Full opinion text
MEMORANDUM YOUNG, Chief Judge. John G. Danielson, Inc. (“Danielson”), an architectural firm located in Lexington, Massachusetts, brings this action against Winchester-Conant Properties, Inc. (“Winehester-Conant”) and The Willows at Winchester, LLC (‘Willows LLC”) (collectively “Winchester-Willows”), for copyright infringement under the Copyright Act, 17 U.S.C. § 101 et seq. (Count I), conversion (Count II), false designation or description of origin under the Lanham Act, 15 U.S.C. § 1125(a) (Count III), and unfair and deceptive trade practices under Chapter 93A of the Massachusetts General Laws (Count IV)- Danielson’s claims arise out of Winchester-Willows’s alleged use, without Danielson’s permission, of architectural plans drafted by or under the supervision of Danielson for a condominium project called the Willows at Winchester in Winchester, Massachusetts. Winchester-Willows moved for summary judgment on all counts. Danielson cross-moved for partial summary judgment on the copyright infringement, false designation or description of origin, and 93A claims. (Danielson would leave for trial the conversion claim and the issue of damages.) On November 14, 2001, the parties argued these motions for summary judgment, and the Court took the motions under advisement. On February 8, 2002, in the interest of allowing the parties adequately to prepare for trial, the Court announced its conclusions of law: 1. Architectural drawings are amenable to copyright protection under the law as it existed at the time the drawings at issue in this case were created. 2. The particular architectural drawings at issue here are sufficiently original to warrant copyright protection. 3. Danielson has standing to pursue this case as the owner of the copyright interests embedded in the drawings. The June 29, 1987 contract between Danielson and Tellali-an Associates (“Tellalian”) effected a transfer of copyright from the author of the drawings, Tellalian, to Danielson. Such a transfer satisfies the statute of frauds provision of 17 U.S.C. § 204. Even if it did not, the absence of a dispute between Tellali-an and Danielson as to Danielson’s ownership of the copyright interests in the drawings bars Winchester-Willows from attacking the validity of the transfer. 4. There is no genuine dispute as to the fact that Winchester-Willows infringed Danielson’s copyright. Winchester-Willows do not deny that they had access to the drawings at issue here. A comparison of the copyrighted drawings with the allegedly infringing drawings shows that no reasonable trier of fact could find other than that the allegedly infringing drawings are substantially similar to the copyrighted drawings. 5. The fact that Medford Engineering (“Medford”), and not Winchester-Willows, did the actual copying of the copyrighted drawings does not excuse Winchester-Willows from liability for infringement. 6. As matter of law, Danielson did not publish the drawings at issue here. 7. As matter of law, Danielson did not grant an implied nonexclusive license to Winchester-Willows. 8. The doctrine of merger does not apply to this case. 9. As matter of law, Danielson did not abandon its copyright interests in the drawings at issue here. 10. A genuine issue of material fact remains as to whether Danielson knew, or in the exercise of reasonable diligence should have known, that Winchester-Willows infringed its copyright more than three years before it lodged its complaint with this Court. If Danielson should have known that Winchester-Willows infringed its copyright more than three years before filing suit, the copyright claim is barred by the three-year statute of limitations for copyright infringement claims under the Copyright Act, 17 U.S.C. § 507(b). 11. If Danielson’s claim is not barred by the statute of limitations, Dan-ielson may proceed to prove damages, including actual damages and any profits reaped by Winchester-Willows attributable to the infringement. Under 17 U.S.C. § 504(b), as to profits, Danielson need only show gross profits gained by Winchester-Willows from the project. Winchester-Willows may then show deductible expenses, as well as elements of profit attributable to factors other than the copyrighted work. 12. Danielson’s conversion claim is not preempted by the Copyright Act. Danielson may attempt to show at trial that it suffered harm as a result 'of Winehester-Willows’s wrongful physical possession of the drawings at issue here. 13. Danielson’s Chapter 93A claim is preempted by the Copyright Act. 14. Danielson’s Lanham Act claim survives summary judgment. Order of Feb. 8, 2002 [Docket No. 56]. Taking the issues in slightly different order, this Memorandum explains the reasons for the Court’s judgment. The Court begins with an exposition of those facts that are critical to the resolution of these motions. I. Background On June 29, 1987, Danielson executed a contract with Louis Farese (“Farese”), trustee of Conant Road Realty Trust (“Co-nant Realty Trust”), to perform architectural services for a proposed residential development comprising 70 condominium units called “The Willows at Winchester” (the “Project”) located at 228 Cross Street and 7 Conant Road in Winchester, Massachusetts (the “Property”). Edmond Dan-ielson Aff. ¶ 3-4 [Docket No. 27]. At the time, Conant Realty Trust owned the Property on which the Project was to be built. Id. ¶ 4. By the time the contract between Farese and Danielson was executed, Danielson had already completed seven drawings for the Project. Id. ¶¶ 6-7. These drawings were to be submitted to the Town of Winchester (“Town”) Planning Board and Board of Appeals so that Co-nant Realty Trust could obtain a zoning variance permitting it to construct residential units in an area zoned for industrial use, and so that it could obtain a special permit to build the Project. These seven drawings became known as the “Covenant Drawings.” Four of the Covenant Drawings, labeled SP-1, SP-2, SP-3, and A-3, are at issue in this litigation. Id. ¶ 7 & Exs. B (drawing SP-1), C (drawing SP-2), D (drawing SP-3), E (drawing A-3). Dan-ielson concedes that three of the seven original drawings, labeled A-l, A-2, and EX-1, are not at issue in this litigation. Id. ¶ 7. Three of the Covenant Drawings at issue, SP-1, SP-2, and SP-3, bear Daniel-son’s logo, as well as the logo of Tellalian Associates, Architects. & Planners (“Tellali-an”), a firm that assisted Danielson in the preparation of the design documents. Id. ¶ 8. The fourth drawing at issue, A-3, does not bear the logo of Danielson or Tellalian Associates, id., but instead appears to have been authored by Peter Whitman, an independent contractor who worked with Dan-ielson and Tellalian, Defs.’ Opp’n ¶ 2 [Docket No. 31]. None of the Covenant Drawings bears a notice of copyright. Defs.’ Facts ¶ 4 [Docket No. 21]. The contract between Danielson and Farese is a 1977 version of a standard form American Institute of Architects (“AIA”) agreement between the owner, Conant Realty Trust, and the architect, Danielson. Several of its provisions are relevant here. The contract provides that Danielson “shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components.” Edmond Danielson Aff.Ex. A, art. 1.1.4. Danielson was contractually required to follow up these schematic drawings with more detailed design development drawings, id. art. 1.2.1, and then construction documents, id. art. 1.3.1. Danielson was also required to assist Conant Realty Trust in filing such documents with the relevant government agencies, id. arts. 1.3.4 & 15, and was to supervise construction of the project, id. art. 1.5. The contract also provided that Daniel-son owned the drawings and specifications rendered in connection with the project, id. art. 8.1. While Conant Realty Trust was entitled to retain copies of the drawings, the contract provided that “[t]he Drawings and Specifications shall not be used by the Owner on other projects, for additions to this Project, or for completion of this Project by others provided the Architect is not in default under this Agreement, except by agreement in writing and with appropriate compensation to the Architect.” Id. The contract also stated that “[submission or distribution to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of the Architect’s rights.” Id. art. 8.2. Conant Realty Trust submitted the Covenant Drawings to the Town Planning Board for permission to construct the residential development sometime in June 1987. Edmond Danielson Aff. ¶ 13. On November 4, 1987, the Town Board of Appeals granted a special permit to construct the development in accordance with a , Restrictive Covenant (the “Restrictive Covenant”) that was subsequently executed by Conant Realty Trust and the Town Planning Board. Id.; Defs.’ Facts ¶ 8. Among other things, the Restrictive Covenant provided that it was to run with the property as binding on all successors in interest for 30 years, Edmond Danielson Aff.Ex. J, §§ IV.B, IV.C, that construction was to proceed “substantially as shown on the Project Plans,” id. § IV.E, with “Project Plans” defined to mean the original Covenant Drawings, id. § I & Ex. B, that any modification of the Project Plans was to be submitted to the Town Building Inspector for approval, id. § IV.F, and that the Covenant could not be amended except by a two-thirds vote of a Town Meeting, id. § IV.J. In 1987 and 1988, Danielson prepared a more elaborate set of drawings for the proposed development; this set comprised 87 drawings in all. Edmond Danielson Aff. ¶¶ 15-16. These drawings, separate from the Covenant Drawings, became known as the “Project Drawings.” Four of the 87 Project Drawings, labeled C-l, C-3, C-4, and L-l, are at issue in this litigation. Id. ¶ 17 & Exs. K (drawing C-1), L (drawing C-3), M (drawing C-4), N (drawing L-l). These drawings all bear the logos of Danielson and Tellalian Associates; two of the drawings (C-3 and C-4) also bear the logo of Medford Engineering (“Medford”), another of Danielson’s sub-consultants during the project, id. Exs. L, M. As with the Covenant Drawings, none of the Project Drawings bears a copyright notice. Defs.’ Facts ¶ 29. Those of the Covenant Drawings and Project Drawings that are at issue in this litigation have become known as the “Claim Drawings.” With the exception of Covenant Drawing A-3, all of the Claim Drawings are roughly similar to one another. They depict, with varying degrees of detail, the footprints, configuration and location of five buildings that were to be built on the Property, as well as the location of parking, pedestrian walkways, and open spaces. Covenant Drawing A-3, in contrast, is a three-dimensional perspective drawing of what some of the condominiums were to look like. By mid-1988, Conant Realty Trust encountered financial difficulties, and was unable to complete payment to Danielson for services rendered. Danielson’s outstanding invoices in 1988 totaled $226,243.04. Edmond Danielson Aff.Ex. 0. Danielson was never reimbursed for that outstanding balance. Consequently, the project was abandoned for several years. In 1994, Winchester-Conant purchased the Property on which the original Project was to be carried out, and acquired the Claim Drawings. Defs.’ Facts ¶ 18; Edmond Danielson Aff. ¶ 23. In April 1994, Winchester-Willows approached Edmond Danielson, principal of Danielson, to discuss possibilities to develop the Property. Defs.’ Facts ¶ 19; Edmond Danielson Aff. ¶ 24. Edmond Danielson said he would be interested. Edmond Danielson Aff. ¶ 24; Defs.’ Facts ¶ 19. Danielson accordingly created a new plan for developing the property into 80 apartment units intended for elderly residents. Edmond Danielson Aff. ¶ 25. Winchester-Willows rejected Danielson’s new plan, however, and the parties had no further contact for several years. Id.; Defs.’ Facts ¶ 21. In 1995, Winchester-Willows attempted to obtain Town approval for alternative plans to develop the property, but were unsuccessful. Defs.’ Facts ¶ 22. The stated reason for the Town’s rejection of Winchester-Willows’s alternative proposals was that such proposals were not in conformity with the plans incorporated by reference into the Restrictive Covenant — the Covenant Drawings. Edmond Danielson Aff. Ex. S (Minutes of the Town Planning Board, dated July 31, 1995, rejecting Winchester-Conant’s proposals to develop the Property on the ground that it had rejected such proposals at the previous two meetings, because “[a]ny development on this property must be in accordance with the existing Covenant endorsed by the Planning Board on February 8, 1988”). Sometime in 1995, then, Winchester-Willows abandoned its plan to proceed with an alternative design, and decided to build in accordance with the Restrictive Covenant. Defs.’ Facts ¶ 22. That same year, Winchester-Willows applied to the Town Planning Board for permission to build on the Property using plans that conformed to the Covenant Drawings. On December 18, 1995, the Town Board of Appeals granted Winchester-Willows permission to begin building the new project on the condition that construction take place “in conformity with the ... plans ... submitted to the Board.” Edmond Daniel-son Aff. Ex. Y, at 3 (decision of Town Board of Appeals granting Winchester-Conant’s request for a special permit). The “plans” submitted to the Board were described as follows: Building Location Plan by Medford Engineering & Survey ... dated October 5, 1987, revised through July 11, 1995(C-1); Grading Plan by Medford Engineering, dated October 13, 1987, revised through July 11,1995(C-3); Utility Plan by Medford Engineering, dated December 1, 1987, revised through July 11, 1995(C-4); Site Landscape Plan, dated July 13, 1995, revised through September 7, 1995 by Meehan Architects (L-l). Id. at 3-4. Danielson alleges that Winchester-Willows, with assistance from Medford (which worked on both the original Project and Winehester-Willows’s project), took Dan-ielson’s Project Drawings C-l, C-3, C-4, and L-l, removed the logos of Danielson and Tellalian by erasing them or cutting them out, and presented these drawings to the Town as property of Medford and Winchester-Willows. Edmond Danielson Aff. ¶ 31. Winchester-Willows acknowledge that “Medford made changes to the Claim Drawings when it performed work for Co-nant” and that “Meford cut out the Daniel-son and Tellalian logos from several of the Claim Drawings,” but insist that they were “not aware that Medford cut them out.” Def.’s Opp’n ¶ 9. Winchester-Willows do not deny, however, that they used the drawings altered by Medford in applying for Town approval to resuscitate the Project. According to Danielson, the next contact between Danielson and Winchester-Willows came in August 1997, when an associate architect of Danielson who had been the lead architect on the 1987-88 project, George Elanjian, drove by the property and observed a sign advertising “The Willows at Winchester,” Edmond Danielson Aff.Exs. P, Q, that closely resembled Covenant Drawing A-3, id. Ex. E. This led Elanjian to drive onto the property and obtain from the on-site construction office a brochure of the current development project. The brochure contained a layout design that appeared closely to match the layout design originally conceived in 1987-88 by Danielson. After raising its concerns with Winchester-Willows and attempting unsuccessfully to resolve the dispute short of litigation, Danielson filed suit in this Court on May 23, 2000. On September 30, 2001, Winchester-Willows filed their motion for summary judgment. In that motion, they contend that even if they copied work that belonged to Danielson, Danielson is not entitled to copyright protection because: (a) Danielson published the Covenant and Project Drawings throughout the process of applying for the special permit in 1987; (b) Danielson granted an implied license to copy the work through its conduct in making the drawings widely available to subcontractors, Town planning officials, and members of the community; (c) the ideas at issue here are susceptible of only one form of expression due to the Restrictive Covenant, and thus are not protected by copyright law under the doctrine of merger; and (d) Danielson has abandoned any entitlement to copyright protection. As to Danielson’s state law claims, Winchester-Willows argue that they are preempted by the Copyright Act, which provides the underlying basis for recovery on either of the state law claims. Winchester-Willows also assert that the three-year statute of limitations for copyright infringement has expired, and that Danielson should be barred from bringing suit under the equitable doctrine of laches. Finally, Winchester-Willows assert that Danielson has no standing to sue, because Tellalian, and not Danielson, owns the copyrights to the disputed drawings because Tellalian created the drawings. In short, Winchester-Willows do not deny that they possessed and used Danielson’s drawings in obtaining permission to build the Willows at Winchester condominium development, e.g., Summ.J. Hr’g Tr. at 8-9 [Docket No. 44], but instead interpose a number of defenses that impugn the validity of Danielson’s copyright interests in the Claim Drawings. Danielson responds with a summary judgment motion of its own, in which it contends that every claim except conversion may be adjudicated on summary judgment in favor of Danielson. Danielson also asserts that the issue of damages should be left for trial, as the parties disagree over the portion of the $19,500,000 in gross receipts obtained by Winchester-Willows from the sale of the condominium units built on the Property, Edmond Dan-ielson Aff. ¶ 47 & Ex. FF, that should be awarded to Danielson in the event Winchester-Willows are found liable. According to Danielson, more factual development is necessary in order to resolve this issue. II. Discussion Most of the facts outlined above and discussed below are not in dispute. As to those facts that are disputed, because all parties have moved for summary judgment, the Court will isolate those facts that provide the basis for any particular argument in support of summary judgment, place the gloss most favorable to the nonmoving party on those facts, and determine whether the dispute with respect to that argument is genuine. Fed.R.Civ.P. 56(c). A dispute is genuine only if' a reasonable factfinder might find for the non-moving party given the facts in the light most favorable to the nonmovant. E.g., Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001). The parties sensibly devote most of their time and energy to debating the merits of Danielson’s claim for copyright infringement. The Court will do the same. The Court will then discuss, briefly, Danielson’s Lanham Act claim, as well as its staté law claims. A. Copyright Infringement The elements of a claim of copyright infringement are simple and familiar. The plaintiff in a copyright infringement action must show “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); accord Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 60 (1st Cir.2000). To prevail at summary judgment on an infringement claim, the plaintiff must show that no reasonable trier of fact could find other than that these elements have been met, a difficult but not impossible task. See Segrets, 207 F.3d at 62 (noting that summary judgment for the plaintiff in an infringement action is “unusual,” but affirming the district court’s grant of summary judgment on infringement). The Court asks first whether Dan-ielson owned a valid copyright in the Claim Drawings, which the Court answers with separate discussions of whether the Claim Drawings are copyrightable and, if so, whether Danielson owned the copyright interests to the Drawings. The court then considers whether Winchester-Willows copied any of Danielson’s copyrightable work. 1. Architectural Plans and Copyright Protection The parties do not genuinely dispute that the architectural drawings at issue in this case are subject to copyright protection. Although the Copyright Act of 1976 (the “Act”), which governed Daniel-son’s rights at the time the Claim Drawings were created, did not explicitly protect architectural drawings, courts have understood the Act to protect such drawings under the Act’s protection of “pictorial, graphic and sculptural works,” 17 U.S.C. § 102(a)(5) (1982), which was defined to include “technical drawings, diagrams, and models,” id. § 101. E.g., Robert R. Jones Assocs., Inc. v. Nino Homes, 858 F.2d 274, 278 (6th Cir.1988). This interpretation was consistent with, and followed from, clear- congressional intent that such architectural plans be protected by the Act. E.g., H.R.Rep. No. 94-1476, at 55 (1976) (“An architect’s plans and drawings would, of course, be protected by copyright....”), reprinted in 8 Melville B. Nimmer & David Nimmer, Nimmer on Copyright app. 4, at 20 (2001). In 1988, the Act was amended expressly to include within its ambit architectural plans. Berne Convention Implementation Act of 1988, Pub.L. No. 100-568, § 4(a)(1)(A), 102 Stat. 2853, 2854. This amendment was understood by Congress merely to codify the pre-existing protection afforded to architectural plans. E.g., S.Rep. No. 100-352, at 8, 39 (1988), reprinted in 9 Nimmer & Nimmer, supra, app. 35, at 11, 55. At all times relevant to this dispute, therefore, the drawings at issue here were amenable to copyright protection. Winchester-Willows argue that the particular drawings at issue here are insufficiently original to warrant copyright protection. Defs.’ Opp’n at 6-7. Winchester-Willows wisely devote most of their time and paper to other arguments, given the low threshold of originality required to establish copyrightable work. As the Supreme Court observed in Feist: [T]he requisite level of creativity [for copyright protection] is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. 499 U.S. at 345, 111 S.Ct. 1282 (citation and internal quotation marks omitted). Winchester-Willows’s brief assault on the originality of Danielson’s drawings targets individual elements of the plans — the rectangular clubhouse, the crescent shape of two of the buildings, the placement of pathways — but ignores the gestalt of Dan-ielson’s work. Even if any of these elements alone is not subject to copyright protection, Danielson’s choices regarding the shape, arrangement, and location of the buildings, the design of the open space, the location of parking and sidewalks, as well as Danielson’s combination of these individual design elements, amounted to a unique approach to converting the Property into a livable space that meets the low threshold of originality required under Feist. See generally Edmond Danielson Aff.Exs. B-D, K-N (depicting Claim Drawings SP-1, SP-2, SP-3, C-l, C-3, C-4, and L-l, respectively). No reasonable trier of fact, properly instructed in the law on this point, could find otherwise. The Claim Drawings are sufficiently original as matter of law to warrant protection under the Act. 2. Ownership of Copyright Interests — Standing The originality of the Claim Drawings is of no use to Danielson, however, if Danielson does not own the copyright interests embedded within them, as Winchester-Willows suggest. According to Winchester-Willows, Tellalian, not Daniel-son, authored the drawings at issue here. Because the author of a work is considered the owner of any copyright attached to the work, and because only the owner of a copyright may sue to seek redress for infringement of the copyright, Winchester-Willows contend that Danielson lacks standing to litigate this case. Defs.’ Mem. at 14-15 [Docket No. 20]. Winchester-Willows acknowledge that an author legally may transfer copyrights in a work to another party, but contend that no such transfer took place in this case. Id. The Act provides that only the “legal or beneficial owner” of a copyright is entitled to sue when the copyright is infringed. 17 U.S.C. § 501(b). Legal ownership of copyright in a work “vests initially in the author or authors of the work.” Id. § 201(a). Danielson concedes that Tellalian, the architectural “subconsultant,” was the entity that “physically put pen to paper” to create the drawings, PL’s Mem. at 16 [Docket No. 26], which means that Tellalian is the author of the plans, and the entity in which copyright initially vested. An author of a work subject to copyright protection may, however, transfer copyright held in the work. Id. § 201(d)(1). Such a transfer must be effectuated by operation of law, or in writing through an instrument of conveyance or a note or memorandum of transfer. Id. § 204(a). At issue in this ease is whether Tellalian executed a written instrument of conveyance or a note or memorandum of transfer of copyright to Danielson that would make Danielson the legal owner of the copyright interests embedded within the Claim Drawings. In a contract dated June 29, 1987, and signed by Donald Tellalian, Danielson and Tellalian agreed that “the Work, Drawings, and Specifications prepared by [Tel-lalian] as instruments of service are and shall be the property of [Danielson].” Edmond Danielson Aff. Ex. F, art. 8.1. The contract further provides that “[submission or distribution to meet official regulatory requirements ... is not to be construed as publication in derogation of [Danielson’s] or [Tellalian’s] rights.” Id. art. 8.2. To determine whether this contract suffices as an instrument of conveyance of Tellalian’s copyright interests in the drawings at issue here, the Court reads the contract provisions recited above using the following principles of copyright law and contract construction. First, transfer of ownership of the material object protected by copyright law — in this case, the Claim Drawings — does not, by itself, amount to transfer of copyright ownership. 17 U.S.C. § 202. Second, “even though a written instrument may lack the terms ‘transfer’ and ‘copyright,’ it still may suffice to evidence [the author’s and the transferee’s] mutual intent to transfer the copyright interest.” 3 Nimmer & Nim-mer, supra, § 10.03[A][2], Third, “in construing a written agreement, courts must consider every phrase and clause in light of all the others in the instrument, ‘which must be considered as a workable and harmonious means for carrying out and effectuating the intent of the parties.’ ” SAPC, Inc. v. Lotus Dev. Corp., 921 F.2d 360, 363 (1st Cir.1990) (quoting J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795, 494 N.E.2d 374 (1986)). Here, the agreement between Danielson and Tellalian does not explicitly mention the word copyright. It does, however, state unequivocally that Danielson owns the drawings that are the subject of the agreement and that Tellalian is merely entitled to retain copies of the drawings and to reproduce them for the purpose of working on the project. Edmond Daniel-son Aff.Ex. F, art. 8.1. Were this all the contract said, it might not be enough to effectuate a transfer of copyright. Article 8.2 of the agreement, however, mentions submission of documents to regulatory authorities, stating that such submission shall not amount to “publication in derogation of [Danielson’s] rights,” id. art. 8.2, language borrowed from copyright-speak. See, e.g., infra Part II.A.4.a (discussing publication). These two provisions, which are the only portions of the integrated agreement between the parties that address ownership and use of the drawings, suggest that the parties intended that Danielson own not only the physical documents, but also any copyright interests embodied in the documents. While the provisions are not completely free from ambiguity (Danielson would be well advised to place the word “copyright” in future agreements of this kind to reduce such ambiguity), the combination of the sweeping language of ownership granted to Danielson along with the reference to publication suggests that Danielson became the owner not only of the physical plans, but also of the copyrights embedded within them as a result of the June 29, 1987 contract between Danielson and Tel-lalian. Winchester-Willows downplay the importance of the original agreement between Danielson and Tellalian by arguing that because the original Covenant Drawings were completed before the execution of the agreement between Danielson and Tellalian, the agreement does not cover those Drawings. Def.’s Mem. at 14-15. The Court finds this argument unpersuasive. Article 1 of the agreement between Danielson and Tellalian provides that Tel-lalian was required to provide “Schematic Design, Design Development, and Construction Documents” to Danielson, which Danielson was to provide to Conant Realty Trust. Edmond Danielson Aff.Ex. F, art. 1.1. These three phases of construction outlined in the Danielson-Tellalian agreement exactly correspond with three of the phases of construction Danielson was obligated to supervise under its agreement with Conant Realty Trust. The Covenant Drawings were the first set of drawings to be completed by Tellalian for Danielson in order that Danielson might satisfy the first phase of its obligation to Conant Realty Trust. These Drawings later were to be enhanced in the form of more detailed “Project Drawings,” and construction plans at the last stage. The Danielson-Tellalian agreement, particularly when viewed in light of Daniel-son’s contractual obligations to Conant Realty Trust, which the Danielson-Tellalian agreement was executed to help effectuate, suggests that the Covenant Drawings, even though created a few days before the Danielson-Tellalian agreement was executed, were part of the first stage of a relationship that was to be governed by the agreement. Winchester-Willows cite no authority for the proposition that a contract must be executed before the subject matter of the agreement comes into being, and the Court is aware of none. What matters is that the parties executed a written agreement with the intent to settle the legal status of documents that were created just before, and that were enhanced after, the formal execution of the Daniel-son-Tellalian agreement on June 29, 1987. Even if the words transferring copyright interests from Tellalian to Danielson were ambiguous, which the Court rejects, it is undisputed that Danielson and Tellalian agree that Danielson owns the copyright interests embedded in the drawings at issue in this case. On January 19, 1999, Donald Tellalian sent Edmond Danielson a letter in which he confirmed that Danielson “retains full copyright to [The Willows of Winchester project].” Edmond Danielson Aff.Ex. G (emphasis added). Later, on February 7, 2001, Donald Tellalian signed a statement affirming that Tellalian assigned any and all interests it once had in the Drawings at issue here to Danielson. Id. Ex. H. What these documents make clear is that, as between the original author (Tellalian) and the putative transferee (Danielson) of the copyright interests, there is no contest of ownership. What the law makes clear is that, when an author and a transferee do not dispute the ownership of a copyright interest, a third party may not raise the issue of copyright ownership as a defense to a claim that it infringed the copyright. E.g., Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 36 (2d Cir.1982) (noting that, in eases “in which the copyright holder appears to have no dispute with its licensee [over ownership of the copyright interest], it would be anomalous to permit a third party infringer to invoke [17 U.S.C. § 204(a)] against the licensee”), superseded by rule on other grounds as stated in Weissmann v. Freeman, 868 F.2d 1313, 1322 (2d Cir.1989); accord Imperial Residential Design, Inc. v. Palms Dev. Group, Inc., 70 F.3d 96, 99 (11th Cir.1995) (“[W]here there is no dispute between the copyright owner and the transferee about the status of the copyright, it would be unusual and unwarranted to permit a third-party infringer to invoke section 204(a) to avoid suit for copyright infringement.”); Monroig v. RMM Records & Video Corp., 194 F.R.D. 388, 391 (D.P.R.2000) (holding that section 204(a) “may not be invoked by an alleged infringer as a defense to avoid suit for copyright infringement.”). The agreement between Tellalian and Danielson about Danielson’s ownership of any copyright interests in the drawings at issue here preclude Winchester-Willows from arguing that Danielson lacks standing to sue Winchester-Willows for copyright infringement. 3. Copying The question whether the defendant in an infringement action “copied” the work of the plaintiff is ordinarily' one of the most intractable problems in copyright cases. The solution requires proof that the defendant copied the protected work as a factual matter, and that the allegedly infringing reproduction is “substantially similar” to the protected work. Segrets, 207 F.3d at 60. The issue is usually one left to the collective judgment of the jury, which may make comparisons between the putatively protected and the allegedly infringing works. Surprisingly, this is not where the action is in this case. First, there is no doubt but that Winchester-Willows, through Medford, copied the Claim Drawings. Winchester-Willows acknowledges that Winchester-Conant acquired the Claim Drawings after it took title to the Property as a result of a foreclosure sale. Defs.’ Facts ¶¶ 18-19. Deposition of Robert P. Pace (“Pace Dep.”) at 33. By 1995, Winchester-Willows had met with no success developing the property except in accordance with the Restrictive Covenant, which incorporated by reference the Covenant Drawings. Defs. Facts ¶22; Edmond Danielson Aff.Ex. J § IV.E and Ex. B (Restrictive Covenant). As such, Winchester-Willows decided to build in accordance with the Restrictive Covenant, Defs.’ Facts ¶ 22, which meant utilizing the Covenant Drawings, the Drawings in which Danielson held the copyright interests. Winchester-Willows attempts to deflect the blame for the copying by arguing that Medford, not Winchester-Willows, did the physical copying of the Claim Drawings, either by cutting out or erasing Daniel-son’s and Tellalian’s logos from the Claim Drawings. Defs.’ Opp’n ¶ 9; Summ.J. Hr’g Tr. at 8-9. Even if the Court assumes that Winchester-Willows did not know that Medford copied directly from the Claim Drawings, which is a stretch, it is legally irrelevant that Medford, and not Winchester-Willows, performed the physical copying of the Claim Drawings. As the Second Circuit observed in Lipton v. Nature Co., 71 F.3d 464 (2d Cir.1995), “copying from a third source wrongfully copied from the plaintiff, without knowledge that the third source was infringing, does not absolve a defendant of liability for copyright infringement.” Id. at 471; see also 4 Nimmer & Nimmer, swpra, § 13.08 (collecting cases that support the proposition that when a defendant’s infringement is “based upon a work furnished by a third party,” the defendant’s “ignorance that such third party has wrongfully copied from the plaintiff will not immunize him from liability”). Winchester-Willows’s lone factual response to Danielson’s claim of copying — that Medford did the copying, not them — does not excuse Winchester-Willows from liability. Thus, as matter of law, Winchester-Willows copied Daniel-son’s drawings. But Danielson need also show that Winchester-Willows’s works were substantially similar to the Claim Drawings. Segrets, 207 F.3d at 60. The adage “A picture is worth a thousand words” is particularly apposite here. A comparison of the Claim Drawings with the allegedly infringing drawings reveal that they are virtually, if not entirely, identical. Compare, e.g., Edmond Danielson Aff.Ex. M (copy of Project Drawing C-4), with id. Ex. T (original of Project Drawing C-4, with the corner where Danielson’s and Tellalian’s logos originally appeared physically cut out of the drawing); id. Ex. M (copy of Project Drawing C-4), with id. Ex. W (copy of Project Drawing C^4, with Danielson’s and Tellalian’s logos removed from the copy); id. Ex. N (copy of Project Drawing L-l), with id. Ex. X (copy of Project Drawing L-l, with the logo of Meehan Architects of Meehan, New Hampshire in place of Dan-ielson’s and Tellalian’s logo); id. Ex. K (copy of Project Drawing C-l), with id. Ex. Z (copy of Project drawing “C-la,” which is apparently identical to Project Drawing C-l, except that the logo of Mee-han Architects has replaced Danielson’s and Tellalian’s logos). With respect to the Covenant Drawings, although the allegedly infringing drawings go into greater detail with respect to specific measurements, the shape, configuration, and layout of the buildings, open space, and parking remain strikingly similar. Compare id. Exs. BD (original Covenant Drawings SP-1, SP-2, and SP-3), with id. Exs. T-V (drawings depicting the Project, with Medford’s logo on them but without Danielson’s or Tellalian’s logo). The Court concludes, therefore, that the resemblance between the Claim Drawings and the drawings that Winchester-Willows used to obtain approval to build the Project, is so great that no reasonable trier of fact could fail to find that the drawings are substantially similar. The Court therefore holds, as matter of law, that Winchester-Willows infringed Danielson’s copyright interests in the Claim Drawings. 4. Winchester-Willows’s Affirmative Defenses The focus of this case is not on whether Winchester-Willows infringed Danielson’s copyright in the Claim Drawings — they did — but rather on whether Danielson has been sufficiently diligent in protecting the copyright interests it has in the Claim Drawings to be entitled to relief. Winchester-Willows raise a number of affirmative defenses which boil down to an argument that Danielson’s conduct, regardless of the nature of the work or the conduct of Winchester-Willows, ought deprive Daniel-son of any copyright protection it once had in the Claim Drawings. The Court examines each of Winchester-Willows’s defenses, mindful that Danielson is entitled to every benefit of the doubt on these defenses before summary judgment will be granted in favor of Winchester-Willows. a. Publication Winchester-Willows’s first affirmative defense is that Danielson published the Claim Drawings without a copyright notice, which suffices under the law as it existed at the time of the alleged publication to extinguish any copyright interests Danielson may have had in the drawings. Defs.’ Mem. at 2-7. Danielson responds that submission of architectural plans to developers and government agencies is only a “limited publication” that does not divest the copyright owner of its rights. Pl.’s Opp’n at 3-5. Danielson further asserts that it discharged its duty to protect its intellectual property rights by informing Conant Realty Trust in a written agreement that publication of any drawings did not extinguish Danielson’s copyright interests. Id. at 6. Under the Act as it existed at the time of the alleged publication, a notice of copyright was required to be placed on a copyrightable work at the time of publication. 17 U.S.C. § 401(a) (1982). Failure to do so resulted in invalidation of the copyright, absent one or more of three exceptions not applicable here. See id. § 405(a) (stating that “the omission of the copyright notice ... from copies ... publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if’ any of the three exceptions applies); 2 Nimmer & Nimmer, supra, § 7.14[A][1] (“The clear negative implication [of section 405(a)] is that if none of the these excusing conditions have been satisfied, then the omission of notice does invalidate the copyright.”). Danielson admits that it did not place a copyright notice on the Claim Drawings, Defs.’ Facts Ex. 5 ¶ 26 (admission by Danielson that no copyright notice was placed on the drawings), and Daniel-son does not suggest that its failure to do so is excused by any of the three exceptions to the requirement of notice found in section 405(a). Danielson is thus left to argue that it never “published” the Claim Drawings. “Publication” is defined by the Copyright Act as follows: ‘Publication’ is the distribution of copies ... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies ... 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. 17 U.S.C. § 101. At first blush, Daniel-son’s submission of the Covenant Drawings to the Town Planning Board and Board of Appeals would seem to constitute publication, as it amounts to an offer to distribute copies “to a group of persons for purposes of ... public display.” Danielson and Conant Realty Trust submitted to the Town a copy of the Covenant Drawings in anticipation of an application for a variance to develop land zoned for industrial use as a residential condominium complex. Edmond Danielson Aff. ¶¶ 6-7, 13. As was required by law, see Mass.Gen.Laws ch. 66, § 10(a), the Town made available to the public copies of the Covenant Drawings, Defs.’ Facts ¶¶ 10-11; see also Edmond Danielson Aff. ¶ 19 (admitting that Daniel-son accepted input from “Farese, Town officials, interested members of the public who attended Town meetings, and others” in developing the plans). Under these facts as applied to the statutory definition of publication, Danielson’s case against publication would appear weak. But Danielson fires back with a barrage of cases holding that submission of plans by architects to developers, subcontractors, consultants, and government authorities does not amount to publication in derogation of the architect’s rights. Pl.’s Opp’n at 3-4. In Kunycia v. Melville Realty Co., 755 F.Supp. 566 (S.D.N.Y.1990), for example, a federal district court, relying upon the definition of publication found in section 101 of the Copyright Act, concluded: Distribution of plaintiffs architectural drawings to contractors, landlords and building authorities does not constitute a publication requiring copyright notice. Plaintiffs drawings were circulated only to entities directly involved in the construction of [the project]. The distribution was restricted to those persons without whose participation the plans could not be given practical effect. Implicit in these business relationships is the understanding that such a distribution does not convey the right further to diffuse, reproduce, distribute or sell the drawings without the architect’s permission. Whether this is termed a ‘limited publication’ or no publication at all, the effect is the same: plaintiffs drawings did not pass into the public domain. Id. at 574; accord, e.g., Codespoti & Assocs., P.C. v. Bartlett, 51 F.Supp.2d 125, 128 (D.Conn.1999) (“Submitting proposed site plans to the town does not put those site plans in the public domain and deprive them of protection under the copyright law.”); Intown Enters., Inc. v. Barnes, 721 F.Supp. 1263, 1266 (N.D.Ga.1989) (“The weight of authority holds that neither the filing of architectural plans with permitting authorities nor distributing such plans to subcontractors for bidding purposes constitutes publication under the Copyright Act.”); 1 Nimmer & Nimmer, supra, § 4.10 (“Placing a work in a public file ... clearly does not constitute an act of publication.”). To follow these cases simply because they came before this case, however, would be superficial. As Oliver Wendell Holmes said: It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. Oliver Wendell Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897), reprinted in 110 Harv.L.Rev. 991, 1001 (1997). What is clear, however, is that the reasons for such a rule remain vital. In Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886 (1964), the Massachusetts Supreme Judicial Court rejected the notion that submission of architectural plans to a government body eviscerates the architect’s common law copyright claims, on the ground that “the principal objective of [the government] in compelling a filing is to ensure that the public will be protected from unsafe construction.” Id. at 362, 197 N.E.2d 886. Although the provisions for obtaining a zoning variance and a special permit set out in Chapter 40A of the Massachusetts General Laws do not appear to require an architect to submit plans in order to obtain a variance or a special permit to build, it is hard to imagine that an architect would not, at some point during the process of seeking a variance or a special permit, be asked to produce drafts of what she or he was planning to build on the land. This is particularly so with respect to a large housing development such as the one at issue here, which required Danielson and Conant Realty Trust to seek a variance permitting them to build residential units in an area zoned for industrial use. A planning board would be particularly interested in seeing plans before allowing such a radical shift in the tenor of the zoning district, to ensure that the proposed new development will be built safely and in such a way as to integrate with the local community as much as possible. See Mass.Gen.Laws ch. 40A, § 9 (permitting special permits only when the use of the property proposed by the request is “in general harmony with the general purpose and intent” of the governing zoning ordinance); id. § 10 (permitting variances only where the “permit granting authority specifically finds that,” in light of the particular nature of the property at issue, allowing a variance will relieve the variance petitioner of “substantial hardship” without imposing “substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law”). Winchester-Willows cite Certified Engineering, Inc. v. First Fidelity Bank, N.A., 849 F.Supp. 318 (D.N.J.1994), for the proposition that “the publication of the subdivision plans is much more extensive and the distribution of subdivision plans within the public domain is much more widespread than is the publication or distribution of architectural plans for a house or a store,” id. at 324, suggesting that submission of housing development plans represents divestive publication, Defs.’ Mem. at 3-4. The court in Certified Engineering suggested, as do Winchester-Willows, that the greater scope of dissemination of drawings in connection with a subdivision plan vis-a-vis a single house or building, along with the greater ease with which plans for a single house or building may be pirated vis-a-vis a site-specific subdivision plan, warrant carving out a kind of subdivision plan “exception” to the general rule that submission of architectural plans to parties connected with the construction of the structure does not constitute publication. Certified Eng’g, 849 F.Supp. at 324; Defs.’ Mem. at 3-4. The problem with this approach is that it trivializes the purposeful nature of the architect’s distribution of the plans at issue, as well as the role of those who see the documents in question. It may be true that more people will see subdivision or residential development plans than plans for a single house or commercial building, but that is because state and local law usually require municipalities to notify the community of a proposed development and solicit input. E.g., Mass.Gen.Laws ch. 40A, §§ 9, 10; id. ch. 66, § 10. In this case, those who saw the work were those who attended a Town meeting to comment on the impact that such .a new development would have on the community. The dissemination of the plans at issue here, while not necessarily compelled by the applicable state statutes or local ordinances, was certainly in furtherance of the Town’s obligation under state law to solicit input from the community and make findings regarding the desirability of allowing residential development in an area zoned for industrial use. Moreover, it is not clear, as the court in Certified Engineering suggested, that plans for a single house or commercial building are easier to pirate than “site-specific” housing development plans, and thus warrant greater copyright protection than do subdivision plans. While it is true that a subdivision plan takes account of the particular features of the land upon which it is to be built, thus perhaps making it harder to use lock, stock, and barrel elsewhere, there is no reason to suggest that subdivision plans are not also desirable targets of pirating. Within a particular town or region, a particular subdivision plan or copyrightable elements of the plan may become popular because it has achieved success in winning the approval of a local planning board, or because it has resulted in the sale of a number of housing units. If anything, there is more to be reaped from pirating a subdivision plan than there is to be gained by pirating a single house or building plan, as the profits from designing a single subdivision may be much greater than the profits from designing a single house. The arguments put forth by Winchester-Willows and the court in Certified Engineering do not provide an adequate basis upon which to depart from the rule, endorsed in the vast majority of cases and buttressed by sound public policy considerations, that an architect’s submission of plans to those involved in the development and execution of the plans does not constitute publication that divests the architect of rights under the Copyright Act. To be sure, Danielson could have done more to protect its copyright interests in the drawings at issue here, and will no doubt do more to protect its interests in the future. But the Court rejects Winchester-Willows’s suggestion that Danielson published its drawings when it pursued a variance and a special permit along with Conant Realty Trust to build the Project. b. Implied License Winchester-Willows next argues that Danielson’s conduct in allowing the Covenant Drawings to become part of the Restrictive Covenant, which was to run with the land for 30 years, amounted to an “implied nonexclusive license” that allowed “successors in title” to the property, such as Winchester-Conant and Willows LLC, to use the Claim Drawings to develop the site in compliance with the Restrictive Covenant. Defs.’ Mem. at 7-9. Otherwise, according to Winchester-Willows, Danielson would effectively be granted a 30-year monopoly over any development of the site. Id. at 8-9. There is no question that the owner of a copyright (in this case, Danielson, as a result of the contract between Danielson and the author of the plans, Tellalian), may grant a nonexclusive license to another party to use and copy an otherwise protected work. E.g., Johnson v. Jones, 149 F.3d 494, 500 (6th Cir.1998); I.A.E., Inc. v. Shaver, 74 F.3d 768, 775 (7th Cir.1996); Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 558-59 (9th Cir.1990). In contrast to an exclusive license, a nonexclusive license does not amount to a transfer of copyright ownership. See 17 U.S.C. § 101 (defining “transfer of copyright ownership” to include exclusive licenses, but not nonexclusive licenses). Therefore, a nonexclusive license is not governed by the statute of frauds provision of 17 U.S.C. § 204, and may be granted “orally, or may even be implied from conduct.” 3 Nimmer & Nimmer, supra, § 10.03[A][7]. The existence of a nonexclusive license, if granted to the defendant in an infringement action, operates as an affirmative defense to a claim of infringement. Johnson, 149 F.3d at 500; Shaver, 74 F.3d at 775; Effects, 908 F.2d at 559. There is no magic formula to determine whether the owner of a copyright has granted a nonexclusive license to the alleged infringer or others. ‘When the totality of the parties’ conduct indicates an intent to grant such permission, the result is a nonexclusive license.” 3 Nimmer & Nimmer, supra, § 10.03[A][7]. Such a nonexclusive license may also be found where the copyright owner has granted “consent, in the form of mere permission or lack of objection” to the would-be infringer. Shaver, 74 F.3d at 775. Several courts have attempted to formulate a test to determine when a nonexclusive license exists, stating that one may be implied when “(1) a person (the licensee) requests the creation of a work, (2) the creator (the licensor) makes that particular work and delivers it to the licensee who requested it, and (3) the licensor intends that the licensee-requestor copy and distribute his work.” Shaver, 74 F.3d at 776 (citing Effects, 908 F.2d at 558-59). With this guidance in mind, the Court turns to the facts of this case. Danielson (through Tellalian) originally produced the drawings at the direction of Conant Realty Trust and Farese. The drawings were created pursuant to an agreement between Danielson and Conant Realty Trust. The agreement specifically provided that the drawings produced in connection with the project “are and shall remain the property of [Danielson].” Edmond Danielson Aff.Ex. A, art. 8.1. While Conant Realty Trust and Farese were allowed to retain copies of the drawings, the agreement stated that “[t]he Drawings ... shall not be used by [Conant Realty Trust] on other projects, for additions to this Project, or for completion of this Project by others.” Id. The drawings were submitted, pursuant to the agreement between Danielson and Conant Realty Trust, to the Town Planning Board and Board of Appeals in order to obtain permission to build a residential complex in an area otherwise zoned for industrial use. Id. ¶¶ 6-7. The Town made the plans available to members of the public, as is required by law, Mass.Gen.Laws ch. 66, § 10(a), in order that members of the Town could vote on whether to allow the Project to go forward. Winchester-Conant did not obtain the Claim Drawings directly from Danielson, but instead obtained the drawings as a result of the foreclosure sale that took place after Conant Realty Trust defaulted. The facts in this case closely resemble those in the Sixth Circuit’s decision in Johnson. There, an architect developed plans to build a dream home for a client, but was terminated due to difficulties negotiating a final contract. 149 F.3d at 497-99. The client retained another architect who, on the advice of the client’s lawyer, resubmitted the original architect’s plans, this time without the original architect’s logo, to the city inspector to obtain permission to continue building. Id. at 499. The client and the second architect conceded that they copied the plans, but argued that the original architect had granted them an implied nonexclusive license to continue building with the original plans. Id. at 500. The court rejected the defendants’ arguments, finding that “almost every objective fact ... points away from the existence of an implied license.” Id. Two facts were particularly important to the court in Johnson. One was the existence of two AIA standard form contracts nearly identical to the one in this case, which provided that the plans created by the original architect “shall not be used by the oumer or others on other projects ... or for completion of this Project by others ... except by agreement in uniting with appropriate compensation to the Architect.” Id. at 498. Even though these contracts were never signed by any of the defendants, the court found the contracts to be instructive on the issue of the original architect’s intent to retain control over the design and construction of the home. Id. at 500. Likewise, here neither Winehester-Conant nor Willows LLC signed the agreement between Danielson and Conant Realty Trust, but that agreement signaled Daniel-son’s intent not to relinquish control over the use of the Claim Drawings. The second important fact in Johnson was that the' defendants in that case did not acquire the plans for the home from the plaintiff directly, but instead obtained them from the client and the city inspector’s office, where they had been submitted by the original architect in pursuit of a building permit. As in that case, here Winchester-Willows obtained copies of the plans not from Danielson, but instead as a result of the foreclosure of the Property. As in Johnson, these facts point away from a conclusion that Danielson granted an implied nonexclusive license to Winchester-Willows. Not surprisingly, then, Winchester-Willows point to other facts that they claim created an implied nonexclusive license. Winchester-Willows emphasize that the Covenant Drawings “were made a part of the record title of the site, binding any successor in title.” Defs.’ Mem. at 8. This means, according to Winchester-Willows, that Danielson “affirmatively consented to ... use [of the drawings] at the Site by any successor in title including [Winchester-Willows].” Id. Winchester-Willows’s account of the facts skips over a few critical steps. First, Danielson submitted the drawings to Co-nant Realty Trust at Conant’s request, but pursuant to a contract that expressly forbade Conant Realty Trust to use the drawings in any way other than in connection with the Project and with any architect other than Danielson. Edmond Danielson Aff.Ex. A, art. 8.1. The contract between these parties required Danielson to assist Conant Realty Trust in submitting the drawings to the Town to achieve permission to build the residential project. Id. art. 1.3.4. While it is not clear that such a submission to the Town was legally required to obtain a variance and a special permit to build, it is hard to imagine that the Town would not at some point have asked to see what Danielson and Conant Realty Trust planned to build on the Property before the Town allowed them to build it, particularly as a grant of permission to build the Project required making an exception to the zoning ordinance for the Property. The Town then made the drawings available to the general public, as it was legally required to do. At no point did Danielson’s conduct (or lack of conduct) demonstrate a willingness to allow use of the drawings without Danielson’s permission. In fact, the only parties with whom Danielson was in privity, Conant Realty Trust and Tellalian, were expressly forbidden to do so. As Winchester-Willows’s implied nonexclusive license argument progresses, it relies less on facts and more on an admittedly creative legal theory. Winchester-Willows cites Building Officials & Code Administrators International, Inc. v. Code Technology, Inc., 628 F.2d 730 (1st Cir.1980), for the proposition that once a privately-developed work is incorporated into public law — in that case, a privately-compiled model building code was incorporated in the body of Massachusetts building regulations — the private developer loses any copyright interests in the work, whether it be under the rubric of implied nonexclusive license, merger, or publication. Defs.’ Mem. at 8-9. The rationale for this proposition is that “citizens must have free acc