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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, | |
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| | 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. | |
OPPOSITION TO PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
Plaintiff Taubman has moved for summary judgment on its claim that defendant Henry Mishkoff
infringed its copyright in two graphics that he obtained from Taubman's own web site, one a drawing
depicting the grand court of The Shops at Willow Bend, and the other a map of the layout of The
Shops at Willow Bend. The motion for summary judgment is not based on even a single affidavit -
rather, Taubman rests entirely on the allegations in its complaint; on the registration document
that asserts that certain graphics were originally owned by an entity called "JPRA and Associates,"
although they were authored by an unidentified individual as a work for hire, and that JPRA and
Associates had allegedly assigned the work to Taubman before the registration document was executed
on February 20, 2002; on the two graphics themselves, which are, assertedly, the graphics that were
assigned and registered; and on excerpts from Mishkoff's responses to discovery and deposition
testimony acknowledging that Mishkoff copied the works from Taubman's web site.
The principal reason why summary judgment is not warranted is that Mishkoff needs discovery in
order to respond to the motion. In the alternative, summary judgment should be denied because
defendant has raised sufficient issues of material fact with respect to liability and because the
facts establish as a matter of law that plaintiff cannot obtain any remedy for the infringement that
it alleges.
Under Rule 56(f) of the Federal Rules of Civil Procedure, summary judgment cannot be granted
where the party opposing the motion can show that he needs discovery in order to establish his
defenses or to pierce the plaintiff's allegations. Rule 56 requires discovery "where the
nonmoving party has not had the opportunity to discover information that is essential to its
opposition." Metabolife Int'l v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001), quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 250 n.5 (1986); Vance by and through Hammons v.
United States, 90 F.3d 1145, 1148-1149 (6th Cir. 1996).
As shown in the accompanying affidavit of Henry Mishkoff, Mishkoff has not had the opportunity to
obtain the discovery that he needs to oppose the motion for summary judgment. The Court granted
leave to amend the complaint by order dated April 4, 2002. Within days of receipt of that order,
Mishkoff sent Taubman a set of interrogatories and requests to produce documents designed to support
his defenses in those cases. However, rather than provide honest answers to these discovery
requests, plaintiff has stonewalled, presenting relevance objections to almost every one of the
discovery requests, and responding to key requests with pleas of ignorance. Taubman waited until the
very last moment to provide those responses, recognizing that Mishkoff would be unable to move to
compel discovery and obtain responses, and to take depositions based on such responses, until after
the deadline for filing dispositive motions. Mishkoff has filed a motion to compel discovery, and
that motion is pending decision before Magistrate Judge Komives. At the same time, Mishkoff moved to
defer the trial on the merits (on the trademark claims as well as the copyright claims), and to
reset the discovery schedule to permit the completion of necessary discovery along with new
deadlines for dispositive motions. That motion has been denied pending a ruling on the discovery
motion.
Mishkoff has sought discovery on two principal issues: (1) whether Taubman is the valid owner of
the copyright in the two items even though they were authored by another company, JPRA and
Associates, allegedly as a work for hire, and (2) whether Mishkoff made a fair use of the items on
his "fan" web site about The Shops at Willow Bend. Accordingly, Mishkoff posed interrogatories and
requests to produce that asked about the documentary and other bases for the assertion of ownership
of the copyright, and about the various statutory factors governing the defense of fair use
established by Congress in section 107 of the Copyright Act.
[Note: Defendants have moved to dismiss all claims against WebFeats under Rule 17 on the ground
that WebFeats is not a separate suable entity. Because Taubman has not taken issue with that aspect
of the motion, this memorandum refers to Mishkoff as the defendant, in the singular tense. The
motion to dismiss also argues that the Court lacks personal jurisdiction of Count IV. If that motion
is granted, of course, this motion for summary judgment would have to be denied as well. However,
this memorandum does not address separately the issue of personal jurisdiction.]
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