain the most val-
uable aspect in a people's environment, the one most capable of
cultural reaction." 24
The truth of this observation is borne out every day in the Cap-
itol, which serves as a strong symbol of our country's dedication to
democracy. The sheer number of visitors to the Capitol speaks elo-
quently to the success of that symbol. Indeed, the important rela-
tionship between democracy and architecture was well understood
by our Founding Fathers. The design of the Capitol was strongly
influenced by Thomas Jefferson, whose love of architecture is well
known and visible today in his own works of architecture at Monti-
cello and the University of Virginia.
Architecture is not unlike poetry, a point made by renowned
critic Ada Louise Huxtable, who wrote that architects can make
".poetry out of visual devices, as a writer uses literary or aural de-
vices. As words become symbols, so do objects; the architectural
23 "Copyright in Works of Architecture: A Report of the Register of Copyrights" (June 1989).

24 "F.W. Wright, on Architecture" (1941).
#:330
world is an endless source of symbols with unique ramifications in

time and space." 25
In short, the Committee concluded that the design of a work of
architecture is a "writing" under the Constitution and fully de-
serves protection under the Copyright Act. Protection for works of
architecture should stimulate excellence in design, thereby enrich-
ing our public environment in keeping with the constitutional goal.
The Committee has carefully considered whether injunctive
relief should be available for infringement of architectural works,
and if so, under what conditions. Section 4 of H.R. 3990 contained a
provision limiting injunctive relief against allegedly infringing
buildings to circumstances where construction has not "substan-
tially begun." Michael Graves, in his written statement to the Sub-
committee argued:
Categorically denying the copyright holder an injunction
after construction has substantially begun does not lessen
the resulting loss to the owner [of the building]. For exam-
ple, approximately eighty percent of the architect's fees
has normally been earned before construction begins. In
addition, before the commencement of construction, an
owner typically spends large sums of money for land, sur-
veys, engineering fees, carrying costs, fees in connection
with zoning approvals, and legal fees. 26
The American Institute of Architects similarly argued:
Generally, we are not in favor of the destruction of
useful buildings, and we fully expect a court would require
a strong showing from a copyright owner before ordering
such drastic action. On the other hand, it is not at all in-
conceivable that a situation could arise where the very ex-
istence of an infringing structure is an irreparable injury
to the copyright owner. In that case, the courts should not
be precluded from ordering a halt to construction, [or] a
substantial alteration so as to make the building not in-
fringing, or even to tear the building down if the evidence
properly supports that conclusion. We are confident that
the courts will appropriately weigh the public policy con-
cerns about economic waste against the interests of the
copyright owner. 2 7
H.R. 3990 proceeded on the assumption that injunctions against
allegedly infringing buildings embodying protected architectural
works may present issues different than other forms of authorship.
Architectural works are the only form of copyrightable subject
matter that is habitable. Large scale architectural projects involve
an almost bewildering number of state and local permit processes
that must be navigated, and typically involve a considerable
number of interests in addition to the architect and client, includ-
"1A.Rossi, "Memory and Metaphor in Architecture Anyone?" at 45-46 (1986). See also Archi-
tectural Design Hearings, supra note 4, at 136 (statement of Frank Lloyd Wright Foundation):
"Architectural art is no less art than its counterparts in the world of sculpture and painting
* * *11; id. at 49 (statement of Register of Copyrights Ralph Oman): "[Architecture is] one of
the
oldest and most revered forms of Art."
"Architectural Design Hearings, supra note 4, at 18-19.
"Id. at 117.
#:331
ing lending institutions, contractors, subcontractors, unions, and

suppliers.
Nevertheless, it ultimately was concluded that these differences
were not substantial enough to justify the limitations found in H.R.
3990 as introduced. 28 As a practical matter, buildings embodying
protected architectural works must be expressed in plans deposited
with and approved by local planning commissions before construc.
tion can begin. A copyright owner who is unsure whether a corn-
pleted structure will infringe his or her protected architectural
work can review these plans and gain valuable information in
making such a judgment. Thus, in many cases costly delays neces-
sitated by uncertainties over the ultimate design may be avoided.
Title II therefore does not contain the limitation on injunctive
relief contained in H.R. 3990, as introduced. Injunctive relief for al-
leged infringement of architectural works will be governed by the 29
general principles applicable to all categories of subject matter,
taking into account the complexities and different affected inter-
ests described above.
Those general principles are expressed first in Rule 65, Federal
Rules of Civil Procedure (the provisions of which are applicable to
copyright infringement actions), and second in the standards for in-
junctive relief developed by the Federal judiciary. The Committee
is aware that various courts have developed different standards for
injunctive relief, or at least enunciated the general principles for
injunctive relief in different ways. Nevertheless, all would agree,
and the Committee believes, that "equitable considerations, in this
as in all fields of law, are pertinent to the appropriateness of in-
junctive relief. The public interest is always a relevant consider-
ation for a court in deciding whether to issue an injunction."3 0
One equitable doctrine that may have particular relevance in
suits to enjoin allegedly infringing architectural works is laches.
The AIA noted in its statement that copyright owners may have to
make a strong showing of entitlement to remedial relief in cases
where an allegedly infringing structure has been substantially
begun or completed. 3 ' The Committee agrees and therefore expects
that injunctions will be sparingly used in such cases, but does not
with to preclude such relief in appropriate circumstances.
As a counterbalance to the injunctive relief authority of copy-
right holders, the owners of buildings are granted the flexibility to
alter or modify the structures they own, or even to demolish
them. 3 2 H.R. 3990, as introduced, contained a limitation on the
right to alter a building containing a protected architectural work.
28 For example, the production of motion pictures also involves many of the complications di
cussed above with respect to architectural works. The Committee is unaware of any complaints
from the motion picture industry over injunctions.
29 See 17 U.S.C. section 502.
30 New Era Pubs. Aps. Int'l v. Henry Holt & Co., 884 F.2d 659, 663 (2d Cir. 1989) (denying pet.
for reh'g en banc), cert. denied, 58 U.S.L.W. 3528 (U.S. Feb. 20, 1990) (Newman, J., dessenting).
See also id. at 661: "All now agree that injunction is not the automatic consequence of infringp
ment and that equitable considerations always are germane to the determination of whether an
injunction is appropriate." (Miner, J., concurring.)
31 Id.
32 Id. (statement of Jeffrey M. Samuels).
#:332
SECTION-BY-SECTION ANALYSIS
Section 1.-Short Title

Section 1 provides that the bill may be referred to as the "Copy-
right Amendments Act of 1990."
TITLE I.-COMPUTER SOFWARE

This section provides that this may be cited as the "Computer
Software Rental Amendment Act 1990."
Section 102.-Rental of Computer Programs
Section 102 amends section 109(b) of title 17, United States Code,
by redesignating paragraphs (2) and (3) as paragraphs (3) and (4),
by replacing existing paragraph (b)(1) with a new paragraph, and
by replacing redesignated paragraph (4) with a new paragraph.
New subparagraph (b)(1)(A) expands the limited exception to the
first sale doctrine Congress made with respect to phonorecords in
1984 (renewed in 1988) to include, as specified, computer programs.
As with phonorecords, on or after the date of enactment of this bill,
computer programs may not, for purposes of direct or indirect com-
mercial advantage, be rented leased, or lent. An exemption for the
rental, lease, or lending for nonprofit purposes by nonprofit librar-
ies and nonprofit educational institutions is provided. Additionally,
the bill states that the transfer of possession of a lawfully made
copy of a computer program by one nonprofit educational inistitu-
tion to another or to faculty, staff, or students is also exempt.
Nonprofit libraries are required to affix on the packaging con-
taining the computer program a warning of copyright, in accord-
ance with requirements the Register of Copyrights shall prescribe
by regulation.3" New subparagraph 109(b)(2)(B) of title 17, United
States Code, established under the bill, requires the Register of
Copyrights, not later than three years from the date of enactment,
and such times thereafter as the Register considers appropriate, to
submit to Congress a report stating whether the provisions of the
bill have served their intended purpose of maintaining the integri-
ty of the copyright system, while still providing nonprofit libraries
the capacity to fulfil their function.
New clause 109(b)(1)(B)(i) of title 17, United States Code, estab-
lished under the bill, broadly states that the rights granted in new
subparagraph 109(b)(1)(A) do not apply to a computer program that
is embodied in a machine or product and that cannot be copied
during the ordinary operation or use of the machine or product.
This provision recognizes that many consumer products contain
computer programs, including automobiles, calculators, and micro-
wave ovens. Computer programs are typically embodied in elec-
tronic circuitry embedded in these products, and cannot be copied
by consumers during the ordinary operation or use of the product.
New clause 109(b)(1)(B)(ii) of title 17, United States Code, estab-
lished under the bill, addresses the special case of limited purpose
computers designed for playing electronic audiovisual games. Coin-
See new subparagraph | 109(bX2XA).

#:333
puter programs embodied in these games presently cannot be

copied while playing the game. The Committee is aware that some
limited purpose computers used for playing electronic audiovisual
games may be used for additional purposes that also do not involve
the copying of computer programs. These computers are also en-
compassed within clause 109(b)(1)(B)(ii) as well.
The final paragraph of section 102 of H.R. 5498 provides that, as
with phonorecord rental, an infringer of the rights granted under
the bill is liable for injunctive relief and monetary damages, but is
not subject to the criminal penalties set forth in section 506 of title
17, United States Code, or section 2319 of title 18, United States
Code.
Section 10f.-Public Display of Electronic Video Games
Section 103 of the bill addresses the anomaly created by the Red.
Baron Franklin Park, Inc. v. Taito Corp. decision.3 4 Under the bill,
the owner of a particularly lawfully made copy of an electronic
audiovisual game intended for use in coin-operated equipment, is
entitled, without the permission of the copyright owner of the elec-
tronic audiovisual game, to publicly perform or publicly display
that electronic audiovisual game in coin-operated equipment. The
exception does not apply, however, in cases where the electronic
audiovisual game also contains other works of authorship, such as
a musical composition or motion picture, unless the copyright
owner of the electronic audiovisual game is also the copyright
owner of these works as well. The term "copyright owner" has the
meaning as defined in section 101, title 17, United States Code.
Section 104.-Effective Date
This section of the bill contains three provisions dealing, respec-
tively, with the general effective date, prospective application, and
termination of rights.
Subsection (a) of the section provides that, subject to subsection
(b), the amendments made by this title shall take effect on the date
of enactment. Subsection (b) further clarifies that persons who ac-
quired lawfully made copies of a computer program before the date
of enactment may dispose of those copies on or after the date of
enactment in any manner permitted by section 109 of title 17,
United States Code, as in effect on the day before the date of enact-
ment. Subsection (c) provides that the rights granted in section 102
of the bill shall terminate on October 1, 1997.
Section 105.-Recordation of Shareware
Section 105 of the bill-which is uncodified-authorizes the Reg-
ister of Copyrights to record documents relating to shareware, to
maintain current, separate records relating to such documents, and
to publish at periodic intervals information relating to such recor-
dations. The purpose of section 105 is to encourage individuals de-
siring to permit unrestricted, or liberal, use of software they create,
to file documents to that effect with the Copyright Office so that an
effective public record will be available.
34 883 F.2d 275 (4th Cir. 1989), cert. denied, 110 S.Ct. 869 (199O% See analysis of this case,
supra, in the Discussion section of this Report.
#:334
Subsection (a) authorizes the Register, upon receipt of a docu-

ment designated as pertaining to computer shareware, to record
the document and return it with a certificate of recordation. Such
a document could include license agreements and statements that
the author attaches conditions to the use or distribution of a com-
puter program. Documents would be recorded under the fee struc-
ture in effect for other documents relating to copyright.
For purposes of this section, shareware is computer software
which meets the standard of originality in the Copyright Act but
for which the author sets certain conditions for its use and distri-
bution. The Committee is aware that the terms "computer
shareware" and "public domain computer shareware" are not
found in the Copyright Act, and are susceptible of different mean-
ings in the computer and legal communities. It is apparent that
there is a lack of a central clearinghouse for information about
shareware, and that such a clearinghouse would aid in wider dis-
semination of such works. The Register is given wide latitude to
promulgate practices and procedures that fulfill the purposes of
this section and also to obtain information-prior to the "sunset"
of this Title-about an important manifestation of the creative
computer community. Because of the different interpretations of
the term shareware in the computer industry, it will be left up to
the individual author submitting the document to designate it as
pertaining to shareware. Failure to so designate the document will
result in the document being recorded with the general copyright
records. Computer shareware does not include electronic data
bases, or other works of authorship.
Subsection (b) provides the Register with authority to maintain
current, separate records relating to the recordation of documents
and to compile and publish at periodic intervals information relat-
ing to such recordations. Such publications shall be offered to the
public at prices based on the cost of reproduction and distribution.
In order to facilitate access to shareware, Title I of H.R. 5498
provides, in subsection (c) of section 105, that any individual record-
ing a document pertaining to shareware may also deposit two
copies of the shareware as embodied in machine-readable form for
the benefit of the Library of Congress' Machine-Readable Reading
Room. The nature of the deposit is to be determined by the defini-
tion of "best edition" contained in section 101 of title 17, United
States Code. Subsection (c) does not affect the mandatory deposit
requirements of section 407 of title 17, United States Code, for com-
puter software that is subject to copyright.
Subsection (d) authorizes the Register to establish regulations in
,conformity with law for the administration of the functions of the
Copyright Office. All regulations are subject to the approval of the
Librarian of Congress.
TILE 1.-ARCHITECTURAL WORKS

This section provides that this title may be cited as the "Archi-
tectural Works Copyright Protection Act of 1990."
#:335
Section 202.-Definitions
Section 202 adds a new definition ("architectural work") to the
Copyright Act and amends an existing definition ("Berne Conven-
tion work").
Subsection (a) amends section 101 of title 17, United States Code,
to provide a definition of the subject matter protected by the bill,
"architectural works." An "architectural work" is defined as "the
design of a building as embodied in any tangible medium of expres-
sion, including a building, architectural plans, or drawings." The
work includes "the overall form as well as the arrangement and
composition of spaces and elements in the design, but does not in-
clude individual standard features."
The definition has two components. First, it states what is pro-
tected. Second, it specifies the material objects in which the archi-
tectural work may be embodied. The protected work in the design
of a building. The term "design" includes the overall form as well
as the arrangement and composition of spaces and elements in the
design. The phrase "arrangement and composition of spaces and
elements" recognizes that: (1) creativity in architecture frequently
takes the form of a selection, coordination, or arrangement of un-
protectible elements into an original, protectible whole; (2) an ar-
chitect may incorporate new, protectible design elements into oth-
erwise standard, unprotectible building features; and (3) interior ar-
chitecture may be protected.
Consistent with other provisons of the Copyright Act and Copy-
right Office regulations35 the definition makes clear that protection
does not extend to individual standard features, such as common
windows, doors, and other staple building components. A grant of
exclusive rights in such features would impede, rather than pro-
mote, the progress of architectural innovation. The provision is not,
however, intended to exlude from the copyright in the architectur-
al work any individual features that reflect the architect's 36 crea-
tivity.
Critic Ada Louise Huxtable once provided the following comment
that may be helpful as an expression of the policy behind the legis-
lation:
[Tiechnology is not art, and form only follows function
as a starting point, or life and art would be much simpler
than they are. The key to the art of architecture is the
conviction and sensitivity with which technology and func-
tion are interpreted 37
aesthetically, in solutions of a practi-
cal social purpose.
Architect Michael Graves, a witness before the Subcommittee,
provided further guidance in an essay entitled "A Case for Figura-
tive Architecture." Mr. Graves explained his design efforts by de-
scribing two types of architectural language, "internal" and
"poetic." Internal language is "intrinsic to building in its most
:6See 17 U.S.C. § 102(b) (1978); 37 CFR 202.1.
6 Protection is not limited to architects. Any individual creating an architectural work is en-
titled to exercise the exclusive rights, granted under the bill, without regard to professional
training or state licensing requirements. The general provisions of the Copyright Act governing
ownership and transfer of copyrighted works shall apply equally to architectural works.
3 AL. Huxtable, "Architecture Anyone?" (1986).
#:336
basic form-determined by pragmatic, constructional, and techni-

cal requirements." Poetic language is "responsive to issues external
to the building, and incorporates the three-dimensional expression
of the myths and rituals of society." 38 The intent of the legislation
is to protect only what Mr. Graves calls "poetic language."
During the Subcommittee's 1990 hearing, testimony was received
that a potential gap in protection may exist where an architectural
work has been depicted in plans or drawings, but has not yet been
constructed. 3 9 Since the original definition of architectural work in
H.R. 3990 referred only to architectural works "as embodied in"
buildings, there was concern that a defendant with access to the
plans or drawings could construct an identical building but escape
liability so long as the plans or drawings were not copied.
The Register of Copyrights disagrees that liability could be avoid-
ed in such circumstances, arguing that the witnesses misconstrued
the access prong of infringement analysis. The Register's position,
based on general principles of copyright law, is that where a three-
dimensional work meets the standard for protection, infringement
may lie regardless of whether access to the three-dimensional work
is obtained
40
from a two-dimensional or three-dimensional depiction
thereof.
In order to resolve this debate, subsection 202(a) of title II of H.R.
5498 modifies the definition of architectural work so that a work of
architecture may be embodied in the built design-the constructed
three-dimensional building-or in plans, drawings, or in "any tan-
gible medium of expression," such as a blueprint or computer disk.
Protection for architectural plans, drawings, and models as pictori-
al, graphic, or sculptural works under section 102(a)(5), title 17,
United States Code, is unaffected by this bill.
This change does, however, raise questions regarding the rela-
tionship between copyright in the architectural work and copyright
in plans and drawings. The bill's intention is to keep these two
forms of protection separate. An individual creating an architectur-
al work by depicting that work in plans or drawing will have two
separate copyrights, one in the architectural work (section
102(a)(8)), the other in the plans or drawings (section 102(a)(5)).
Either or both of these copyrights may be infringed and eligible
separately for damages. in cases where it is found that both the ar-
chitectural work and the plans have been infringed, courts or
juries may reduce an award of damages as necessary to avoid
double remuneration, but the basic concept of election of protec-
tion 4 1 is important and must be preserved.
The Subcommittee made a second amendment in the definition
of architectural work: the deletion of the phrase "or three-dimen-
sional structure." This phrase was included in H.R. 3990 to cover
cases where architectural works embodied in innovative structures
85 Graves, "Buildings and Projects 1966-1981" at 11 (9182).

39This point was eloquently made by Professor Jane C. Ginsburg in a statement submitted to
the Subcommittee. See Architectural Design Hearings, supra note 4, at 184-187.
40 Id. at 67-68.
41The Subcommittee was aware that certain works of authorship which may separately qual-
ifyfor protection as pictorial, graphic, or sculptural works may branently emboi, in
architectural works. Stained glass windows are one such example. Election is inappropriate in
any case where the copyright owner of a pictorial, graphic, or sculptural work emboded i an
architectural work isdifferent from the copyright owner of the architectural work.
#:337
that defy easy classification. Unfortunately, the phrase also could

be interpreted as covering interstate highway bridges, cloverleafs,
canals, dams, and pedestrian walkways. The Subcommittee exam-
ined protection for these works, some of which form important ele-
ments of this nation's transportation system, and determined that
copyright protection is not necessary to stimulate creativity or pro-
hibit unauthorized reproduction.
The sole purpose of legislating at this time is to place the United
States unequivocally in compliance with its Berne Convention obli-
gations. Protection for bridges and related nonhabitable three-di-
mensional structures is not required by the Berne Convention. Ac-
cordingly, the question of copyright protection for these works can
be deferred to another day. As a consequence, the phrase "or other
three-dimensional structures" was deleted from the definition of
architectural work and from all other places in the bill.
This deletion, though, raises more sharply the question of what
is meant by the term "building." Obviously, the term encompassed
habitable structures such as houses and office buildings. It also
covers structures that are used, but not inhabited, by human
beings, such as churches, pergolas, gazebos, and garden pavilions.
Subsection (b) amends the definitions of "Berne Convention
work" in section 101, title 17, United States Code, to provide a
point of attachment for national eligibility purposes. An architec-
tural work is a "Berne Convention work" if the building in which
the architectural work is embodied "is erected in a country adher-
ing to the Berne Convention." This amendment is necessitated by
United States membership in the Berne Union.
Section 203.-Subject Matter of Copyright
This provision amends section 102, title 17, United States Code,
to create a new category of protected subject matter: "architectural
works." By creating a new category of protectible subject matter in
new section 102(a)(8), and, therefore, by deliberately not encompass-
ing architectural works as pictorial, graphic, or sculptural works in
existing section 102(a)(5), the copyrightability of architectural
works shall not be evaluated under the separability test applicable
to pictorial, graphic, or sculptural works embodied in useful arti-
cles. There is considerable scholarly and judicial disagreement over
how to apply the separability test, 4 2 and the principal reason for
not treating architectural works as pictorial, graphic, or sculptural
works is to avoid entangling architectural works in this disagree-
43
ment.
The Committee does not suggest, though, that in evaluating the
copyrightability or scope of protection for architectural works, the
Copyright Office or the courts should ignore functionality. A two-
step analysis is envisioned. First, an architectural work should be
examined to determine whether there are original design elements
present, including overall shape and interior architecture. If such
design elements are present, a second step is reached to examine
42 See Perlutter, "Conceptual Separability and Copyright in the Design of Useful Articles," 37
J. Copr. Soc'y 339 (1990) for a helpful review of this issue.
10 Monumental, nonfunctional works of architecture are currently protected under section
102(aX5) of title 17 as sculptural works. These works are, nevertheless, architectural works, and
as such, will not be protected exclusively under section 102(aX8).
#:338
whether the design elements are functionally required. If the

design elements are not functionally required, the work is protecti-
ble without regard to physical or conceptual separability. As a con-
sequence, contrary to the Committee's report accompanying the
1976 Copyright Act with respect to industrial products, 4 4 the aes-
thetically pleasing overall4 5 shape of an architectural work could be
protected under this bill.
The proper scope of protection for architectural works is distinct
from registrability. Functional considerations may, for example, de-
termine only particular design elements. Protection would be
denied for the functionally determined elements, but would be
available for the nonfunctional determined elements. Under such
circumstances, the Copyright Office should issue a certificate of
registration, letting the courts determine the scope of protection. In
each case, the courts must be free to decide the issue upon the facts
presented, free of the separability conundrum presented by the
useful articles doctrine applicable for pictorial, graphic, and sculp-
tural works. Evidence that there is more than one method of ob-
taining a given functional result may be considered in evaluating
registrability or the scope of protection.
The proposed legislation incorporates the general standards of
originality applicable for all other copyrightable subject matter.
This standard "does not include requirements of novelty, ingenuity,
or aestheticc merit." 46 Subjective determinations of artistic or aes-
thetic merit are inappropriate and contrary to fundamental princi-
47
ples of copyright law.
As a result of the incorporation of the general standard of origi-
nality for architectual works, determinations of infringement of ar-
chitectual works are to be made according to the same standard ap-
plicable to all other forms of protected subject matter. The refer-
ences in the definition of "architectural work" to "overall form,"
and to the nonprotectibility of "individual standard features" are
not intended to indicate that a higher standard of similarity is re-
quired to prove infringement of an architectural work, or that the
scope of protection of architectural works is limited to verbatim or
near-verbatim copying. These definitional provisions are intended
merely to give the courts some guidance regarding the nature of
the protected matter. The extent of protection is to be made on an
ad hoc basis.
Section 204.-Scope of Exclusive Rights on Architectural Works
Section 204 creates a new section 120 of title 17, United States
Code, limiting the exclusive rights in architectural works.
Subsection (a) of new section 120 permits the unauthorized
"making, distributing, or public display of pictures, paintings, pho-
tographs, or other pictorial representations of the work, if the
building in which the work is embodied is located in or ordinarily
44 H. Rep. No. 94-1476, 94th Cong., 2d sess. 55 (1976).

45Chairman Kastenmeier forcefully made these points in his introductory statement on the
House floor, 136 Cong. Rec. E259-60 (daily ed. Feb. 7, 1990).
4-H. Rept. No. 94-1476, 94th Cong., 2d sess. 51 (1976).
47Bleistein v. Donaldson Lithographic Co., 188 U.S. 239 (1903).
#:339
22
visible from a public place." 48 Similar exceptions are found in
many Berne member countries, and serve to balance the interests
of authors and the public. 4 9 Architecture is a public art form and
is enjoyed as such. Millions of people visit our cities every year and
take back home photographs, posters, and other pictorial represen-
tations of prominent works of architecture as a memory of their
trip. Additionally, numerous scholarly books on architecture are
based on the ability to use photographs of architectural works.
These uses do not interfere with the normal exploitation of archi.
tectural works. Given the important public purpose served by these
uses and the lack of harm to the copyright owner's market, the
Committee chose to provide an exemption, rather than rely on the
doctrine of fair use, which requires ad hoc determinations. After a
careful examination of the provisions of the Berne Convention, the
laws of other Berne member countries, and expert opinion, the
Committee concluded that this exemption is consistent with our ob-
ligations under the Convention.50
Subsection (b) provides a limitation on the copyright owner's
right-under section 106(2) of title 17, United States Code-to pre-
pare derivative works. Subsection (b) permits the owner of a build-
ing embodying a protected architectural work to "make or author-
ize the making of alterations to such building, and to destroy or au-
thorize the destruction of such building" without the copyright
owner's consent. 5 1 With respect to the right to destroy a building
embodying a protected architectural work, the provision is consist-
ent with existing section 109(a) of title 17, United States Code. Sec-
tion 109(a) permits the owner of a particular copy or phonorecord
lawfully made to "sell or otherwise dispose of the possession of that
copy of phonorecord." While the provisions of section 109(a) apply
4 As introduced, Section 4 of H.R. 3990 limited the exemption in section 102(a) to instances
where the architectural work was "located in a public place." The Subcommittee added the
phrase "or ordinarily visible from" after the works "located in" to broaden the exemption to
include buildings located on private property but visible from a public place. Nothing in this
amendment permits or condones trespassing in order to make such pictorial representations.
49 These include the Central African Republic (Article 15); Chile (Articles 43, 44); Colombia
(Article 44); Congo (Article 7); Costa Rica (Article 71); Czechoslovakia (Article 32); Denmark (Ar-
ticle 25); Finland (Article 25); Federal Republic of Germany (Article 59(1)); India (Articles 52(s),
(x)); Ireland (Article 12(3)(b)); Israel (Article 2); Luxembourg (Article 21); Mexico (Article 18(c));
Morocco (Article 20); New Zealand (Articles 20(3)-(5)); Norway (Article 23); Pakistan (Articles
57(lXs) & (t)); Peru (Article 72); Poland (Articles 20(5) & (6)); Rwanda (Article 18(4)); Senegal (Ar-
ticle 14); South Africa (Articles 10(2) & (4)); Sweden (Article 25); Switzerland (Article 30(gX3));
Tunisia (Article 14); United Kingdom (Articles 59 (1) & (2), 62); Uruguay (Article 44 (cX2)); Ven-
ezuela (Articles 44(3)); Yugoslavia (Articles 48(4) & (5); 49(5)). Cf. Belgium Article 21bis (reproduc-
tion permissible only where necessary for reporting current events; Iceland (Article 16; where
the architectural work forms the chief motif of the two-dimensional reproduction, the author is
entitled to remuneration); Japan (Article 46; "imitative reproductions' are not permitted, nor
reproductions whose purpose is exclusively the selling of copies of the work); Netherlands (Arti-
cle 18; similar to Iceland). French case law makes distinctions similar to those found in the Ice-
landic statute. See Huet, "Architecture and Copyright," 19 UNESCO Copyright Bulletin 18
(1985).
5
The American Institute of Architects (AIA)proposed an amendment to section 120(a) pro-
hibiting pictorial representations made in order to further the unauthorized design and con-
struction of a substantially similar architectural work. The Subcommittee believed such an
amendment was unnecessary. If an unauthorized substantially similar architectural work is con-
structed, it is irrelevant how the design of the infringing building is achieved so long as the
design is not independently created.
The proposed AIA amendment might also interfere with scholarly and noncompetitive analy-
sis of architectural works, and with the ability of photographers to pursue their livelihood. The
American Society of Magazine Photographers wrote to the Subcommittee opposing the AIA
amendment on this ground.
ts This provision was supported by all witnesses at the Subcommittee's hearing. See Architec-
tural Design Hearings, supra note 4.
#:340
to architectural works, in light of the fact that architectural works

represent a new category of protected subject matter, and unlike
other forms of subject matter are habitable, the Committee be-
lieved it advisable to spell out expressly the limitations contained
in section 120(b). 2
Section 205.-Preemption
Section 205 amends section 301(b) of title 17, United States Code,
by adding a new paragraph (4). The new provision provides that
state and local landmark, historic preservation, zoning, or building
codes relating to architectural works protected under section
102(a)(8) are not preempted by the Copyright Act. These codes will,
accordingly, not be affected by passage of the bill.
Section 206.-Effective Date
The bill is prospective, protecting: (1) "architectural works cre-
ated on or after the date of enactment"; and, (2) "architectural
works that on the date of enactment are unconstructed and em-
bodied in unpublished plans or drawings." This latter form of pro-
tection is subject to possible termination on December 31, 2002 de-
pending on whether the work has been constructed by that date,
and is derived from the bill's definition of architectural work.
Under the definition, an architectural work can be embodied in
any tangible medium of expression, including architectural plans
or drawings. An architectural work that has not been constructed
before the date of enactment, but which has been embodied in
plans or drawings which themselves are unpublished on the date of
enactment, is protected under the bill against unauthorized con-
struction that occurs on or after the date of enactment.5 3 The
result does not violate prohibitions against retroactivity since the
activity giving rise to liability-construction of a substantially simi-
lar architectural work-can only occur on or after the date of en-
actment, and since the architectural work is embodies in subject
matter that is itself already protected under the Copyright Act,
namely, unpublished plans or drawings.
52 The proposed legislation does not amend section 106 of title 17, United States Code, regard-
ing "Exclusive rights in copyrighted works". Accordingly, the owner of copyright in an architec-
tural work is granted a right of reproduction, a right to prepare derivative works (limited, how-
ever, by section 120(b)), and a right to distribute the architectural work, but it is not given a
right to publicly perform or publicly display the architectural work. The right of public perform-
ance has no applicability to architectural works. While the right to publicly display an architec-
tural work would have some benefit to copyright owners, the right would conflict with section
120(a), and, further, is not required by the Berne Convention.
The Committee considered the question of moral rights for architectural works. None of the
witnesses at the Subcommittee's March 14, 1990 hearing testified in favor of an express statuto-
ry grant of such rights. Accordingly, the bill does not contain an express or implied statutory
grant of moral rights. Architects' moral rights will, therefore, be governed by the law as cur-
rently exists. See Berne Convention Implementation Act of 1988, Public Law 100-568, sec. 3(b),
102 Stat. 2853.
53 The Subcommittee deliberately limited this provision to architectural works embodied in
unpublished plans or drawings, rather than using the broader term "any tangible medium of
expression" contained in the definition of "architectural work." The purpose of the exception is
to encourage architects who have kept drawings and plans private to disclose them free of fear
that disclosure will result in lack of protection against a substantially similar constructed archi-
tectural work.
#:341
This provision does, however, raise the question of term of pro

tection. To aid copyright owners, the public, and the courts, the
Committee believes it would be helpful to explain in some detail
the various terms of protection that will vest under the bill.
Architectural Works created on or after the date of enactment
These works will be governed by section 302 of title 17, United
States Code: that is, works created by individuals will have a copy-
right measured by the life of the author plus 50 years; works cre-
ated under a work-made-for-hire arrangement, anonymously, or
under a pseudonym will have a copyright measured from 100 years
from creation or 75 years from publication, whichever occurs first.
The Committee considered, but rejected, amending the Copyright
Act to provide a special definition of publication of an architectural
work. Instead, the general
54
definition in section 101, title 17, United
States Code, will apply.
Architectural Works unconstructed on the date of enactment
The term of protection for architectural works unconstructed on
the date of enactment and embodied in unpublished plans or draw-
ings will be governed by sections 302 and 303 of title 17, United
States Code. In order to encourage authors of architectural works
to construct their unpublished creations, a provisional cut-off date
of December 31, 2002, has been provided: works that would ordinar-
ily be eligible for a term of protection continuing past that date
will lose protection on that date if the architectural work has not
been constructed. 5 5 The actual term will vary depending upon a
number of factors, including whether the work was created by an
individual, or under a work-made-for-hire arrangement, or whether
the work is published before December 31, 2002,56 but two basic
categories may be identified. Within each category, two examples
are given, illustrating the relevant principle governing the calcula-
tion of term.
1. Works created by individuals.-These works will be governed
in the first instance by the life plus 50 years post mortem auctoris
term in section 302 of title 17, United States Code:
A. Author dies in 1990. Term will expire in 2040 under sec-
tion 302; however, under the bill the term will expire on De-
cember 31, 2002 unless the architectural work is constructed
by that date.
B. Author died in 1940. Under section 303, the term will
expire on December 31, 2002, unless the architectural work is
constructed and published before that date, in which case pro-
tection will expire on December 31, 2027.
"'Publication' is the distribution of copies or phonorecords of a work to the public by sale

or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies
or photorecords to a group of persons for purposes of further distribution, public performance, or
public display, constitutes publication. A public performance or display of a work does not of
itself constitute publication."
This date is derived from section 303, title 17, United States Code.
"The definition of "publication" in the 1976 Copyright Act is to be used in making these
determinations. The term of protection for the plans and drawings embodying the architectural
work is unaffected by this bill. Since architectural plans and drawings represent a separate cate-
gory of authorship from architectural works, publication of plans and drawings is not publica-
tion or an architectural work.
#:342
2. Works created under work-made-for-hire.-These works will be

governed in the first instance by the term set forth in section 302
of title 17, United States Code: 100 years from the date of creation;
the 75 year term for published works made-for-hire will not apply,
since the provisions of section 6 of the proposed legislation are lim-
ited to architectural works that are unconstructed on the date of
enactment.
A. Work is created in 1902. Term will expire on December
31, 2002, unless the work is constructed and published before
that date, in which case the term will expire on December 31,
2027.
B. Work is created in 1950. Term will expire 2050, unless the
work is not constructed by December 31, 2002, in which case
protection will expire on that date.
COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 2(l)(3)(A) of rule XI of the Rules of the

House of Representatives, the Committee reports that the findings
and recommendations of the Committee, based on oversight activi-
ties under clause 2(b)(1) of rule X of the Rules of the House of Rep-
resentatives, are incorporated in the descriptive portions of this
report. The Committee has oversight over the functioning of the
Copyright Act, including the administrative responsibilities of the
Copyright Office, and conformity of American law to our treaty (bi-
lateral and multilateral) responsibilities.
COMMITTEE ON GOVERNMENT OPERATIONS OVERSIGHT FINDINGS
No findings or recommendations of the Committee on Govern-

ment Operations were received as referred to in clause 2(l)(3)(D) of
rule XI of the Rules of the House of Representatives.
NEW BUDGET AUTHORITY AND TAX EXPENDITURES
Clause 2(1)(3)(B) of House Rule XI is inapplicable because this leg-

islation does not provide new budgetary authority or increased tax
expenditures.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
In compliance with clause 2(l)(C)(3) of rule XI of the Rules of the
House of Representatives the Committee sets forth, with respect to
the bill H.R. 5498, the following estimate and comparison prepared
by the Director of the Congressional Budget Office under section
403 of the Congressional Budget Act of 1974:
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, September 21, 1990.
Hon. JACK BROOKS,
Chairman, Committee on the Judiciary,
U.S. House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has re-
viewed H.R. 5498, the Copyrights Amendments Act of 1990, as or-
dered reported by the House Committee on the Judiciary, Septem-
#:343
ber 18, 1990. We estimate that the bill would result in additional
annual costs to the Copyright Office of about $100,000. These costs
would be at least partially offset by receipts collected for the regis-
tration of copyrighted material or recordation of certain computer
software.
Title I would prohibit the rental, lease, or loan of computer soft-
ware programs for purposes of commercial advantage, with certain
exceptions. This title would require the Register of Copyrights to
establish regulations to administer this provision and to report
within three years on the effects of the bill. In addition, the Regis-
ter of copyrights would be required to record and maintain docu-
ments regarding computer shareware. Based on information from
the Copyright Office, these provisions would not result in signifi-
cant costs or additional receipts.
Title II would expand existing copyright protections to architec-
tural works. Under this title, the Copyright Office would be
charged with preparing new forms, reviewing copyright applica-
tions, and cataloging registrations. CBO estimates that these duties
would result in annual costs of about $100,000. These costs would
be offset to a significant extent by filing fees paid by persons who
wish to register copyrights for architectural works. Based on infor-
mation from the Copyright Office, these fees could total up to
$100,000 each year. However, the actual collections would depend
on the number of applications, which is very uncertain. If you wish
further details on this estimate, we will be pleased to provide them.
The staff contact is Laura Carter, who can be reached at 226-2860.
Sincerely,
ROBERT D. REISCHAUER,
Director.
INFLATIONARY IMPACT STATEMENT
Pursuant to clause 2(l)(4) of rule XI of the Rules of the House of
Representatives, the Committee estimates that H.R. 5498 will have
no significant inflationary impact on prices and costs in the nation-
al economy.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be omit-
ted is enclosed in black brackets, new matter is printed in italic,
existing law in which no change is proposed is shown in roman):
#:344
27
TITLE 17, UNITED STATES CODE
CHAPTER 1-SUBJECT MATTER AND SCOPE OF

COPYRIGHT
Sec.
101. Definitions.
102. Subject matter of copyright: In general.
119. Limitations on exclusive rights: Secondary transmissions of superstations and

network stations for private home viewing.
120. Scope of exclusive rights in architecturalworks.
§ 101. Definitions
As used in this title, the following terms and their variant forms
mean the following:
An "anonymous work" is a work on the copies or phonore-
cords of which no natural person is identified as author.
An "architecturalwork" is the design of a building as em-
bodied in any tangible medium of expression, including a build-
ing, architecturalplans, or drawings. The work includes the
overall form as well as the arrangement and composition of
spaces and elements in the design, but does not include individ-
ual standardfeatures.
* * * * * *
A work is a "Berne Convention work" if-

(1) * * *
(3) in the case of an audiovisual work-

(A) * * *
(B) if one or more of the authors is an individual, that
author is domiciled, or has his or her habitual residence
in, a nation adhering to the Berne Convention; [or]
(4) in the case of a pictorial, graphic, or sculptural work that
is incorporated in a building or other structure, the building or
structure is located in a nation adhering to the Berne Conven-
tion[.]; or
(5) in the case of an architecturalwork embodied in a build-
ing, such building is erected in a country adhering to the Berne
Convention.
§ 102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of ex-
pression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly
#:345
or with the aid of a machine or device. Works of authorship in-

clude the following categories:
(1) * * *
* * * * * * *
(6) motion pictures and other audiovisual works; [and]

(7) sound recordings[.]; and
(8) architecturalworks.
* * * * * * *
§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through [119] 120, the owner of copy-
right under this title has the exclusive rights to do and to author-
ize any of the following:
(1) * * *
§ 109. Limitations on exclusive rights: Effect of transfer of par-

ticular copy or phonorecord
(a) * * *
[(b)(1) Notwithstanding the provisions of subsection (a), unless
authorized by the owners of copyright in the sound recording and
in the musical works embodied therein, the owner of a particular
phonorecord may not, for purposes of direct or indirect commercial
advantage, dispose of, or authorize the disposal of, the possession of
that phonorecord by rental, lease, or lending, or by any other act
or practice in the nature of rental, lease, or lending. Nothing in the
preceding sentence shall apply to the rental, lease, or lending of a
phonorecord for nonprofit purposes by a nonprofit library or non-
profit educational institution.]
(b)(1)(A) Notwithstanding the provisions of subsection (a), unless
authorized by the owners of copyright in the sound recording or the
owner of copyright in a computerprogram (including any tape, disk,
or other medium embodying such program), and in the case of a
sound recording in the musical works embodied therein, neither the
owner of a particularphonorecord nor any person in possession of a
particularcopy of a computer program (including any tape, disk, or
other medium embodying such program), may, for the purposes of
direct or indirect commercial advantage,dispose of, or authorize the
disposal of, the possession of that phonorecord or computer program
(includingany tape disk, or other medium embodying such program)
by rental, lease or lending, or by any other act or practice in the
nature of rental, lease, or lending. Nothing in the preceding sentence
shall apply to the rental, lease, or lending of a phonorecord for non-
profit purposes by a nonprofit library or nonprofit educationalinsti-
tution. The transfer of possession of a lawfully made copy of a com-
puter program by a nonprofit educational institution to another
nonprofit educational institution or to a faculty, staff, and students
does not constitute rental, lease, or lending for direct or indirect
commercial purposes under this subsection.
(B) This subsection does not apply to-
(i) a computer program which is embodied in a machine or
product and which cannot be copied during the ordinary oper-
ation or use of the machine or product; or
#:346
(ii) a computer program embodied in or used in conjunction

with a limited purpose computer that is designed for playing
video games and may be designed for otherpurposes.
(C) Nothing in this subsection affects any provision of chapter 9 of
this title.
(2(A) Nothing in this subsection shall apply to the lending of a
computer program for nonprofit purposes by a nonprofit library, if
each copy of a computer program which is lent by such library has
affixed to the packaging containing the program warning of copy-
right in accordance with requirements that the Register of Copy-
rights shall prescribe by regulation.
(B) Not later than three years after the date of the enactment of
the Computer Software Rental Amendments Act of 1990, and at
such times thereafter as the Register of Copyright considers appro-
priate, the Register of Copyrights, after consultation with represent-
atives of copyright owners and librarians,shall submit to the Con-
gress a report stating whether this paragraph has achieved its in-
tended purpose of maintainingthe integrity of the copyright system
while providing nonprofit libraries the capability to fulfill their
function. Such report shall advise the Congress as to any informa-
tion or recommendations that the Register of Copyrights considers
necessary to carry out the purposes of this subsection.
[(2) (3) Nothing in this subsection shall affect any provision of
the antitrust laws. For purposes of the preceding sentence, "anti-
trust laws" has the meaning given that term in the first section of
the Clayton Act and includes section 5 of the Federal Trade Com-
mission Act to the extent that section relates to unfair methods of
competition.
[(3) Any person who distributes a phonorecord in violation of
clause (1) is an infringer of copyright under section 501 of this title
and is subject to the remedies set forth in sections 502, 503, 504,
505, and 509. Such violation shall not be a criminal offense under
section 506 or cause such person to be subject to the criminal pen-
alties set forth in section 2319 of title 18.]
(4) Any person who distributes a phonorecord or a copy of a com-
puter program (including any tape, disk, or other medium embody-
ing such program) in violation of paragraph(1) is an infringer of
copyright under section 501 of this title and is subject to the reme-
dies set forth in sections 502, 503, 504, 505, and 509. Such violation
shall not be a criminal offense under section 506 or cause such
person to be subject to the criminal penalties set forth in section
2319 of title 18.
(e) Notwithstanding the provisions of sections 106(4) and 106(5), in

the case of an electronic audiovisualgame intended for use in coin-
operated equipment, the owner of a particularcopy of such a game
lawfully made under this title, is entitled, without the authority of
the copyright owner of the game, to publicly perform or display that
game in coin-operated equipment, except that this subsection shall
not apply to any work of authorship embodied in the audiovisual
game if the copyright owner of the electronic audiovisualgame is
not also the copyright owner of the work of authorship.
#:347
§120. Scope of exclusive rights in architectural works

(a) PICTORIAL REPRESENTATIONS PERMITTED.-The copyright in
an architecturalwork that has been constructed does not include
the right to prevent the making, distributing,or public display of
pictures,paintings,photographs,or other pictorialrepresentationsof
the work, if the building in which the work is embodied is located
in or ordinarily visible from a public place.
(b) ALTERATIONS TO AND DESTRUCTION OF BUILDINGS.-Notwith-
standing the provisions of section 106(2), the owners of a building
embodying an architectural work may, without the consent of the
author or copyright owner of the architectural work, make or au-
thorize the making of alterations to such building, and destroy or
authorize the destruction of such building.
CHAPTER 3-DURATION OF COPYRIGHT
§ 301. Preemption with respect to other laws

(a) * * *
(b) Nothing in this title annuls or limits any rights or remedies
under the common law or statutes of any State with respect to-
(1) * * *
(2) any cause of action arising from undertakings commenced
before January 1, 1978; [or]
(3) activities violating legal or equitable rights that are not
equivalent to any of the exclusive rights within the general
scope of copyright as specified by section 106 [. ]; or
(4) State and local landmarks, historic preservation, zoning,
or building codes, relating to architectural works protected
under section 102(a)(8).

Falkner v. General Motors - Oppostion To MSJ

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Falkner v. General Motors - Oppostion To MSJ

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Adrian Falkner v. General Motors Company et al, Docket No. 2:18-cv-00549 (C.D. Cal.

Jan 22, 2018), Court Docket

1 GLUCK LAW FIRM P.C.

4 ERIKSON LAW GROUP

8 Attorneys for Plaintiff

10 UNITED STATES DISTRICT COURT

13 ADRIAN FALKNER, an individual; Case No. 2:18-cv-00549-SVW-JPR

21 In The Alternative, Partial Summary Judgment (the “Motion”). GM’s Motion is

23 permitting photography of works protected by architectural copyrights, represents a

24 complete defense to Plaintiff’s copyright infringement claim and can be established

26 of Plaintiff’s 17 U.S.C. 1202(b) (“Section 1202”) claim for removal of copyright

27 management information (“CMI”).

OPPOSITION TO MOTION FOR SUMMARY

i OPPOSITION TO MOTION FOR SUMMARY

he took the infringing photograph. .............................................................. 23

ii OPPOSITION TO MOTION FOR SUMMARY

19 Leicester v. Warner Bros., 232 F.3d 1212 (9th Cir. 2000).......................................................... 4, 12

22 Rivera-Torres v. Rey-Hernandez, 502 F.3d 7 (1st Cir. 2007) ......................................................... 24

iii OPPOSITION TO MOTION FOR SUMMARY

iv OPPOSITION TO MOTION FOR SUMMARY

8 something more than a functional combination of “standard features.” Further, as

11 protections. GM is not entitled to summary judgment because it makes no attempt to

12 show these fact-intensive standards are met.

18 become part of one unitary architectural work.

19 In 1990, Congress for the first time expanded copyright protection to

21 signatory to the Berne Convention. The legislation only expanded copyright

24 expansion of copyright protection by specifically allowing photography of

25 architectural works (which Congress determined was consistent with Berne). In

27 photography. Rather, it was legislation designed to protect architectural works to the

28 extent required to comply with Berne.

1 OPPOSITION TO MOTION FOR SUMMARY

2 OPPOSITION TO MOTION FOR SUMMARY

3 OPPOSITION TO MOTION FOR SUMMARY

4 OPPOSITION TO MOTION FOR SUMMARY

1 already existed in 17 U.S.C. 102: architectural works. The definition of

5 OPPOSITION TO MOTION FOR SUMMARY

obligations under the Convention. [H.R. Rep. 101–735, at 22.]

6 OPPOSITION TO MOTION FOR SUMMARY

1 than buildings, such as bridges, cloverleafs, dams, walkways, tents, recreational

7 OPPOSITION TO MOTION FOR SUMMARY

1 In Gaylord v. United States, the Federal Circuit considered the issue of

8 OPPOSITION TO MOTION FOR SUMMARY

9 OPPOSITION TO MOTION FOR SUMMARY

10 OPPOSITION TO MOTION FOR SUMMARY

1 Architectural Works Copyright Protection Act of1990, 14 COLUM.- VLAJ.L.

11 OPPOSITION TO MOTION FOR SUMMARY

12 OPPOSITION TO MOTION FOR SUMMARY

1 street. Leicester, at 1214. The owner chose to meet these obligations by

13 OPPOSITION TO MOTION FOR SUMMARY

1 poem were penned on the side of a building, GM believes it would be free to

14 OPPOSITION TO MOTION FOR SUMMARY

15 OPPOSITION TO MOTION FOR SUMMARY

16 OPPOSITION TO MOTION FOR SUMMARY

17 OPPOSITION TO MOTION FOR SUMMARY

18 OPPOSITION TO MOTION FOR SUMMARY

19 OPPOSITION TO MOTION FOR SUMMARY

20 OPPOSITION TO MOTION FOR SUMMARY

21 OPPOSITION TO MOTION FOR SUMMARY

22 OPPOSITION TO MOTION FOR SUMMARY

23 OPPOSITION TO MOTION FOR SUMMARY

24 OPPOSITION TO MOTION FOR SUMMARY

25 OPPOSITION TO MOTION FOR SUMMARY

1 GLUCK LAW FIRM P.C.