# Gunther v. Town of Ogden

> District Court, W.D. New York · November 19, 2019

URL: https://www.frixlaw.com/law-library/cases/10361488

## Case

- **Court:** District Court, W.D. New York
- **Decided:** November 19, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
FREDERICK GUNTHER
and NEW YORK ELECTRICAL
INSPECTION AGENCY,
Plaintiffs,
v.
DECISION AND ORDER
TOWN OF OGDEN, GAY LENHARD, 6:19-CV-06199-MAT
THOMAS COLE, MALCOLM PERRY,
THOMAS USCHOLD, DAVID FEENEY,
and PATRICK SMITH,
Defendants.
__________________________________________
INTRODUCTION
Plaintiffs Frederick Gunther and New York Electrical
Inspection Agency (hereinafter, “Plaintiffs”) bring this action
against defendants Town of Ogden, Gay Lenhard, Thomas Cole, Malcolm
Perry, Thomas Uschold, David Feeney, and Patrick Smith
(collectively, the “Defendants”), alleging violations of the
Copyright Act, 17 U.S.C. § 101, et seq. Docket No. 1.
Presently before the Court is Defendants’ motion to dismiss
Plaintiffs’ complaint for failure to state a claim upon which
relief can be granted, pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Docket No. 8. For the reasons set forth
below, Defendants’ motion is denied.
BACKGROUND
Unless otherwise noted, the following facts are taken from
Plaintiffs’ complaint (Docket No. 1). Mr. Gunther is the President
and Chief Electrical Inspector of New York Electrical Inspection
Agency (“NYEIA”). Docket No. 1 at ¶ 1. Plaintiffs perform
residential and commercial electrical inspections, with their
principal place of business in Rochester, New York. Id. at ¶ 2.
Mr. Gunther is a licensed New York State home inspector and
certified New York State home inspector trainer, as well as a
New York State certified Code Enforcement Officer and certified
Electrical Inspector from the International Association of
Electrical Inspectors. Id. at ¶¶ 9, 10. NYEIA is approved to
conduct residential and commercial electrical inspections in
New York State. Id. at ¶ 11.
Over the past eight years, NYEIA has applied for authorization
to conduct residential electrical inspections in the Town of Ogden,
New York. Id. at ¶ 12. Each application was denied via letter by
defendant Smith, the Town of Ogden Building Inspector/Code
Enforcement Officer. Id. at ¶ 13. Defendant Smith’s denial of
NYEIA’s application was approved by resolution of the Town Board
and its members, which includes defendants Cole, Perry, Uschold,
and Feeney. Id. at ¶¶ 5-8, 14. The most recent denial letter is
dated January 8, 2019. Id. at ¶ 14. As a result of these repeated
denials, Plaintiffs filed an Article 78 proceeding in Monroe County
Supreme Court, on the ground that the denials were “without sound
basis in reason, arbitrary and capricious and an abuse of

discretion.” Id. at ¶ 16.

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In connection with their operations, Plaintiffs utilized the
2014 National Electrical Code (“NEC”). Id. at ¶ 17. In an effort
to simplify the guidelines contained in the NEC, Plaintiffs created
“Helpful Electrical Requirements Sheets” (hereinafter, the “summary
sheets”), which are summaries of NEC electrical wiring requirements
for storable swimming pools, as well as for hot tubs and spas. Id.
at ¶ 18. Plaintiffs’ summary sheets “were drafted in plain
language for ease of understanding based on Gunther’s own personal
knowledge and 20-plus years in the electrical industry.” Id. at
¶ 20. Plaintiffs hold a valid copyright in the summary sheets,
which was registered with the United States Copyright Office on
November 7, 2016, Registration Number TXu 2-032-173. Id. at ¶ 21.
Copies of the relevant NEC Guidelines, Plaintiffs’ summary sheets,
and the Certificate of Registration of the United States Copyright
Office are attached to the complaint. Id. at ¶¶ 18, 19, 21.
Defendant Town of Ogden, through its Supervisor defendant
Lenhard, defendant Smith, and the Town Board, presents on its
website this same information “in substantially the same manner as
Plaintiffs’ Sheets.” Id. at ¶ 22. Copies of the “Town of Ogden
Electrical Requirements for Storable Swimming Pools,” and “Town of
Ogden Electrical Requirements for Hot Tubs & Spas,” are also
attached to the complaint. Id.

On September 22, 2017, Mr. Gunther notified Defendants, via
letter, that the Town of Ogden was improperly publishing
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Plaintiffs’ summary sheets on its website, in violation of
Plaintiffs’ copyright. Id. at ¶ 23. In response, the Town of
Ogden removed Plaintiffs’ name and address from the bottom of the
summary sheets, but continued to publish the summary sheets on its
website. Id. at ¶ 24. On October 13, 2017, Plaintiffs again,
through counsel, notified defendant Lenhard that the Town of Ogden
was improperly utilizing Plaintiffs’ summary sheets without their
permission, and demanded their removal from the Town’s website.
Id. at ¶ 25. Defendant Town of Ogden, through counsel, responded
on October 17, 2017, stating that the summary sheets had initially
been removed, but that the Town webmaster had inadvertently
reinstalled them. Id. at ¶ 26. Counsel also stated that the Town
of Ogden would remove the summary sheets from its website, and
would not use the summary sheets in the future. Id. Copies of the
above-mentioned correspondence are attached to the complaint. See
Docket Nos. 1-6, 1-7, and 1-8. However, the Town of Ogden did not
remove the summary sheets from its website. Docket No. 1 at ¶ 27.
On January 31, 2019, Plaintiffs again, through counsel,
notified the Town of Ogden that it was improperly utilizing
Plaintiffs’ summary sheets without their permission, demanded
removal of the sheets from its website, and demanded that the Town
of Ogden pay damages for its willful copyright infringement. Id.

at ¶ 28. The Town of Ogden responded through its attorney on
February 4, 2019, noting that the information on its website was
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taken directly from the 2014 NEC. Id. at ¶ 29. Enclosed with the
Town’s response were documents counsel thought contained the
relevant provisions of the 2014 NEC; however, “the documents
provided which were the same as those that appeared on Defendant
Town’s website were, in fact, Plaintiffs’ copyrighted Sheets, with
references and contact information of the Plaintiffs removed.” Id.
at ¶ 30. Copies of the above-mentioned correspondence are attached
to the complaint. See Docket Nos. 1-9 and 1-10.
Plaintiffs further allege that “the materials published on
Defendant’s websites are verbatim to Plaintiffs’ Sheets, minus the
diagrams and reference to Plaintiff, and are Plaintiffs’
copyrighted summaries of the 2014 NEC,” and “[t]o date, Plaintiffs’
Sheets are still published on Defendant Town of Ogden’s website.”
Docket No. 1 at ¶¶ 31, 32.
PROCEDURAL HISTORY
Plaintiffs Frederick Gunther and New York Electrical
Inspection Agency filed their complaint on March 18, 2019, alleging
violations of the Copyright Act, 17 U.S.C. § 101, et seq. against
defendants Town of Ogden, Gay Lenhard, Thomas Cole, Malcolm Perry,
Thomas Uschold, David Feeney, and Patrick Smith. Docket No. 1. On
June 5, 2019, Defendants filed a motion to dismiss the complaint.
Docket No. 8. Plaintiffs filed their response on July 9, 2019.
Docket Nos. 12, 13.

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DISCUSSION
I. Standard
To withstand a Rule 12(b)(6) motion to dismiss, the complaint
must plead facts sufficient “to state a claim for relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. Thus, “[w]here a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.” Id. (internal citations and quotation marks omitted).
Determining whether a complaint meets the plausibility standard is
“context-specific” and requires that the court “draw on its
judicial experience and common sense.” Id. at 679.

II. Plaintiffs’ Have Stated a Claim for Copyright Infringement.
“A properly plead copyright infringement claim must allege
1) which specific original works are the subject of the copyright
claim, 2) that plaintiff owns the copyrights in those works, 3)
that the copyrights have been registered in accordance with the
statute, and 4) by what acts during what time the defendant
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infringed the copyright.” Kelly v. L.L. Cool J., 145 F.R.D. 32, 36
(S.D.N.Y. 1992), aff’d, 23 F.3d 398 (2d Cir. 1994); MacDonald v. K-
2 Industries, Inc., 108 F. Supp. 3d 135, 139 (W.D.N.Y. 2015)
(same); see also Lumetrics, Inc. v. Blalock, 23 F. Supp. 3d 138,
142 (W.D.N.Y. 2014) (“A plaintiff must allege the following
elements in order to state a valid claim for copyright
infringement: ‘(1) ownership of a valid copyright, and (2) copying
of constituent elements of the work that are original.’”) (quoting
Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S.
340, 361 (1991)). “There is no heightened pleading requirement
applied to copyright infringement claims . . . a claim of copyright
infringement need only meet the pleading requirements of Rule 8 of
the Federal Rules of Civil Procedure.” Levine v. Landy, 860 F.
Supp. 2d 184, 191 (N.D.N.Y. 2012) (internal citation omitted); see
also McDonald, 108 F. Supp. 3d at 139 (“In short, a copyright
plaintiff need not plead detailed evidence, but she must allege
facts — not just legal conclusions — demonstrating the existence of
a facially plausible claim, i.e., that she owns one or more valid
copyrights that have been infringed by defendants).
Plaintiffs have adequately plead a copyright infringement

claim. The complaint contains allegations identifying the specific
original works, i.e., the summary sheets (see Docket No. 1 at
¶¶ 18-20); Plaintiffs’ ownership of copyrights in the summary
sheets (id. at ¶ 21); that the copyrights are registered (id.); and
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how and when Defendants’ allegedly infringed the copyright (id. at
¶¶ 22-32). The summary sheets, Certificate of Registration, and
Defendants’ alleged infringing works are attached to the complaint.
See Docket Nos. 1-2, 1-4, 1-5.
Defendants argue that “Plaintiffs’ allegations of an essential
element of copyright infringement - that the entries found on the
Town of Ogden’s website were substantially similar to the
protectable elements of Plaintiffs’ ‘Sheets’ - is simply not
supported.” Docket No. 8-1 at 9. Specifically, Defendants contend
that Plaintiffs’ summary sheets contain schematics and diagrams,
while the documents on the Town of Ogden website do not contain
this information. Id. at 10. Defendants also state that the
summary sheets and the Town documents are in a different typeface
and list the Town’s contact information. Id. However, Defendants’
argument ignores the allegation that the text contained in the
summary sheets and the text contained in the alleged infringing
works is identical.
“Substantial similarity does not require literally identical
copying of every detail.” Rogers v. Koons, 960 F.2d 301, 307
(2d Cir. 1992). Rather, “[s]uch similarity is determined by the
ordinary observer test: the inquiry is ‘whether an average lay
observer would recognize the alleged copy as having been
appropriated from the copyrighted work.’ Or, stated another way,
whether ‘the ordinary observer, unless he set out to detect the

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disparities, would be disposed to overlook them, and regard their
aesthetic appeal as the same.’” Id. at 307-08 (quoting Ideal Toy
Corp. v. Fab–Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966) and Peter
Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489
(2d Cir. 1960)).
However, where certain aspects of a copyrighted work are taken
directly from the public domain, the court applies the “more
discerning observer test.” This test “requires ‘substantial
similarity between those elements, and only those elements, that
provide copyrightability to the allegedly infringed work.’ That
is, ‘where the allegedly infringed work contains both protectible
and unprotectible elements, the test must be more discerning,
excluding the unprotectible elements from consideration.’” Logical
Operations Inc. v. 30 Bird Media, LLC, 354 F. Supp. 3d 286, 294
(W.D.N.Y. 2018) (quoting Belair v. MGA Entertainment, Inc., 503 F.
App’x 65, 66 (2d Cir. 2012) and Lynx Ventures, LLC v. Miller, 45 F.
App’x 68, 69 (2d Cir. 2002)). “However, this ‘more discerning’
ordinary observer test must be applied in conjunction with the
‘total concept and feel’ test, so as not to deny protection to
works that have combined unoriginal elements in a unique and
copyrightable fashion[.]” Shine v. Childs, 382 F. Supp. 2d 602,

615 (S.D.N.Y. 2005); see also Logical Operations Inc., 354 F. Supp.
3d at 295 (“Any analysis of substantial similarity must therefore
account for the fact that copyright infringement may result not
only through literal copying of a portion of [a work], but also by
parroting properties that are apparent only when numerous aesthetic
decisions embodied in the plaintiff’s work of art — the excerpting,
modifying, and arranging of public domain compositions, if any,
together with the development and representation of wholly new
motifs and the use of texture and color, etc. — are considered in
relation to one another.”) (internal quotations and citation
omitted) (alteration in original). “[W]ith all of the above
concepts in mind, the court’s substantial similarity analysis
ultimately should be guided by ‘common sense.’” Shine, 382 F. Supp.
2d at 615 (quoting Boisson v. Banian, Ltd., 273 F.3d 262, 273
(2d Cir. 2001)).
As noted above, both the summary sheets and the alleged
infringing works are attached to Plaintiffs’ complaint. See Docket
No. 1-2 at 5-6; Docket No. 1-5 at 2-3. Plaintiffs’ summary sheets
are entitled “Storable Swimming Pools, Electrical Wiring
Requirements,” and “Hot Tubs & Spas - Electrical Wiring
Requirements.” Docket No. 1-2 at 5-6. Defendants’ works are
entitled “Town of Ogden, Electrical Requirements for Storable
Swimming Pools,” and “Town of Ogden, Electrical Requirements for
Hot Tubs & Spas.” Docket No. 1-5 at 2-3.
For the works addressing the electrical requirements for
storable swimming pools, the substantive text of each work, i.e.,
the “definition” of a storable pool, as well as the information
contained in items one through four of each document, are mostly
identical. Compare Docket No. 1-2 at 5 with Docket No. 1-5 at 2.
In other words, as Plaintiffs allege in their complaint, it appears
that Defendants simply copied the text from Plaintiffs’ summary
sheet, made some adjustments to the font, and placed it into their
own document. The layout of the documents into subparts “1"
through “4" is also the same. The Court notes that information
contained in the header and footer of each document, i.e., the
wording of the titles and contact information, is different.
Defendants’ work also contains instructions for submitting an
application for a storable pool, while Plaintiffs’ summary sheet
contains a diagram.
For the works addressing the electrical requirements for hot
tubs and spas, the substantive text of each work, i.e., the
information contained in items one through four of each document,
is mostly identical. Compare Docket No. 1-2 at 6 with Docket
No. 1-5 at 3. Again, as Plaintiffs allege in their complaint, it
appears that Defendants simply copied the text from Plaintiffs’
summary sheet, made some adjustments to the font, and placed it
into their own document. The layout of the documents into subparts
“1"through “4" is also the same. The Court notes that information
contained in the header and footer of each document, i.e., the
wording of the titles and the contact information, is different.
Defendants’ work also does not define the term “spa or hot tub,” as
Plaintiffs’ summary sheet does, and it also contains instructions
for submitting an application for a hot tub or spa. Plaintiffs’
summary sheet also contains a diagram.
Defendants appear to rely on the differences between the
summary sheets and their own documents as defeating any claim of
substantial similarity. However, “no plagiarist can excuse the
wrong by showing how much of his work he did not pirate.” Sheldon
v. Metro–Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936).
“Thus, where substantial similarity is found, small changes here
and there made by the copier are unavailing. ‘It is only where the
points of dissimilarity exceed those that are similar and those
similar are — when compared to the original work — of small import
quantitatively or qualitatively that a finding of no infringement
is appropriate.’” LEGO A/S v. Best-Lock Construction Toys, Inc.,
No. 3:11-cv-01586(CSH), 2019 WL 3387330, at *22 (D. Conn. July 25,
2019) (quoting Rodgers v. Koons, 960 F.2d at 308). Plaintiffs
allege that they created the summary sheets based on information
contained in the NEC guidelines, as well as their personal
knowledge and experience. Docket No. 1 at ¶¶ 17-20. Although
Defendants did not copy every aspect of Plaintiffs’ summary sheets,
Plaintiffs allege that Defendants did copy the portion of the
sheets meant to simplify the electrical wiring requirements for
storable swimming pools, hot tubs, and spas. See id. at ¶¶ 18, 20,
22, 24, 31.
Based on the materials submitted by the parties, the Court
will not decide, at this stage of the litigation, whether
Plaintiffs’ have established copyright infringement. See Peter F.
Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57,
63 (2d Cir. 2010) (“because the question of substantial similarity
typically presents an extremely close question of fact . . .
questions of non-infringement have traditionally been reserved for

the trier of fact.”) (citation omitted); see also Hoehling v.
Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir. 1980)
(“summary judgment has traditionally been frowned upon in copyright
litigation.”). However, Plaintiffs have adequately alleged
substantial similarity. Plaintiffs allege that “[d]espite the fact
that there are countless ways to organize and express information
contained in the 2014 NEC, Defendant, Town of Ogden, through its
Supervisor, Town Board and Building Inspector/Code Enforcement
Officer, presents the information on Defendant Town’s website in
substantially the same manner as Plaintiffs’ Sheets,” and that the
“Town of Ogden . . . only . . . remove[d] Plaintiffs’ name and
address from the bottom of the Sheets and continued to publish
Plaintiffs’ copyrighted Sheets on its website.” Docket No. 1 at
¶¶ 22, 24. Plaintiffs further allege that “[u]pon review, the
materials published on Defendant’s websites are verbatim to
Plaintiffs’ Sheets, minus the diagrams and reference to Plaintiff,
and are Plaintiffs’ copyrighted summaries of the 2014 NEC.” Id. at
¶ 31. Taking the allegations in the complaint as true, as the
Court is required to do on a motion to dismiss, Plaintiffs have
adequately alleged substantial similarity between the summary
sheets and the materials posted on Defendants’ website.
Accordingly, Defendants’ motion to dismiss on this ground is
denied.
Defendants further contend that Plaintiffs’ summary sheets
were “culled, entirely, from the 2014 NEC,” and that “there is
nothing ‘protectable’ in Plaintiffs’ actions of gathering
information from the NEC, creating a document with such information
and placing its name on the top.” Id. at 10. Contrary to
Defendants’ contention, Plaintiffs’ complaint contains allegations
indicating that the summary sheets were not “culled entirely” from
the NEC. Specifically, the complaint alleges that the summary
sheets “were drafted in plain language for ease of understanding
based on Gunther’s own personal knowledge and 20-plus years in the
electrical industry.” Docket No. 1 at ¶ 20.1 Plaintiffs also
allege that they hold a valid registered copyright in the summary
sheets, and a copy of the Certificate of Registration issued by the
United States Copyright Office for Plaintiff’s “Helpful Electrical
Requirement Sheets” is attached to the complaint. See Docket No. 1
at ¶ 21, Docket No. 1-4. These two allegations speak to the
alleged original, protectable nature of Plaintiffs’ summary sheets.
Indeed, Defendants’ argument ignores that a certificate of
copyright registration “raises a rebuttable presumption that the
work in question is copyrightable, as well as original.” Van Cleef
& Arpels Logistics, S.A. v. Jewelry, 547 F. Supp. 2d 356, 362
(S.D.N.Y. 2008); see also Nicholls v. Tufenkian Import/Export
Ventures, Inc., 367 F. Supp. 2d 514, 520 (S.D.N.Y. 2005)
(“Registration creates a presumption not only that a copyright is
valid, but also that the work is original.”).

1
Attached to Plaintiffs’ response papers is an Affirmation by Mr. Gunther,
which also contains information relevant to the original nature of the summary
sheets. See Docket No. 12 at ¶¶ 15, 16 (Gunther “carefully prepared the Sheets
in plain language for ease of understanding so that they could be effectively
utilized by readers, laypeople and professionals alike,” and “[t]he Sheets
consist of [Gunther’s] independent collection and interpretation of the relevant
NEC provisions, [his] independent selection and inclusion of what [he] believed
was pertinent information from the NEC provisions, and [his] independent
Defendants’ own belief that “[c]learly, Plaintiffs cannot
claim copyright protection for the information, requirements,
standards, and recommendations contained in the NEC” (see Docket
No. 8-1 at 10), is not sufficient to rebut this presumption of
validity. Plaintiffs do not claim copyright protection in the
information contained in the NEC; rather, they claim protection in
the summary sheets, which is a compilation of information from the
NEC, as well as Plaintiffs’ own knowledge and experience. Taking
the allegations contained in the complaint as true, as the Court is
required to do on a motion to dismiss, Plaintiffs have adequately
alleged that their summary sheets are protectable under the
Copyright Act.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss for
failure to state a claim (Docket No. 8) is denied. Defendants are
directed to file an answer to the complaint within twenty days of
the date of this Decision and Order.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca

MICHAEL A. TELESCA
United States District Judge
Dated: November 19, 2019
Rochester, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361488. Public record. Not legal advice.