Full opinion text
SUMMARY JUDGMENT/ADJUDICATION DECISION (Docs. 97, 125, 128.) LAWRENCE J. O’NEILL, District Judge. INTRODUCTION Defendants Northern California Universal Enterprises Company (“NCUE”), Lotus Developments, L.P. (“Lotus”) and City of Wasco (“Wasco”) seek summary judgment that plaintiff Roger McIntosh’s (“Mr. McIntosh’s”) copyright infringement claims arising from preparation of a subdivision tentative map and improvement plans cannot be established and are barred by defenses. Mr. McIntosh seeks summary adjudication that NCUE, Lotus, Wasco and defendant Dennis W. DeWalt, Inc. (“DeWalt”) cannot establish affirmative defenses to his copyright infringement claims. This Court considered the parties’ summary judgment/adjudication motions on the record without oral argument, pursuant to Local Rule 78-230(h). For the reasons discussed below, this Court DENIES NCUE, Lotus and Wasco summary judgment on Mr. McIntosh’s claims and GRANTS in part Mr. McIntosh summary adjudication on certain affirmative defenses. BACKGROUND Summary Mr. McIntosh is a Bakersfield civil engineer and does business as McIntosh & Associates, a sole proprietorship. For more than 30 years, Mr. McIntosh has performed urban planning and design of California residential subdivisions. NCUE is a general contractor and has developed subdivisions in the Central Valley. Lotus is a California limited partnership, and NCUE is Lotus’ general partner. DeWalt is a Bakersfield civil engineering firm, performs topographical and land surveys and prepares tentative and final maps for subdivisions. This action arises from alleged infringing use of a tentative map and improvement plans to develop 480 acres as a subdivision in Wasco. Mr. McIntosh alleges that NCUE, Lotus, Wasco and DeWalt “created a residential subdivision by copying and using McIntosh’s copyrighted works and employing a tangible embodiment of the landscape design McIntosh conceived and created.” Mr. McIntosh’s Former Partnership In 1980, Mr. McIntosh and Eugene Martin (“Mr. Martin”) formed Martin-Mclntosh Land Surveying (“Martin-Mclntosh”) which performed land planning services in California, including civil engineering, landscape architecture and construction management. In 1999, Mr. McIntosh bought out Mr. Martin, and Martin-Mclntosh became McIntosh & Associates. Pursuant to the buy out agreement, the rights and works created to that point by Martin-Mclntosh were assigned to Mr. McIntosh. Martin-Mclntosh’s Preparation Of Tentative Map 5472 In January 1992, Wasco encouraged Legacy Group, L.P. (“Legacy”), a former land development firm, to purchase the 480-acre Valley Rose Estates subdivision (“subdivision”) and to develop the subdivision with Wasco financing. In 1992, meaningful steps were initiated to develop a master development plan for the subdivision. Martin-Melntosh created a “draft guidance package” (“guidance package”) that provided direction and clarified expectations among Wasco, Legacy and MartinMelntosh. Martin-Melntosh was to supervise the subdivision development and construction and serve as Legacy’s representative for Wasco’s review and processing of its master plan. Wasco notes that the guidance package called for MartinMelntosh to produce master plans, tentative maps and improvement plans and provide them as part of Wasco’s review and approval. Legacy was to serve as project applicant. By a March 18, 1992 agreement (“MM-Legacy agreement”) with Legacy general partner Michael S. Brown (“Mr. Brown”), Martin-Melntosh agreed to prepare for the subdivision a conceptual plan for $15,200, to prepare master plans for water, sewer and drainage, and other utilities for $54,800, and to conduct a subdivision survey for $19,100, for a $89,100 total. Mr. McIntosh characterizes Martin-Mclntosh’s roles “as a consultant to perform civil engineering services” for the subdivision. By a May 11, 1992 letter agreement, Martin-Melntosh agreed to prepare for the subdivision Parcel Map No. 9572 for $5,000 and improvement plans and final map for Tract 5472 for $57,900. By a June 24, 1992 letter agreement, Martin-Melntosh agreed to prepare a tentative map for Tract 5472 (“Tentative Map 5472”)for $12,100. On July 21, 1992, Martin-Melntosh recorded Map 9572, which divided the subdivision’s 480 acres into six parcels, including the 33.51-acre Tract 5472. According to Mr. McIntosh, he designed the overall subdivision layout and division of individual plots and common spaces and created the subdivision’s landscape designs. Mr. McIntosh’s subdivision and landscape designs are depicted in technical drawings (“MM improvement plans”) that are subject of his February 22, 2007 copyright registration certificate. Mr. McIntosh points out that MartinMelntosh retained ownership of its work pursuant to the MM-Legacy agreement which provides in pertinent part: All original papers, documents, drawings and other work product of consultant [Martin-Melntosh], and copies thereof, produced by consultant pursuant to this agreement shall remain the property of consultant and may be used by consultant without the consent of client [Legacy]. Upon request and payment of the costs involved, client is entitled to copy of all papers, documents and drawing provided client’s account is paid current. Client agrees not to use or permit any other person to use plans, drawings, or other work product prepared by consultant, which plans, drawings, or other work product are not final and which are not signed, and stamped or sealed by consultant.... Client further agrees that final plans, drawings or other work product are for the exclusive use of client and may be used by client only for the project described on the face hereof. Such final plans, drawings or other work product may not be changed nor used on a different project without the written authorization or approval by consultant. The MM-Legacy agreement addressed Legacy’s default: Client acknowledges that its right to utilize the services and work product provided pursuant to this agreement will continue only so long as client is not in default pursuant to the terms and conditions of this agreement and client has performed all obligations under this agreement. In 1992, the Wasco council approved Tentative Map 5472 for development of 33.51 acres into 68 residential lots and one 96-unit multi-family lot. Original Subdivision Improvements Wasco and Legacy entered in a November 3, 1992 development agreement for the subdivision and which provided that the agreement would continue until 2002, unless the tentative map expired. In 1993, Martin-Mclntosh prepared the MM improvement plans (streets, sidewalks, curbs and gutters, storm drains, sewer, water and utilities) for the subdivision. Also in 1993, Martin-Mclntosh submitted the MM improvement plans to Wasco for Legacy to obtain a building permit to construct Tract 5472 improvements. Wasco approved Tentative Map 5472 and the MM improvement plans, and improvements were constructed in 1993 and 1994. Legacy and Wasco entered into a January 28, 1993 Acquisition Agreement (“Acquisition Agreement”) by which Wasco agreed to purchase infrastructure improvements to be constructed on Tract 5472. Legacy was to pay Martin-Mclntosh with money received from Wasco. Wasco claims that it paid no less than $98,000 for the MM improvement plans for Tract 5472. NCUE, Lotus and Wasco further claim that Wasco paid Martin-Mclntosh more than $800,000 for its subdivision services. Mr. McIntosh explains that Wasco paid Martin-Mclntosh on Legacy’s behalf from Martin-Mclntosh’s invoices submitted to Legacy. NCUE and Lotus note that the Acquisition Agreement provided Wasco the right to complete improvements which were not completed by Legacy. In 1994, the real estate market declined, Legacy declared bankruptcy, and subdivision construction ceased. Although improvements were constructed for Tentative Map 5472, legal lots within Tract 5472 were not created, and Martin-Mclntosh ceased work, with Legacy’s default, before the final map was approved. Tentative Map 5472 expired on May 11, 2001, and a final map was not recorded. Lotus’ Subdivision Purchase The subdivision was dormant for 10 years after Wasco decided to stop funding improvements. On April 26, 2002, Wasco purchased Tract 5472 at a tax sale. Mr. McIntosh notes that at that time, the subdivision could have been redesigned by a developer. Wasco points out that substantially all improvements in the subdivision had been constructed in accordance with the MM improvement plans. In November 2003, Wasco marketed Tract 5472 and circulated a developer information package (“developer package”) which reached NCUE’s real estate agent and touted Tract 5472 as having “infrastructure.” The developer package included Tentative Map 5472 and a sewer and water map and noted that there were several plan documents developed in the early 1990s and which Wasco would make available. The developer package pointed out that “infrastructure, including roadways and water lines, were developed on the 34 acre parcel within the City-owned land.” Wasco and NCUE entered into a May 18, 2004 agreement for NCUE’s purchase of the subdivision, including Tract 5472. Prior to the close of escrow, NCUE assigned its purchase rights to Lotus which purchased the subdivision. NCUE contemplated to take advantage of existing subdivision improvements to develop it. Wasco notes that with the subdivision sale, its subdivision ownership interests ceased. With the May 11, 2001 expiration of the Tentative Map 5472, Wasco required Lotus to submit a new tentative map. NCUE’s Contact Of Mr. McIntosh Prior to Lotus’ purchase of the subdivision, NCUE president Joseph Wu (“Mr. Wu”) spoke with Mr. McIntosh by telephone about Lotus’ intended subdivision purchase. Mr. Wu asked Mr. McIntosh if Mr. McIntosh would prepare a new tentative map. Mr. McIntosh responded that he would require $300,000 owed by Legacy plus interest. NCUE and Lotus note that Mr. McIntosh, at the time of his telephone conversation with Mr. Wu, knew that Mr. McIntosh held a copyright interest in Tentative Map 5472 and the MM improvement plans but did not so inform Mr. Wu. NCUE and Lotus point to Mr. McIntosh’s following deposition testimony: Q. ... Did you know at the time that you had this conversation with Mr. Wu that if instead of hiring you he went with another engineer, who then prepared a tentative map substantially similar to the one you had prepared, that Joe would be infringing on your copyright? A. Well, the improvement plans have a copyright stamp on them, so I assume that everyone knew that there was a copyright infringement. Q. ... You didn’t tell Mr. Wu, though, that if he were to do that, he would be violating copyright laws, did you? A. No, I didn’t feel it was my duty to tell him, because he was going to — he said he would call me back. Mr. Wu did not get back to Mr. McIntosh regarding use of Tentative Map 5472 and the MM improvement plans. New Tentative Map 6451 Rather than redesign the subdivision, NCUE with Wasco’s permission chose to process new Tentative Map 6451 to replace expired Tentative Map 5472. On July 21, 2004, Mr. Wu hired defendant DeWalt, a Bakersfield engineering firm, for $26,000 to survey existing improvements and prepare and process new Tentative Map 6451. DeWalt surveyed the streets, curbs, gutters, manhole covers, block walls and visible improvements which had been constructed in Tract 5472. DeWalt processed the survey information and created Tentative Map 6451 to depict observed site improvements and conditions. DeWalt submitted Tentative Map 6451 to Wasco on November 10, 2004. Wasco approved Tentative Map 6451 on March 14, 2005 and Final Map 6451 on February 20, 2007. Wasco did not require NCUE to submit improvement plans due to Legacy’s prior improvement construction. As such, NCUE and Lotus did not prepare or submit subdivision improvement plans. Wasco notes that it did not enter with NCUE or Lotus into a joint venture, partnership, co-ownership or other arrangement regarding subdivision ownership or development. Wasco notes that NCUE and/or Lotus, not Wasco, decided to continue to develop the subdivision. According to Wasco, its role was limited to “routine municipal functions,” including review, comment and approval/disapproval for NCUE/Lotus’ tentative and final maps and processing NCUE/Lotus’s additional requests to finalize subdivision development. Mr. McIntosh’s Learning Of Tentative Map 6451 Mr. McIntosh claims that no earlier than late 2006 did he learn that DeWalt contracted with NCUE to prepare new Tentative Map 6451. After he learned of DeWalt’s work, Mr. McIntosh requested and received Wasco council agendas to monitor the subdivision’s progress. After Mr. McIntosh discovered a final map for new Tract 6451 was being processed, he drove by the subdivision in October 2006 and observed home construction. Mr. McIntosh claims that after seeing the construction, he went to the Wasco building and planning department in late 2006 and confirmed that NCUE had used an identical Tentative Map 5472 and the MM improvement plans to support Tentative Map 6451. Mr. McIntosh concludes that he did not know of infringing activity until November or December 2006. Mr. McIntosh did not warn Mr. Wu or DeWalt of a potential copyright violation: Q. ... And as he moved forward with obtaining his final, and as he moved forward with constructing homes, you never considered contacting him to advise him that in your opinion he was violating your copyright, correct? A. Well, I don’t feel that that’s my— my position to advise him of what the law says. DeWalt president Jeff Gutierrez (“Mr. Gutierrez”) declares: “At no time did Mr. McIntosh ever inform me that my work for Mr. Wu would result in copyright infringement or litigation. In fact, during the entire time [that] DeWalt was working on this project I was never contacted by Mr. McIntosh.” Mr. Wu declares: “The first time I ever heard anything regarding Mr. McIntosh’s alleged copyright was when I was served with the summons and complaint in this action. By that time Lotus and Northern had spent over $1,250,000 in hard construction costs on twelve homes then being constructed ... and $979,403.86 for 68 building permits.” Denial Of Use Of Tentative Map 5472 And The MM Improvement Plans NCUE claims that it did not use Tentative Map 5472 to prepare Tentative Map 6451. Greg Black (“Mr. Black”) was DeWalt’s project manager/lead engineer for Tentative Map 6451 and acknowledges that Wasco emailed him the MM improvement plans. Wasco concedes that it emailed Mr. Black the MM improvement plans on April 13, 2005. However, Mr. Black states in his declaration: I did not reproduce anything from, or otherwise make any use of any improvement plans the City of Wasco provided to me in conjunction with our work on Tentative Map 6451.... I have no knowledge of any DeWalt employee reproducing anything from Tentative Map 5472 prepared by Martin-Mclntosh. DeWalt employees Sara Burgi (“Ms. Burgi”) and Josh Woodward (“Mr. Woodward”) worked on Tentative Map 6451 and deny or do not recall seeing Tentative Map 5472 or the MM improvement plans prior to this litigation or copying them. Wasco notes that DeWalt employees who performed survey work for Tentative Map 6451 denied copying Tentative Map 5472. In his deposition, Mr. Gutierrez testified that when DeWalt starts a project like the subdivision, “we go and find out as much as we can about the existing utilities in an area so that we know correctly to attach them.” Mr. Gutierrez noted that if Wasco had the MM improvement plans, DeWalt’s search would have included them. Mr. Gutierrez declares: “The reason that DeWalt’s 68 lot subdivision, at first glance, resembles that portion of Martin-Mclntosh’s 69 lot subdivision is because all of the roads, curbs and gutters were constructed under the Martin-Mclntosh tentative. Since we surveyed ‘what was there’ it is inevitable that there would be a resemblance to the map under which the improvements were constructed.” Mr. Wu declares that although Wasco provided him landscape and pump station plans for repairs, neither he “nor any other agent of Lotus or Northern obtained any other portions of The Plans prior to the filing of this lawsuit nor did we make copies of any of The Plans.” Wasco notes that after Tentative Map 6541 approval, Wasco’s dealings with NCUE/Lotus were limited to requiring NCUE/Lotus to perform lift station improvements and repairs and maintenance for subdivision completion and final map recording. Wasco points out that NCUE/Lotus’ work in connection with subdivision improvements has been limited to repair and maintenance, including repairing concrete cracks, fixing street lights, repaving streets, and landscaping. Wasco’s Keith Woodcock testified that Wasco did not use the MM improvement plans in conjunction with Tentative Map 6541. Wasco points out that during its review of the Tentative and Final Tract 6451 Maps, it never compared old and new tentative subdivision maps and never used or relied on Tentative Map 5472 to process new and final subdivision maps. Wasco notes that it did not advise, inform or suggest that the other defendants copy, rely on or use Tentative Map 5472 or the MM improvement plans in infringing ways to perform work to finalize subdivision development. Mr. McIntosh notes that he denied permission to use Tract Map 5472 and the MM improvement plans. Mr. McIntosh declares: “I was never contacted by anyone from the City of Wasco or DeWalt Corporation requesting permission to use the 5472 Tentative maps or the MM improvement plans. I also never gave any oral or written permission for either of them to use the 5472 Tentative maps or the improvement plans.” Mr. McIntosh further declares that NCUE and Lotus “were refused permission” to use the Tentative Map 5472 and the MM improvement plans. Mr. McIntosh declares that neither Wasco, NCUE, Lotus nor DeWalt paid to use Tentative Map 5472 or the MM improvement plans. Mr. McIntosh claims that NCUE and DeWalt had access to Tentative Map 5472 and the MM improvement plans through Wasco. According to Wasco, Mr. McIntosh is aware of no facts that Mr. Wu, NCUE, Lotus or DeWalt copied the MM improvement plans besides Mr. McIntosh’s claim that Tentative Map 6451 looks “substantially similar” to the MM improvement plans. Wasco notes that none of its inspection improvements since Legacy’s construction involved a comparison of improvements with the MM improvement plans. Mr. McIntosh’s Claims Mr. McIntosh registered his copyright on Tentative Map 5472 and the MM improvement plans on February 22, 2007. On July 26, 2007, Mr. McIntosh filed his original complaint to initiate this action. Mr. McIntosh proceeds on this third-amended complaint (“TAC”) against NCUE, Lotus, Wasco and DeWalt to allege “Defendants’ construction of the Subdivision is based on landscape and subdivision designs substantially similar to the subdivision and landscape design conceived and created by McIntosh that is represented in the plans and that is the subject of Copyright Registration Certificate No. VAU721-180.” Direct Infringement The TÁC’s first claim alleges that the “copying of the Plans by defendants constitutes infringement of McIntosh’s registered copyright and the technical drawings depicted in the Plans, in violation of the Copyright Act.” Mr. McIntosh claims Tentative Map 6451 is “substantially similar” to Tentative Map 5472 in that the street names, lot configuration, numbering system and tract boundaries appear identical. As to evidence of copying, Mr. McIntosh points to: 1. Tentative Map 5472 and Tentative Map 6451’s identical number of lots; 2. Tentative Map 6451 legends’ reference to existing centerline monuments and lot corner tags; and 3. A note on Tentative Map 6451 acknowledges construction of improvements per the MM improvement plans and Tentative Map 5472. As to lot configuration, Mr. McIntosh claims that Martin-Mclntosh maximized the subdivision’s number of lots after considering Wasco’s requirements, including minimum street width, zoning, lot dimensions and setbacks, subdivision size and increased developer profits. Mr. McIntosh’s direct infringement claim against Wasco arises from the Was-co’s distribution of Tentative Map 5472 and the MM improvement plans to NCUE and/or DeWalt. Contributory Infringement The TAC’s second claim alleges that Wasco “knowingly and materially contributed to and induced the infringing conduct” of NCUE and Lotus. Mr. McIntosh claims that Wasco controlled the subdivision’s development, induced infringing activities by copying, distributing and recording Mr. McIntosh’s plans, and financially benefitted from alleged infringing activities. Requested Relief The TAC seeks a declaration “that the defendants have willfully infringed McIntosh’s exclusive rights in the copyrighted material” and an injunction to “[t]ake all steps necessary to remove any structures or design elements that have been copied from the Plans or built based on the Plans.” The TAC further seeks actual and statutory damages and a “portion of the profits earned by Defendants from the creation and commercial exploitation of the copied Plans.” DISCUSSION Summary Judgment!Adjudication Standards NCUE, Lotus and Wasco seek summary judgment on Mr. McIntosh’s copyright infringement claims. Mr. McIntosh seeks summary adjudication on eight of defendants’ affirmative defenses. F.R.Civ.P. 56(b) permits a “party against whom relief is sought” to seek “summary judgment on all or part of the claim.” “A district court may dispose of a particular claim or defense by summary judgment when one of the parties is entitled to judgment as a matter of law on that claim or defense.” Beal Bank, SSB v. Pittorino, 177 F.3d 65, 68 (1st Cir.1999). Summary judgment is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56(c); Matsushita Elec. Indus, v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987). The purpose of summary judgment is to “pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985). On summary judgment, a court must decide whether there is a “genuine issue as to any material fact,” not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56(c); Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.1984). The evidence of the party opposing summary judgment is to be believed and all reasonable inferences that may be drawn from the facts before the court must be drawn in favor of the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252, 106 S.Ct. 2505. To carry its burden of production on summary judgment, a moving party “must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.2000); see High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990). “[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact.” Nissan Fire, 210 F.3d at 1102; see High Tech Gays, 895 F.2d at 574. “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire, 210 F.3d at 1102-1103; see Adickes, 398 U.S. at 160, 90 S.Ct. 1598. “If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense.” Nissan Fire, 210 F.3d at 1103; see High Tech Gays, 895 F.2d at 574. “If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment.” Nissan Fire, 210 F.3d at 1103; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”) “But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion.” Nissan Fire, 210 F.3d at 1103; see Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’ ” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir.1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Under F.R.Civ.P. 56(d)(1), a summary judgment/adjudication motion, interlocutory in character, may be rendered on the issue of liability alone. “In cases that involve ... multiple causes of action, summary judgment may be proper as to some causes of action but not as to others, or as to some issues but not as to others, or as to some parties, but not as to others.” Barker v. Norman, 651 F.2d 1107, 1123 (5th Cir.1981); see also Robi v. Five Platters, Inc., 918 F.2d 1439 (9th Cir.1990); Cheng v. Commissioner Internal Revenue Service, 878 F.2d 306, 309 (9th Cir.1989). A court “may grant summary adjudication as to specific issues if it will narrow the issues for trial.” First Nat’l Ins. Co. v. F.D.I.C., 977 F.Supp. 1051, 1055 (S.D.Cal.1997). As discussed below, NCUE, Lotus and Wasco fail to demonstrate the absence of factual issues and that they are entitled to judgment as a matter of law. Mr. McIntosh demonstrates that he is entitled to summary adjudication on defendants’ affirmative defenses, except independent creation. General Copyright Principles “Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression ... from which they can be perceived, reproduced, or otherwise communicated.” 17 U.S.C. § 102(a). “Works of authorship include architectural works.” 17 U.S.C. § 102(a)(8). “An ‘architectural work’ is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” 17 U.S.C. § 101. Defendants agree that Tentative Map 5472 and the MM improvement plans are subject to copyright protection. See Del Madera Properties v. Rhodes and Gardner, Inc., 637 F.Supp. 262, 263-264 (N.D.Cal.1985). Defendants dispute that Mr. McIntosh’s copyright interests in them were infringed. Direct Copying Of The MM Improvement Plans Defendants argue that they are not subject to copyright infringement arising from the MM improvement plans because DeWalt need not and did not submit improvement plans. NCUE and Lotus claim an absence of evidence of their copying the MM improvement plans. Wasco argues that it is not subject to contributory or vicarious copyright infringement in the absence of evidence of copying the MM improvement plans. A copyright infringement plaintiff must demonstrate “copying of constituent elements of the work that are original.” Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). “The test of infringement is whether the work is recognized by an ordinary observer as having been taken from the copyrighted source.” Bradbury v. Columbia Broadcasting System, Inc., 287 F.2d 478, 485 (9th Cir.), cert. dismissed, 368 U.S. 801, 82 S.Ct. 19, 7 L.Ed.2d 15 (1961). To avoid summary judgment, a copyright infringement plaintiff need only demonstrate a triable issue of fact whether a defendant copied “anything that was ‘original’ to” the plaintiffs work. Funky Films, Inc. v. Time Warner Entertainment Co., 462 F.3d 1072, 1076 (9th Cir.2006). Defendants point to the absence of evidence of direct copying in that the four DeWalt employees involved in Tentative and Final Maps 6451 deny or do not recall copying. Defendants rely on DeWalt’s lead engineer/project manager Mr. Black who declares that his practice is to “obtain any and all documents in any way related to a parcel of land on which I am working” but denies reproducing or using “any improvement plans” provided by Wasco. Defendants concede that Wasco provided NCUE copies of pump station and landscape plans but note that NCUE did not copy them and reference to the plans for maintenance is not copyright infringement. The parties acknowledge an absence of evidence of direct copying to support copyright infringement. However, the analysis does not end there. Substantial Similarity Of Tentative Map 5472 And Tentative And Final Map 6541 Claiming an absence of evidence of direct copying, defendants hold Mr. McIntosh to establish substantial similarity between Tentative Map 5472 and Tentative and Final Maps 6451. “Absent evidence of direct copying, ‘proof of infringement involves fact-based showings that the defendant had ‘access’ to the plaintiffs work and that the two works are ‘substantially similar.’ ” Funky Films, 462 F.3d at 1076 (internal quotes omitted). “[Tjhere must be substantial similarity between infringing work and the work copyrighted; and that similarity must have been caused by the defendant’s having copied the copyright holder’s creation.” Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir.1970). Substantial similarity “is inextricably linked to the issue of access.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir.2000), cert. denied, 531 U.S. 1126, 121 S.Ct. 881, 148 L.Ed.2d 790 (2001). “Copying may be established by proof of access and substantial similarity.” Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1018 (9th Cir.1985), cert. denied, 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986). “In what is known as the ‘inverse ratio rule,’ we ‘require a lower standard of proof of substantial similarity when a high degree of access is shown.’ ” Three Boys Music, 212 F.3d at 485 (quoting Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir.1996)). “When the issue is whether two works are substantially similar, summary judgment is appropriate if no reasonable juror could find substantial similarity of ideas and expression.” Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.1994). Although “summary judgment is not highly favored on the substantial similarity issue in copyright cases,” Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985), substantial similarity “may often be decided as a matter of law.” Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977). The substantial similarity test contains extrinsic and intrinsic components. Funky Films, 462 F.3d at 1077. At summary judgment, a court applies only the extrinsic test in that intrinsic test, which examines an ordinary person’s subjective impressions of the similarities between two works, is the jury’s exclusive province. Funky Films, 462 F.3d at 1077. Extrinsic analysis is objective and depends on “specific criteria which can be listed and analyzed,” not “the responses of the trier of fact.” Funky Films, 462 F.3d at 1077 (quoting Kouf, 16 F.3d at 1045). A court may determine non-infringement as a matter of law on summary judgment if “no reasonable jury, properly instructed, could find that the two works are substantially similar.” Warner Bros. v. American Broadcasting Co., 720 F.2d 231, 240 (2nd Cir.1983). A court “must take care to inquire only whether ‘the protectible elements, standing alone, are substantially similar.’ ” Williams v. Crichton, 84 F.3d 581, 588 (2nd Cir.1996) (emphasis in original). “[W]hen applying the extrinsic test, a court must filter out and disregard the non-protectible elements in making its substantial similarity determination.” Cavalier, 297 F.3d at 823. Defendants concede that Wasco provided DeWalt’s Mr. Black Tentative Map 5472 by an April 13, 2005 email but challenge substantial similarity in that DeWalt submitted Tentative Map 6451 to Wasco on November 10, 2004. Defendants contend that substantial similarity refers to expression of an artist’s concept, not the underlying idea and that mere identity of ideas expressed by two works is insufficient substantial similarity. See 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea ... regardless of the form in which it is described, explained, illustrated, or embodied in such work.”) “Copyright law only protects expression of ideas, not the ideas themselves.” Cavalier, 297 F.3d at 823. Facts and ideas are not subject to copyright: “The copyright is limited to those aspects of the work-termed ‘expression’— that display the stamp of the author’s originality.” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). “An author can claim to ‘own’ only an original manner of expressing ideas or an original arrangement of facts.” Cooling Systems and Flexibles v. Stuart Radiator, 777 F.2d 485, 491 (9th Cir.1985), overruled on other grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). According to defendants, placement of 68 lots of particular size with streets “is a non-copyrightable idea.” Defendants argue that the “only similarity” between Tentative Map 5472 and Tentative and Final Maps 6451 are non-copyrightable ideas of 68 lots of particular size, lot numbering, street layout, and street naming. To address substantial similarity, Mr. McIntosh points to near unfettered access to Tentative Map 5472 and the MM improvement plans. Mr. McIntosh relies on deposition testimony of Wasco Deputy Director of Public Works Robert Wren that Wasco places no restriction on obtaining copies of subdivision plans. In addition to the number of lots and tract numbering system, Mr. McIntosh points to substantial similarity of Tentative Maps 5472 and 6451, including centerline monuments, front lot corner tags and Tentative Map 6451’s notes referring to Tentative Map 5472. The evidence reveals that defendants had access to Tentative Map 5472 and the MM improvements plans to lower Mr. McIntosh’s substantial similarity burden. Defendants neither articulate nor delineate particular differences between Tentative Map 5472 and Tentative and Final Maps 6451. Defendants put this Court to the task to compare the maps and find the differences without meaningful guidance. Wasco notes that if this Court compares the maps, the Court will “find over 100 differences” and “will be overwhelmed by the differences.” NCUE and Lotus invite this Court to “focus ... on the innumerable differences between the two maps” by which “this Court will find over 250 differences.” Defendants point this Court to 29 pages of the deposition of Steven Wong, whom defendants do not identify but whom presumably is a defense expert. Defendants appear to ask this Court to comb the deposition transcript for differences. This Court is not obliged to scour the evidence to support defendants’ summary judgment motions. Defendants have failed to satisfy their burden to distill the evidence and present it. Defendants’ “go fish” approach is unacceptable. Defendants’ inartful papers fail to demonstrate an absence of a genuine issue of material fact. This Court construes defendants’ failure to articulate and delineate differences as their concession that Tentative Map 5472 and Tentative and Final Maps 6451 are substantially similar, or at a minimum, that factual issues arise as to their similarity. Moreover, the insignificant differences noted by Mr. McIntosh raise factual issues as to substantial similarity to prohibit summary judgment for defendants, especially given Tentative and Final Maps 6451’s need to conform to the prior MM improvement plans. See Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir.1987) (“Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.”) Implied Nonexclusive License Defendants argue that even if the MM improvement plans had been used, Martin-McIntosh had provided Wasco an implied nonexclusive license to reproduce and distribute Tentative Map 5472 and the MM improvement plans to avoid defendants’ liability for copyright infringement. Mr. McIntosh seeks summary adjudication on defendants implied nonexclusive license defense in that he never intended his work to be distributed to or by defendants. A copyright owner “has exclusive rights” “to reproduce the copyrighted work in copies,” “to prepare derivative works based upon the copyrighted work,” and “to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership ...” 17 U.S.C. § 106(l)-(3). “A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” 17 U.S.C. § 204(a). A “narrow exception to the writing requirement” is an implied nonexclusive license to use the copyrighted work. Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 558-559 (9th Cir.1990), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d 1086 (1991). Nonexclusive licenses may be granted orally or may be implied from conduct. Graham v. James, 144 F.3d 229, 235 (2nd Cir.1998). “A copyright owner who grants a nonexclusive license to use his copyright material waives his right to sue the licensee for copyright infringement.” Graham, 144 F.3d at 236. However, “courts have found implied licenses only in ‘narrow’ circumstances where one party ‘created a work at [the other’s] request and handed it over, intending that [the other] copy and distribute it.’ ” SmithKline Beecham v. Watson Pharmaceuticals, 211 F.3d 21, 25 (2nd Cir.2000) (quoting Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir.1990)). An “implied nonexclusive license” for use of an otherwise copyright protected work is created “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 copy and distribute his work.” I.A.E., Inc. v. Shaver, 74 F.3d 768, 776 (7th Cir.1996) (citing Effects Assocs., 908 F.2d at 558-559). In the case at hand, Legacy, not defendants, requested Tentative Map 5472 and the MM improvement plans, which were the subject of contracts between Legacy and Martin-Mclntosh. Martin-Mclntosh created Tentative Map 5472 and the MM improvement plans and submitted them to Legacy. Wasco appears to attempt to step into Legacy’s shoes to transpose itself as the licensee. Although Legacy submitted Tentative Map 5472 and the MM improvement plans for Wasco approval, such approval does not render Wasco a licensee for implied nonexclusive license purposes despite whether payment of Martin-Mclntosh fees flowed from Wasco funds. Defendants conveniently ignore the first two prongs of the implied nonexclusive license test and focus on Martin-Mclntosh’s intent as to copying and distribution of Tentative Map 5472 and the MM improvement plans. Courts have interpreted the third “copy and distribute” prong “to mean that the creator of the protected work must intend that its copyrighted drawings be used on the project for which they were created, independent of the creator’s involvement.” Nelson-Salabes v. Morningside Development, 284 F.3d 505, 515 (4th Cir.2002). The “determinative question” is the creator’s intent assessed in the “totality of circumstances” surrounding the creator’s conduct. See Nelson-Salabes, 284 F.3d at 515. Factors to determine existence of an implied nonexclusive license include “(1) whether the parties are engaged in a short-term discrete transaction as opposed to an ongoing relationship; (2) whether the creator utilized written contracts ... providing that copyrighted materials could only be used with the creator’s future involvement or express permission; and (3) whether the creator’s conduct during the creation or delivery of the copyrighted material indicated that use of the material without the creator’s involvement or consent was permissible.” Nelson-Salabes, 284 F.3d at 516. Defendants overlook these factors and address others discussed below. Public Submission Of Tentative Map 5472 Wasco argues that Martin-Mclntosh “implicitly licensed” Wasco to release and distribute Tentative Map 5472 in that California statutes and Wasco ordinances obligated Wasco to release Tentative Map 5472 as a public record as part of subdivision approval. Wasco points to requirements of the California Subdivision Map Act, Cal. Gov.Code, §§ 66473 et seq., the Wasco Municipal Code, Title 16, Chapter 16.16, the Ralph M. Brown Act (“Brown Act”), California Government Code, §§ 54953 et seq., the California Environmental Quality Act (“CEQA”), Cal. Pub. Resources Code, § 21000 et seq., and the California Public Records Act (“CPRA”), California Gov.Code, §§ 6250 et seq. Wasco contends that in light of these statutes and ordinances, Martin-Mclntosh consented to treatment of Tentative Map 5472 as a public record to provide Wasco a nonexclusive license to reproduce and distribute Tentative Map 5472. Wasco notes that its municipal code required Wasco to provide the Tentative Map 5472 to many public officials, agencies and utilities. Wasco points out that after initial submission of Tentative Map 5472, Wasco’s planning director prepared a report and recommendations which were subject to a public hearing. Wasco concludes that the “public hearing requires, under the Brown Act, that Wasco make the tentative map [and copies of it] available to the public. Cal Gov.Code § 54957.5.” Wasco further notes that CEQA required public disclosure of Tentative Map 5472 as part of the “environmental compliance review process.” Wasco attributes the CPRA to require public access to Tentative Map 5472 “because it constituted a public record.” Wasco argues that Tentative Map 5472 remained in the public domain after its expiration to enable “subsequent purchasers of the parcel to understand what had previously been built on the property.” Mr. McIntosh contends that MartinMclntosh’s submission for Wasco’s approval “does not mean that it is creating an implied license” in that Wasco adopted not Tentative Map 5472 but rather “the conditions that required construction in conformity with the plans.” Mr. McIntosh continues that neither Martin-Mclntosh’s action or inaction demonstrate “willingness” to permit use of Tentative Map 5472 or the MM improvement plans without Mr. McIntosh’s permission. There is no question that Tentative Map 5472 and the MM improvement plans were subject to public disclosure and review. Defendants fail to satisfy that such public disclosure and review constitutes MartinMclntosh’s intent that Wasco copy and distribute Martin-Mclntosh’s work in that, pursuant to defendants’ way of thinking, any protected work subject to public disclosure would lose its protected status. Wasco’s approval of Tentative Map 5472 did not transform Tentative Map 5472 and the MM improvement plans into a matter of statute or ordinance. Although MartinMclntosh may have intended Tentative Map 5472 and the MM improvement plans to be disclosed in the subdivision approval process, there is no evidence that MartinMclntosh intended Tentative Map 5472 and the MM improvement plans to be dispersed to NCUE, Lotus or DeWalt or any other civil engineering firm years after Wasco’s approval of Tentative Map 5472. Mr. McIntosh declares that he never gave permission for further use of Tentative Map 5472 and the MM improvement plans to demonstrate his intent to withhold an implied nonexclusive license. Acquisition Agreement Authorization Defendants point to the January 28, 1993 Acquisition Agreement between Wasco and Legacy to note that Wasco obtained the right to complete improvements uncompleted by Legacy. Defendants note that “such completion would be accomplished by use of the MM improvement plans.” Defendants repeatedly claim without supporting evidence that Wasco “agreed to purchase” the MM improvement plans which were “sold” to Wasco. Defendants point to the Acquisition Agreement’s “assignment and successors in interest” clause to claim that defendants were permitted to use the Martin-Mclntosh improvements. The assignment and successors in interest clause provides: “None of the obligations or benefits of this Agreement shall be assignable by the Subdivider [Legacy] without the prior written consent of the City of Wasco. However, this Agreement shall be binding upon and inure to the benefit of the parties’ heirs, executors, administrators, successors and assigns.” The clause prohibits assignment of benefits without Wasco’s written consent. There is no evidence that Wasco gave such consent. More importantly, Martin-Mclntosh was not a party to the Acquisition Agreement. As such, defendants could inure to no benefit derived from MartinMclntosh, in particular Tentative Map 5472 and the MM improvement plans. Defendants’ claims that Wasco succeeded Legacy and in turn Lotus succeeded Was-co are unsupported factually and legally to grant Wacso an implied nonexclusive license to provide Tentative Map 5472 and the MM improvement plans to a subsequent purchaser of Tract 5472. Moreover, the Acquisition Agreement addresses acquisition of the constructed improvements, not Tentative Map 5472 and the MM improvement plans, which were not Wasco’s to assign, sell or otherwise disperse. No evidence supports defendants’ claim that Wasco purchased the MM improvement plans under the Acquisition Agreement. Defendants point to no definitive language to such effect. Martin-Mclntosh’s ancillary efforts in connection with the Acquisition Agreement do not substantiate an agreement to sell the MM improvement plans to Wasco. Wasco’s payments to Martin-Mclntosh on behalf or account of Legacy do not constitute purchase of Tentative Map 5472 and the MM improvement plans in light of the financing arrangements between Legacy and Wasco. The evidence reveals Martin-Mclntosh adeptness with written agreements and suggests Martin-Mclntosh would have entered into a written agreement with Wasco if it intended to sell the MM improvement plans to Wasco. There is lack of evidence of an “association” among Martin-Mclntosh, Legacy and Wasco to support an implied license to use Tentative Map 5472 and the MM improvement plans to the degree suggested by NCUE and Lotus. Mr. McIntosh notes that Wasco is limited to written, not implied, agreements. Mr. McIntosh cites to California Government Code section 40602, which provides in part: The mayor shall sign: (b) All written contracts and conveyances made or entered into by the city. (c) All instruments requiring the city seal. The legislative body may provide by ordinance that the instruments described in (a), (b) and (c) be signed by an officer other than the mayor. A California city “may be held liable on a contract only if the contract is in writing, approved by the city council, and signed by the mayor or by another city officer designated by the city council in an ordinance.” Authority for California Cities Excess Liability v. City of Los Altos, 136 Cal.App.4th 1207, 1212, 39 Cal.Rptr.3d 571 (2006). The absence of a written contract between Martin-Mclntosh and Wasco reinforces the absence of an implied nonexclusive license. MM-Legacy Agreement Defendants argue that Wasco’s nearly $98,000 payments to Martin-Mclntosh supports an implied nonexclusive license for defendants’ use of Tentative Map 5472 and the MM improvement plans. Wasco argues that the March 18, 1992 MM-Legacy agreement did not “signal ... intent that the City would be precluded from making use of the improvement plans in the same manner it would use plans for any other of the City’s infrastructure.” Mr. McIntosh responds that the MM-Legacy agreement limited use of Tentative Map 5472 and the MM improvement plans to Legacy “in connection with the specific project identified by that contract” and “only so long as [Legacy] was not in default.” Mr. McIntosh contends that neither the MM-Legacy agreement nor another writing authorized defendants to use Martin-Mclntosh’s work. The MM-Legacy agreement preserved Martin-Mclntosh’ work as its property: “All original papers, documents, drawings and other work product of consultant, and copies thereof, produced by consultant pursuant to this agreement shall remain the property of consultant ...” The MM-Legacy agreement limits the scope of use of Martin-Mclntosh’s work: Client agrees not to use or permit any other person to use plans, drawings, or other work product prepared by consultant, which plans, drawings, or other work product are not final and which are not signed, and stamped or sealed by consultant.... Client further agrees that final plans, drawings or other work product are for the exclusive use of client and may be used by client only for the project described on the face hereof. Such final plans, drawings or other work product may not be changed nor used on a different project without the written authorization or approval by consultant. Defendants claim that the MM-Legacy agreement does not prohibit Mr. Brown/Legacy from “using the improvement plans — or permitting others.” (Underlining in original.) Defendants appear to argue that the MM improvement plans were final to lift the use by others prohibition. Defendants appear to further claim that the MM improvement plans could be used in connection with subsequent subdivision development in that the subdivision is the project described in the MM-Legacy agreement. The MM-Legacy agreement evidences Martin-Mclntosh’s intent to maintain its work as its property and to limit the use of its work by Mr. Brown/Legacy. Logic dictates that the scope of the “project” contemplated by the MM-Legacy agreement was limited to Legacy’s development and died when Legacy ceased work and defaulted on its obligations to MartinMclntosh. NCUE/Lotus revived a project 10 years later and made changes to it. The MM-Legacy agreement limits the scope of “project” to that contemplated at the time, not a project arising at an undetermined future date. The MM-Legacy agreement was not an open ended, unlimited license to use Martin-Mclntosh’s works, as defendants claim. Moreover, despite Wasco’s payments to MartinMclntosh for Legacy, those payments arose from Legacy’s obligations to MartinMclntosh. There is no evidence of a direct agreement between Wasco and Martin-Mclntosh in that Martin-Mclntosh’s agreements were with Mr. Brown/Legacy. Claims that Wasco paid Martin-Melntosh are unavailing, despite the amounts which Martin-Melntosh earned. Martin-Mclntosh’s receipt of payment for its subdivision work do not establish an implied nonexclusive license to use Tentative Map 5472 and the MM improvement plans a decade after the payments. Defendants point to no pertinent facts or legal authority that payments to Martin-Melntosh evidence an implied nonexclusive license. Defendants fail to establish an implied nonexclusive license to defeat Mr. McIntosh’s copyright infringement claims. Mr. McIntosh establishes he is entitled to summary adjudication on the issue of implied nonexclusive license which is not a viable defense for defendants. Independent Creation NCUE, Lotus and DeWalt argue that Tentative and Final Maps 6451 were DeWalt’s “independent creation” in that DeWalt surveyed Tract 6451 (former Tract 5472) and processed the survey information to generate Tentative and Final Maps 6451 with observed improvements and conditions. DeWalt notes it “simply compared the results of Map 6451 to Map 5472 to determine whether there were any major external boundary differences.” (Underlining in original.) NCUE and Lotus conclude that “if the expressions had turned out to be identical, though created through independent efforts of both engineers, there would be no infringement” absent copying. “Once a plaintiff has demonstrated that a defendant had access to the copyrighted work and that the defendant’s work is substantially similar to the copyrighted work, the burden shifts to the defendant to prove that the defendant’s work was not a copy, but was independently created.” Transgo, 768 F.2d at 1018. The copying element of a copyright infringement claim “is demonstrated by showing (1) circumstantial (or other) evidence of defendants’ access to the protected works, and (2) substantial similarity between the copyrighted and accused works.” Lanard Toys Ltd. v. Novelty Inc., 511 F.Supp.2d 1020, 1031 (C.D.Cal.2007) (citing Kouf, 16 F.3d at 1043, n. 2). Copyright infringement plaintiffs generally rely on indirect evidence of copying: Because, however, the act of copying is rarely witnessed, copying is ordinarily established indirectly. The plaintiff demonstrates that the defendant had access to the copyrighted items, and that the defendant’s product is substantially similar to plaintiffs’ work. Once this is done, the burden shifts to the defendant to prove his work was not copied, but independently created. Kamar Intern., Inc. v. Russ Berrie and Co., 657 F.2d 1059, 1062 (9th Cir.1981). “Proof of access requires only ‘an opportunity to view or to copy plaintiffs work.’ ... And ‘evidence that a third party with whom both the plaintiff and defendant were dealing had possession of plaintiffs work is sufficient to establish access by the defendant.” Kamar, 657 F.2d at 1062. The evidence is unsettled whether DeWalt independently created Tentative and Final Maps 6451. The evidence is undisputed that NCUE, Lotus and DeWalt had an opportunity to view Tentative Map 5472 in that Wasco used Tentative Map 5472 to market the subdivision to potential developers. There is no dispute that Was-co emailed DeWalt’s Mr. Black the MM improvement plans on April 13, 2005. Wasco maintained Tentative Map 5472 and the MM improvement plans and according to Wasco’s deputy director of public works, did not withhold them from the public. Factual issues arise as to access via Wasco to prevent defendants to establish independent creation of Tentative and Final Maps 6451. Nonetheless, defendants raise meaningful points to support DeWalt’s independent creation of Tentative and Final Maps 6451. DeWalt surveyed Tract 5472 with its existing improvements and incorporated them into its work. The evidence is fuzzy as to what DeWalt did after its survey to generate Tentative and Final 6451 Maps. There is insufficient evidence to conclude that DeWalt’s handling of Tentative Map 5472 and the MM improvement plans constitutes copying to raise factual issues to prevent granting summary adjudication for Mr. McIntosh on the independent creation issue. The jury will need to determine whether Tentative and Final Maps 6451 are the product of copying or independent creation. Idea-Expression Merger Doctrine Defendants contend that Mr. McIntosh’s copyright infringement claims are barred by the idea-expression merger doctrine. Mr. McIntosh argues that the merger doctrine is inapplicable because defendants could have redesigned the subdivision and he seeks “to enforce a copyright as to an original design embodied in his tentative map, not the location of the subdivision.” Copyright “protection is given only to the expression of the idea — not the idea itself.” Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 98 L.Ed. 630 (1954). “Ideas, like facts, are not entitled to copyright.” CDN, Inc. v. Kapes, 197 F.3d 1256, 1261 (9th Cir.1999). “Where an idea and the expression ‘merge,’ or are ‘inseparable,’ the expression is not given copyright protection.” Johnson Controls, Inc. v. Phoenix Control Systems, Inc., 886 F.2d 1173, 1175 (9th Cir.1989). “When there is essentially only one way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression.” Concrete Machinery Co., Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st Cir.1988). “Under the merger doctrine, courts will not protect a copyrighted work from infringement if the idea underlying the copyrighted work can be expressed in only one way, lest there be a monopoly on the underlying idea.... In such an instance, it is said that the work’s idea and expression ‘merge.’ ” Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1082 (9th Cir.2000). In Mason v. Montgomery Data, Inc., 967 F.2d 135, 138 (5th Cir.1992), the Fifth Circuit Court of Appeals explained the merger doctrine: The Copyright Act extends copyright protection to “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C.A. § 102(a) (West Supp.1992). The scope of that protection, however, is not unlimited. “In no case does copyright protection for an original work of authorship extend to any idea, ... regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Id. § 102(b) (emphasis added). Thus, while a copyright bars others from copying an author’s original expression of an idea, it does not bar them from using the idea itself. “Others are free to utilize the ‘idea’ so long as they do not plagiarize its ‘expression.’ ” Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 788, 741 (9th Cir.1971). In some cases, however, it is so difficult to distinguish between an idea and its expression that the two are said to merge. Thus, when there is essentially only one way to express an idea, “copying the ‘expression’ will not be barred, since protecting the ‘expression’ in such circumstances would confer a monopoly of the ‘idea’ upon the copyright owner free of the conditions and limitations imposed by the patent law.” Id. at 742. By denying protection to an expression that is merged with its underlying idea, we “prevent an author from monopolizing an idea merely by copyrighting a few expressions of it.” Toro Co. v. R & R Products Co., 787 F.2d 1208, 1212 (8th Cir.1986). The focus to determine whether the merger doctrine applies