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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN
DIVISION
| THE TAUBMAN COMPANY |
| LIMITED PARTNERSHIP, |
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| Plaintiff, | |
| | Civil Action No. 01-72987 |
| v. |
| | District Judge Zatkoff |
| WEBFEATS and HENRY MISHKOFF, |
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Magistrate Judge Komives |
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| Defendants. | |
ANSWERS AND RESPONSES
TO PLAINTIFF'S INTERROGATORIES
AND REQUESTS TO PRODUCE
INTERROGATORY NO. 1
For the past two years, give the annual gross dollar sales of products and/or services provided by
Defendants which are promoted on the Internet, or which use any of Defendants' websites.
ANSWER
Objection because the interrogatory is overbroad. The requested annual gross dollar sales are not
relevant to the claim or defense of any parties to the copyright claim in this case, which is the only
matter that remains open for discovery; nor is the requested information reasonably calculated to lead
to the discovery of admissible evidence. In furtherance of its claim for damages based on Mishkoff's
gross profits attributable to the alleged infringement, plaintiff is entitled only to obtain
information about the gross revenues attributable to or produced by the infringement; to the extent
that the interrogatory seeks such information, Mishkoff answers that there are no such gross
revenues.
[Note: As previously shown in this case, WebFeats is Mishkoff's DBA and has no separate existence.
References to Mishkoff include WebFeats.]
INTERROGATORY NO. 2
If you contend Plaintiff's copyright is invalid, identify and describe all facts and documents
which support your claim.
ANSWER
Mishkoff has not yet decided whether he contends that plaintiff's copyright is invalid. Mishkoff
notes that plaintiff appears to have registered the copyright in two graphics that were authored by
another, based on the claim that plaintiff had received an assignment, but the assignment that was
provided was not made until after the copyright was registered. Plaintiff claims ownership of the
graphics based on an assignment from JPRA and Associates, which claims, in turn, that the graphics
were prepared for JPRA as a work for hire; however, no evidence supporting the claim of work for hire
has been produced. In addition, the document provided as the claimed assignment gives a different name
than the name of the artwork that was registered, and we have received no disclosures showing that the
artwork that was registered is, in fact, the same as that which was assigned. Moreover, the great
variety of artwork and other materials posted on plaintiff's web sites pertaining to The Shops at
Willow Bend creates a real possibility that the assigned work is not the same as the registered work.
The documents establishing these facts are the copyright registration attached to the complaint, the
assignment provided in response to discovery requests, plaintiff's responses to the written discovery
requests, and materials printed from plaintiff's web sites.
INTERROGATORY NO. 3
If you contend that Defendants' actions in downloading the work from Plaintiff's website and
copying onto Defendants' site do not constitute copyright infringement, identify and describe all
facts and documents which support your position.
ANSWER
Subject to the defense of fair use and to the possible defense that plaintiff did not own the
copyright, defendant acknowledges that he committed an infringement.
INTERROGATORY NO. 4
Identify all persons who cooperated with you in copying/downloading the allegedly copied
works.
ANSWER
Nobody.
INTERROGATORY NO. 5
Have you ever copied/downloaded any other works which you believe to be from
Plaintiff/its agents?
ANSWER
Yes.
INTERROGATORY NO. 6
Have you incorporated any copied works of Plaintiff/its agents in any work or medium other than
your website?
ANSWER
No, other than matters published in connection with this litigation.
INTERROGATORY NO. 7
Identify and describe what facts and documents you are aware of to support any claim of fair use
you claim.
ANSWER
A complete answer cannot yet be provided because plaintiff has not responded to discovery, but the
following is a summary of the facts and documents on which the defense of fair use may be based.
The two graphics that Mishkoff copied are part of a significantly larger body of work that was
prepared for Taubman and used by Taubman to publicize its shopping malls (including but not limited to
The Shops at Willow Bend). Part of this body of work are the web sites that Taubman has posted, but it
is believed that there are additional materials; these have been requested in discovery and will be
furnished by Mishkoff when they are obtained. In disseminating these materials, it is believed that
Taubman explicitly or implicitly encouraged the recipients to copy the materials and disseminate them
further.
The graphics do not represent a creative work in the sense that they are intended to be admired for
their appearance or design. Their function is strictly utilitarian, as what purports to be a factual
portrayal of the intended appearance of the interior of the shopping mall. Mishkoff's use of the
graphics was thus entirely consistent with the purpose for which they were created for Taubman and
used by Taubman.
And, so far as is known, Taubman did not have any market for the graphics, and the graphics had no
value except insofar as they might inform their viewers about the desirable qualities of the mall.
Mishkoff's use thus did not have any adverse impact on the market for or the value of the works; if
anything, his use enhanced that value.
Mishkoff's use was entirely non-commercial – he received no income and no revenues from the
use of the graphics, either directly or indirectly. His purpose in using the graphics was to express
his admiration for and to publicize what promised to be a nice new neighborhood amenity, and in this
regard his use of the graphics was similar to other web sites that he maintained without any
remuneration pertaining to other business entities in the Dallas area. Not only did he not receive any
revenue or other things of value from the existence of the web site on which the graphics were
displayed, but he has not acquired any clients through either that web site or the WebFeats web site
or any other web site during the period in question. Any new clients he acquired were either related
to existing clients or referred by existing clients.
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