Ranieri v. Adirondack Dev. Group, LLC (164 F. Supp. 3d 305, 2016)

DECISION and ORDER

GLENN T. SUDDABY, Chief United States District Judge

Currently before the Court, in this copyright infringement action filed by Plaintiff, Dominick Ranieri, d/b/a Dominick Ranieri Architect, P.C. (“Plaintiff’) against the above captioned entities and individuals (“Defendants”), are the following four motions for summary judgment, pursuant to Fed. R. Civ. P. 56: (1) Plaintiffs motion for partial summary judgment against Defendants, Adirondack Development Group, LLC (“ADG”), Capital Development Group, LLC, Hodorowski Homes, LLC, Francis J. Hodorowski, Sr., Francis J. “Luke” Hodorowski, Jr. (“John Hodorow-ski”), Paul Hodorowski (collectively “Adirondack”), John Kazmierczak, and North-star Home Designs, LLC (Dkt. No. 93); (2) a motion for summary judgment filed by Defendants Northstar, John Kazmierczak, Creative Concepts Home Plan Services, LLC, (collectively “Northstar”) and Stephen E. Lamb, seeking to dismiss the Amended Complaint as against them (Dkt. No. 97); (3) a motion for summary judgment filed by Defendants Coldwell Banker Prime Properties, Inc. (“C.B. Prime”), and Kenneth Raymond, Jr., seeking to dismiss the Amended Complaint as against them (Dkt. No. 98); and (4) a motion for summary judgment filed by the Adirondack Defendants and J. Luk Construction Co., LLC, seeking to dismiss the Amended Complaint as against them (Dkt. No. 101).

For the reasons set forth below, Plaintiffs motion is granted in part and denied in part and Defendants’ respective motions are granted in part and denied in part.

TABLE OF CONTENTS

I. RELEVANT BACKGROUND .. .320

A. Factual Background. ... 320

B. Plaintiffs Motion for Partial Summary Judgment... .323

C. Northstar’s Motion for Summary Judgment. ... 323

D. Defendant Raymond and C.B. Prime’s Motion for Summary Judgment.. . .323

E. Adirondack’s Motion for Summary Judgment. ... 324

II. STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT...324

III. ANALYSIS... 325

A.Whether Plaintiffs Copyrights Were Infringed... .325

1. Whether Plaintiffs Work Is Protected by a Valid Copyright ... 325

a. Whether Plaintiffs Failure to Advise the Copyright Office that He Is Not the Original Author of the Designs Used to Create Admiral’s Walk Invalidates His Copyright. ... 326

b. Whether Plaintiffs Final Design for Admiral’s Walk Is a Derivative of The Martin Group’s Cambridge Drawings and Whether They Are Sufficiently Original to Be Entitled to Copyright Protection. .. .327

c. Whether Plaintiffs Copyright for Admiral’s Walk Should Be Invalidated Because the Registration Certificate Failed to List the Correct Date of Creation or Designate the Author as a Work Made for Hire.... 330

2. Whether Plaintiffs Designs Were Copied and Whether Such Copying Was Wrongful. .. .331

a. Adirondack and Northstar. .. .331

b. Defendants Paul Hodorowski, J. Luk Construction Co., and Stephen Lamb. ... 334

e. C.B. Prime and Defendant Raymond.. . .334

B. Whether Defendants Had Implied Non-Exclusive Licenses to Use Plaintiffs Designs. ... 335

1. Vly Point. .. .337

2. Admiral’s Walk. ... 339

3. Patroon Point & Jordan Point. ... 341

C. Whether Plaintiffs Copyright Infringement Claims Are Time-Barred. ...342

1. Admiral’s Walk & Vly Point. .. .342

2. Jordan Point. .. .345

D. Whether Defendants Can Be Held Liable for Contributory Copyright Infringement. ...346

1. Adirondack Defendants. .. .347'

2. Defendants Kazmierezak, Lamb, and Northstar. .. .348

3. C.B. Prime and Defendant Raymond. ...348

4. Vicarious Liability. ... 349

E. Whether the First Sale and Exhaustion Doctrines Preclude Plaintiffs Infringement Claims Related to Vly Point and Admiral’s Walk. ... 350

F. Whether C.B. Prime’s Use of Plaintiffs Designs Was Permissible Under the Fair Use Doctrine. ... 350

1. Factor One: the Purpose and Character of the Use. ... 351

a. Transformative Use. ... 351

b. Commercial Use... .352

2. Factor Two: the Nature of the Work. ...353

3. Factor Three: the Amount and Sub-stantiality of the Portion Used....353

4. Factor Four: the Effect of the Use Upon the Market for or Value of the Original. ... 353

5. Overall Assessment. ... 354

G. Whether Defendants Violated the Lanham Act ... 354

H. Whether Plaintiff May Recover Statutory Damages and/or Attorneys’ Fees. ...355

I. Whether Plaintiffs Claim for Unfair Competition Under N.Y. Gen. Bus. Law § 349 Should Be Dismissed.... 356

J. Whether Plaintiffs Claim for Interference with Business Relations/Contract and Interference with Economic Advantage Should Be Dismissed.... 357

K. Whether Plaintiffs Conspiracy Claim Should Be Dismissed. .. .358

L. Whether Plaintiffs Breach-of-Contract Claims Should Be Dismissed as to All Defendants Except Adirondack and Hodo-rowski Homes, LLC.. .358

I. RELEVANT BACKGROUND

A. Factual Background

Generally, the salient facts regarding the parties’ respective motions are as follows. Plaintiff is an architect licensed in New York State. (Dkt. No. 94, Attach. 21, ¶ 5 [Pl.’s Rule 7.1 Statement].) Defendants John Hodorowski and Francis J. Hodorow-ski, Sr., owned ADG which was later renamed as Hodorowski Homes, LLC, at some point between 2011 and 2012 and taken over by Defendants John and Paul Hodorowski. (Id., ¶¶ 7-8, 10.) Hodorowski Homes, LLC, is in the business of residential single and multi-family home construction. (Id., ¶ 9.) Capital Development Group, LLC, is owned equally by Defendants Francis J. Hodorowski, Sr., and Kenneth Raymond, Jr. (Id., ¶ 11.) Capital Development Group was an owner and the developer of three development projects referred to in this action as Vly Point, Admiral’s Walk, and Jordan Point. (Id., ¶¶ 13-14, 18.) J. Luk Construction Co., LLC, is a general construction company owned by John and Paul Hodorowski. (Dkt. No. 93, ¶ 15 [Mead Aff.].)

Defendant, John Kazmierczak, is a draftsman (an unlicensed architect) and the owner of Northstar. (Dkt. No. 94, Attach. 21, ¶ 15 [Pl.’s Rule 7.1 Statement]; Dkt. No. 93, ¶ 18 [Mead Aff.].) Stephen E. Lamb is an independent contractor who typically stamped Defendant Kazmierc-zak’s designs. (Dkt. No. 93, ¶ 18 [Mead Aff.].)

Vly Point

At some point before December 2005, Plaintiff was approached by Defendants Francis and John Hodorowski about designing buildings and creating plans for a condominium development project referred to as Vly Point. (Id., ¶¶ 16-17.) Plaintiff presented a proposal for Vly Point to ADG on September 29, 2004, and a contract was entered into between the parties on December 9, 2004. (Id., ¶¶ 20-21.) In accordance with the contract, Plaintiff developed plans for Vly Point, which were to be used solely for that project. (Id., ¶¶ 24, 27, 29.) ADG was the builder of Vly Point; Capital Development Group was the owner and developer; Francis Hodorowski, Sr., worked with Plaintiff in the conceptual design of the project; John Hodorowski was the estimator and project manager; and Paul Hodorowski worked in the field doing punch-list items and served as the sales liaison for the project. (Id., ¶ 18.)

Admiral’s Walk

While the Vly Point project was underway, Plaintiff was approached to design condominium units for Admiral’s Walk. (Id., ¶ 58.) At the time Plaintiff was consulted regarding this project, site plan and zoning approvals had been issued based upon drawings drafted by The Martin Group architectural firm. (Id., ¶ 62.) Plaintiff had a previous relationship with The Martin Group and reached an agreement with them to purchase the drawings. (Id., ¶ 63.) According to the agreement, Plaintiff owned the copyrights to the design, plans, and drawings and could modify them if he chose to do so. (Id., ¶ 64.) After the site plan had been approved by municipal authorities, Plaintiff was hired by ADG to further develop the basic concept design of these drawings. (Id., ¶ 65.) The parties entered into an agreement on March 17, 2005. (Id., ¶ 66.) As in the Vly Point project, ADG was the builder of Admiral’s Walk, Capital Development Group was part owner, and John Hodorowski was the estimator and project manager. (Id., ¶ 60.)

Plaintiff provided ADG with a “Permit and Construction” set of drawings for this project. (Id., ¶ 69.) Some of the changes made to The Martin Group’s original drawings included the removal of dormers, elimination of stone and using brick, changes to the arch detail, elimination of windows, and a fourth floor “bonus” room. (Id., ¶ 70.) Plaintiffs drawings became the permit and construction set of drawings for Admiral’s Walk and were stamped by Plaintiff and accepted by ADG. (Id., ¶ 71.)

Patroon Point

ADG hired Plaintiff to provide designs, plans, and drawings for a townhouse project referred to as Patroon Point. (Id., ¶ 93.) Plaintiff provided ADG with a construction set of drawings for Patroon Point to use for construction. (Id., ¶ 97.) Adirondack had permission to use Plaintiffs drawings and designs for this project only. (Dkt. No. 101, Attach. 10, ¶ 51 [Adirondack Rule 7.1 Statement].) Patroon Point was completed sometime in the year 2002. (Dkt. No. 97, Attach. 1, ¶ 9 [Northstar’s Rule 7.1 Statement].)

Plaintiffs Employment is Terminated

While construction was ongoing at both Vly Point and Admiral’s Way in April of 2007, ADG informed Plaintiff that it would no longer be using his designs, plans, or drawings, and consequently, would not make any further payments under the parties’ contract. (Dkt. No. 94, Attach. 21, ¶¶ 35, 72 [PL’s Rule 7.1 Statement]; Dkt. No. 101, Attach. 10, ¶¶ 39-40 [Adirondack’s Rule 7.1 Statement].) ADG made this decision for what it believed were “buildability” issues with Plaintiffs designs. (Dkt. No. 101, Attach. 10, ¶¶ 35-38 [Adirondack’s Rule 7.1 Statement].) In response, Plaintiff advised that, if ADG was no longer going to use his services or designs, then ADG and Capital Development Group could no longer use his designs to continue to get permits or for construction. (Dkt. No. 94, Attach. 21, ¶ 36 [PL’s Rule 7.1 Statement].)

Thereafter, ADG hired Defendant Kaz-mierczak and his company, Northstar, to modify Plaintiffs drawings for both the Vly Point and Admiral’s Walk projects. (Id., ¶¶ 40, 76.) ADG gave Defendant Kaz-mierczak Plaintiffs drawings for these projects without informing Plaintiff or obtaining his permission. (Id., ¶¶ 42, 46, 77. 86.) With respect to Vly Point, Defendant Kazmierczak made minor modifications to Plaintiffs design, including adding a master bedroom to certain units and a walkout basement. (Id., ¶¶ 47, 53.) ADG has admitted that Plaintiff owns the Vly Point design, plans, and drawings and that the plans used to construct all the buildings on this project were the plans that contained Plaintiffs design aesthetic and his general overall design. (Id., ¶¶ 48-49, 51.)

After his termination, Plaintiff learned that ADG and Capital Development Group were continuing to use his designs, plans, and drawings to obtain building permits for both Vly Point and Admiral’s Walk. (Id., ¶¶37, 73.) Plaintiff sent cease-and-desist letters to the Town of Niskayuna directing them to cease and desist from allowing Plaintiffs drawings to be used in connection with issuance of additional building permits on the projects. (Dkt. No. 101, Attach. 10, ¶ 49 [Adirondack’s Rule 7.1 Statement].)

Jordan Point

In July 2010, Plaintiff alleges that he discovered the site known as Jordan Point and recognized the buildings that were completed and those that were still under construction as being from his designs. (Dkt. No. 52, ¶ 84 [Pl.’s Am. Compl.]; Dkt. No. 109, Attach. 8, ¶ 4 [Ranieri Aff.].) It was later determined that ADG was the builder for the project, Capital Development Group was the owner and developer, John Hodorowski was the estimator and project manager, and Paul Hodorowski was an estimator and sales liaison. (Dkt. No. 94, Attach. 21, ¶ 91 [Pl.’s Rule 7.1 Statement].) ADG gave Plaintiffs Patroon Point drawings to Defendant Kazmierczak and had him redraft them to be used for Jordan Point. (Id., ¶ 104.) The Adirondack Defendants and Defendant Kazmierczak have admitted that they used Plaintiffs design, plans, and drawings to build the first four buildings at Jordan Point without Plaintiffs knowledge or consent. (Id., ¶¶ 108,110.)

C.B. Prime and Defendant Raymond

C.B. Prime is a real estate company owned by Defendant Raymond. (Dkt. No. 93, ¶ 17 [Mead Aff.].) C.B. Prime acted as the exclusive listing agent for the marketing and sales of the condominiums and townhouses at Vly Point, Admiral’s Walk, and Jordan Point. (Dkt. No. 98, Attach. 2, ¶ 11 [C.B. Prime Rule 7.1 Statement].) As listing agent, C.B. Prime advertised real estate for the three projects on certain websites that described the various building models, floor plans, and included images of them. (Id., ¶ 14.) The advertisements also included the following disclaimer, “[a]rchitectural illustrations and floor plans are artist’s concepts and may include various features and options not part of the standard plan. ... This sheet is for illustrative purposes only and is not a working drawing.” (Id., ¶ 15.)

Plaintiffs Certificates of Copyright Registration

In May 2011 and May 2012, Plaintiff was issued copyrights from the U.S. Copyright Office for architectural work and technical drawings related to the Vly Point project. (Id., ¶ 55.) In May 2011, June 2011, and June 2012, Plaintiff was issued copyrights for architectural works and technical drawings related to the Patroon Point project. (Id., ¶ 56.) In June 2011, Plaintiff was issued a copyright for architectural work related to the Admiral’s Walk project. (Id., ¶ 57.)

Plaintiffs Amended Complaint

Based upon the foregoing, Plaintiffs Amended Complaint asserts the following eleven claims: (1) a claim for copyright infringement against all Defendants related to the Admiral’s Walk, Vly Point, and Jordan Point projects; (2) a claim for contributory and vicarious copyright infringement against all Defendants; (3) a claim for unfair competition under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), against all Defendants; (4) a claim for breach of contract related to the Vly Point and Admiral’s Walk projects against all Defendants; (5) a claim for unfair trade practices under N.Y. General Business Law § 349 against all Defendants; (6) a claim for unjust enrichment against all Defendants; (7) a claim for civil conspiracy against all Defendants; (8) a claim for tortious interference with business relations and contract against Defendants Kazmierczak, John Hodorowski, Paul Hodorowski, Stephen Lamb, and Kenneth Raymond; (9) a claim for tortious interference with prospective economic advantage against all Defendants; (10) a claim for account stated against all Defendants; and (11) a claim for quantum meruit against all Defendants. (Dkt. No. 52, ¶¶ 92-163 [Pl.’s Am. Compl.].)

B. Plaintiffs Motion for Partial Summary Judgment

Plaintiff has moved for partial summary judgment with regard to liability on his copyright infringement claims (Counts One through Four) related to his designs for Admiral’s Walk, Yly Point, and Jordan Point against the Adirondack and North-star Defendants. (Dkt. No. 94, Attach. 20, at 1 [Pl.’s Mem. of Law]; Dkt. No. 52, ¶¶ 92-111 [Pl.’s Am. Compl.].) In support of his motion, Plaintiff argues that the Adirondack and Northstar Defendants are liable for direct, contributory, and vicarious copyright infringement because Plaintiff is the owner of valid and protected copyrights, which were unlawfully copied and used for these projects. (Dkt. No. 94, Attach. 20, at 3-14 .[Pl.’s Mem. of Law].)

C. Northstar’s Motion for Summary Judgment

Defendants Northstar, John Kazmierc-zak, Creative Concepts, and Stephen Lamb have moved for summary judgment on Plaintiffs copyright claims (Counts One through Four) and Plaintiffs state law causes of action that allege tortious interference with business relations, contract, and prospective economic advantage (Counts Eleven and Twelve). (Dkt. No. 97, Attach. 15, at 1-6 [Northstar’s Mem. of Law].) With respect to the copyright claims, these Defendants argue that they should be dismissed for the following four reasons: (1) Plaintiffs copyright claims are time-barred; (2) ADG was a valid licensee of Plaintiffs designs; (3) any changes made to Plaintiffs designs by Defendant Kaz-mierczak was de minimis and/or trivial in order to make them “buildable” and were done before Plaintiff had obtained copyright certificates; and (4) Defendant Kaz-mierczak acted at the direction of ADG, which had a license to use Plaintiffs designs. (Id. at 3-4.)

In regard to Plaintiffs tortious interference claims, Defendants argue that they should be dismissed because Plaintiff no longer had a business relationship with ADG and/or the Hodorowskis at the time ADG hired Defendant Kazmierczak and, thus, there was no relationship with which the Northstar Defendants could have interfered. (Id. at 5-6.)

D.Defendant Raymond and C.B. Prime’s Motion for Summary Judgment

Defendant Raymond and C.B. Prime have moved for summary judgment to dismiss Plaintiffs claims against them for the following six reasons: (1) Plaintiffs' copyright infringement claims are precluded by an express and implied license to use the material in question; (2) Plaintiff has failed to allege a prima facie case of copyright infringement; (3) any purported infringement is not actionable under the First Sale, Exhaustion, and Merger doctrines, and copyright protection does not extend to “scenes-a-faire”; (4) Defendants’ use of any copyright architectural drawings was a “fair use”; (5) Plaintiffs claims are barred by the applicable statute of limitations; and (6) Plaintiff is not entitled to statutory damages or attorneys’ fees because he did not register his copyrights until well after the alleged infringement(s) occurred. (Dkt. No. 98, Attach. 2, at 7-25 [C.B. Prime Mem. of Law].)

In addition, Defendant Raymond has moved for summary judgment on Plaintiffs copyright infringement claims on the basis that Plaintiff has alleged only conclu-sory claims against him devoid of factual support. (Dkt. No. 98, Attach. 3, at 6-9 [Raymond Mem. of Law].) Finally, Defendant Raymond has also moved for summary judgment on Plaintiffs state law claims against him, which allege tortious interference with business relations, contract, and prospective economic advantage (Counts Eleven and Twelve). (Id. at 3-6, 9.) Specifically, Defendant Raymond argues that these claims are time-barred and Plaintiff has failed to allege sufficient facts to make out a prima facie case. (Id.)

E. Adirondack’s Motion for Summary Judgment

The Adirondack Defendants have moved for summary judgment to dismiss Plaintiffs claims against them. With respect to Plaintiffs copyright infringement claims, Adirondack has moved to dismiss them for the following seven reasons: (1) Plaintiff was not the author of the designs utilized by ADG on the Admiral’s Walk project; (2) Plaintiffs designs for Admiral’s Walk were not protected by a valid copyright and are not entitled to copyright protection because they are not original and/or are a derivative of The Martin Group’s drawings; (3) ADG had a nonexclusive license to use Plaintiffs designs; (4) Plaintiffs claims are time-barred; (5) with respect to Jordan Point, Plaintiff should be barred from recovering damages for any infringing acts that occurred prior to August 24, 2008, and Plaintiffs damages should be limited to nine-thousand and two-hundred dollars . ($9,200.00); (6) Plaintiff has failed to specify or disclose facts demonstrating that the Adirondack Defendants induced, caused, or materially contributed to any infringing conduct that warrants contributory infringement liability; and (7) Defendants Francis J. Hodorowski, Sr., John Hodo-rowski, and Paul Hodorowski cannot be held vicariously liable for copyright infringement as a matter of law. (Dkt. No. 101, Attach. 9, at 4-24 [Adirondack Mem. of Law].) Furthermore, Adirondack has moved for summary judgment on the following claims: (1) Plaintiffs unfair competition claim under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and N.Y. Gen. Bus. Law § 349; (2) Plaintiffs state law claims for tortious interference with business relations, contract, and prospective economic advantage; and (3) Plaintiffs state law claims for conspiracy and breach of contract. (Id. at 25-35.)

II. STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT

Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) (citation omitted); see also Fed. R. Civ. P. 56(e)(2). As the Supreme Court has famously explained, “[the non-moving party] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “Factual disputes that are irrelevant or unnecessary will not be counted.” Id.

In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. In addition, “[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ... [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fed. R. Civ. P. 56(c), (e). However, when the moving party has met this initial burden of establishing the absence of any genuine issue of material fact, the nonmoving party must come forward with specific facts showing a genuine dispute of material fact for trial. Fed. R. Civ. P. 56(c), (e). Where the non-movant fails to deny the factual assertions contained in the movant’s Rule 7.1 Statement of Material Facts in matching numbered paragraphs supported by a citation to admissible record evidence (as required by Local Rule 7.1[a][3] of the Court’s Local Rules of Practice), the court may not rely solely on the movant’s Rule 7.1 Statement; rather, the court must be satisfied that the citations to evidence in the record support the movant’s assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143, n. 5 (2d Cir.2003) (holding that not verifying in the record the assertions in the motion for summary judgment “would derogate the truth-finding functions of the judicial process by substituting convenience for facts”).

Finally, when a non-movant fails to oppose a legal argument asserted by a movant, the movant’s burden with regard to that argument is lightened, such that, in order to succeed on that argument, the movant need only show that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein .... ”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n. 1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL 2473509, at *2 & n. 3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting- cases).

III. ANALYSIS

A. Whether Plaintiffs Copyrights Were Infringed

After carefully considering the matter, the Court answers this question in the affirmative for the reasons set forth below.

“In order to make out a claim of copyright infringement for an architectural work ... a plaintiff must establish three things: 1) that his work is protected by a valid copyright, 2) that the defendant copied his work, and 3) that the copying was wrongful.” Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 100 (2d Cir.2014). The Court will address each, of these elements in turn.

1. Whether Plaintiffs Work Is Protected by a Valid Copyright

As indicated earlier, in support of his motion for partial summary judgment, Plaintiff essentially argues that he is the owner of valid and protected copyrights for Vly Point, Admiral’s Walk, and Patroon Point, which were unlawfully copied by Defendants. (Dkt. No. 94, Attach. 20, at 3-9 [Pl.’s Mem. of Law].) Plaintiff argues that he is the owner of these three sets of architectural designs and drawings for the following three reasons: (1) he has valid copyrights for each design; (2) the designs are his original works; and (3) Defendants do not dispute that he is the author of these designs or that he holds valid copyright certificates. (Id. at 3-5.)

In opposition, Defendants do not contest the validly or Plaintiffs ownership of the copyrights for Vly Point or Patroon Point. However, Adirondack argues that, because Plaintiff purchased the design plans for Admiral’s Walk from The Martin Group and admitted using these designs with minor modifications, Plaintiff is not the author of the designs for this project. (Dkt. No. 110, at 2-3 [Adirondack’s Opp’n Mem. of Law].) More specifically, Adirondack argues that Plaintiffs copyright for the Admiral’s Walk designs should be invalidated for the following three reasons: (1) Plaintiff failed to advise the U.S. Copyright Office that The Martin Group was the original author of the designs; (2) the designs were a derivative of their prior work on other projects; and (3) the registration certificate incorrectly identified the “date of creation” as 2005 and failed to designate the author as a “work made for hire.” (Id. at 4-7.)

a. Whether Plaintiffs Failure to Advise the Copyright Office that He Is Not the Original Author of the Designs Used to Create Admiral’s Walk Invalidates His Copyright

With respect to Adirondack’s argument regarding original authorship, “[t]he Copyright Act of 1976 provides that copyright ownership ‘vests initially in the author or authors of the work.’ 17 U.S.C. § 201(a). As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989); accord, Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177,185 (2d Cir.2004). “’[A]uthorship is a sine qua non for any claim of copyright .... That is, the person claiming copyright must either himself be the author, or he must have succeeded to the rights of the author.’ ” Sorenson v. Wolfson, 96 F.Supp.3d 347, 362 (S.D.N.Y.2015) (quoting 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 5.01[A] [1993]). “A certificate of copyright registration is prima facie evidence of ownership of a valid copyright, but the alleged infringer may rebut that presumption.” Scholz Design, Inc. v. Sard Custom Homes, LLC, 691 F.3d 182, 186 (2d Cir.2012) (citing MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 192 [2d Cir.2004]).

Here, as discussed above, Plaintiff purchased the design drawings for Admiral’s Walk from The Martin Group. Section 204 of the Copyright Act permits the transfer of copyright ownership if the conveyance is in writing and signed by the owner of the rights conveyed or the owner’s agent. 17 U.S.C. § 204(a); see also Tjeknavorian v. Mardirossian, 56 F.Supp.3d 561, 565 (S.D.N.Y.2014). Plaintiff concedes that neither he nor The Martin Group retained a copy of the written agreement; however, both parties agree that such an agreement was executed. (Dkt. No. 109, Attach. 9, at 3 [PL’s Opp’n Mem. of Law].) Section 204 has been interpreted to allow for the oral transfer of a copyright that will be given legal effect by a subsequent signed writing. Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 827-29 (3d Cir.2011). In the present case, Plaintiff has submitted a notarized letter from the Principal of The Martin Group, dated May 26, 2011, which states that

[t]he Martin Architectural Group PC., had previously on or around April, 2005, conveyed to [Plaintiff] all common law, statutory and other reserved rights, in-eluding copyrights to the said designs and all provided drawings for the aforementioned Admirals Walk Condominium project, and that The Martin Architectural Group, PC., hereby attests and confirms that [it] retains no copyrights or any other rights to said plan documents and designs created solely for and with [Plaintiff] and developed at the Admirals Walk Condominiums Project in Cohoes, NY.

(Dkt. No. 101, Attach. 6, at 86 [Ex. “LL”].)

Accordingly, as the valid owner of the copyrights purchased from The Martin Group, Plaintiff obtained “a bundle of discrete rights,” including the right to reproduce, prepare derivative works, distribute, or display work based upon the Admiral’s Walk designs. Davis v. Blige, 505 F.3d 90, 98 (2d Cir.2007) (citing 17 U.S.C. § 106). Therefore, the fact that Plaintiff was not the original author of the Admiral’s Walk drawings does not invalidate his copyright claim because he properly purchased the copyrights from The Martin Group.

b. Whether Plaintiffs Final Design for Admiral’s Walk Is a Derivative of The Martin Group’s Cambridge Drawings and Whether They Are Sufficiently Original to Be Entitled to Copyright Protection

Adirondack’s second argument is that Plaintiffs designs for Admiral’s Walk derived from previous work The Martin Group had done on an unrelated project known as “Cambridge.” (Dkt. No. 110, at 7 [Adirondack’s Opp’n Mem. of Law].) Accordingly, Adirondack argues that Plaintiffs designs for the Admiral’s Walk project are not entitled to copyright protection because they are a derivative of the Cambridge design, for which Plaintiff does not have copyrights. (Id at 7.) Furthermore, Adirondack appears to argue that Plaintiffs design for Admiral’s Walk is also not entitled to copyright protection as a derivative work. (Id at 8.) Specifically, Adirondack argues that Plaintiff made minimal changes to the Cambridge design and the modifications were at the direction of Defendant Francis Hodorowski, not Plaintiff. (Id at 8.) Therefore, Adirondack argues that any modifications to The Martin Group’s prior work on the Cambridge design are not original to Plaintiff. (Id)

In reply, Plaintiff argues that his Admiral’s Walk designs are not derivative works because the Cambridge design was never registered with the U.S. Copyright Office. (Dkt. No. 109, Attach. 9, at 4-5 [Pl.’s Opp’n Mem. of Law]; Dkt. No. 114, Attach. 1, at 1-2 [Pl.’s Reply Mem. of Law].) In addition, Plaintiff argues that his work for Admiral’s Walk is entitled to full copyright protection because the designs ultimately used for the project were significantly different from The Martin Group’s original Cambridge design. (Dkt. No. 109, Attach. 9, at 5 [PL’s Opp’n Mem. of Law].)

As stated in the preceding section, a certifícate of registration constitutes prima facie evidence of the validity of a copyright and the facts stated in the certificate. 17 U.S.C. § 410(c). However, “the Copyright Office’s practice of summarily issuing registrations ... counsels against placing too much weight on registrations as proof of a valid copyright.” Univ. Furniture Int’l, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 428 (4th Cir.2010). Furthermore, “the failure to alert the Copyright Office to relationships between the work for which registration is sought and prior works of others endangers the presumption of validity.” Gibson Tex, Inc. v. Sears Roebuck & Co., 11 F.Supp.2d 439, 442 (S.D.N.Y.1998) (citing Russ Berrie & Co., Inc. v. Jerry Elsner Co., Inc., 482 F.Supp. 980, 988 [S.D.N.Y.1980]); see also Santrayall v. Burrell, 993 F.Supp. 173, 176 (S.D.N.Y.1998) (noting that, “[w]hen a claimant fails to advise the Copyright Office of the reliance upon the work of another, the claimant does not afford the Office the fair opportunity to pass upon the question of originality in relation to the prior work”).

In the present case, Plaintiff testified at his deposition that, when he was approached about site planning for the Admiral’s Walk project, he contacted The Martin Group about obtaining potential building designs. (Dkt. No. 93, Attach. 9, 220:2-221:5 [Ranieri Dep.].) More specifically, Plaintiff sought to obtain designs used by The Martin Group on prior projects that he could use for Admiral’s Walk in an effort to procure site plan approvals from the City of Cohoes without incurring the expense of creating new designs. (Id. at 220:7-22.) The Martin Group agreed to help Plaintiff and allowed him to go through a packet of their marketing drawings of their condominium projects. (Id. 220:22-221:4; 239:10-19.) Plaintiff acknowledged that the designs he selected from The Martin Group were designs that had already been used to construct buildings on one of its prior projects in New Jersey. (Id. at 221:10-17.) Significantly, Plaintiff testified that the designs he obtained from The Martin Group had copyright notices on them. (Dkt. No. 93, Attach. 9, 222:14-16 [Ranieri Dep.].) Plaintiff further testified that the building he designed for Admiral’s Walk was a derivative of The Martin Group’s design and that The Martin Group owned the copyrights to that building while he owned the copyrights to the new building. (Dkt. No. 93, Attach. 10, at 321:20-322:2 [Ranieri Dep.].)

Notwithstanding the above testimony, Plaintiffs Certificate of Registration for the Admiral’s Walk design does not mention The Martin Group’s prior design. (Dkt. No. 101, Attach. 6, at 85 [Ex. “KK” to Adirondack’s Mem. of Law].) Section 409 of the Copyright Act requires an application for copyright registration to include “an identification of any preexisting work or works that [a derivative work] is based on or incorporates, and a brief, general statement of the additional material covered by the copyright claim being registered.” 17 U.S.C. § 409(9). Accordingly, the Court finds that evidence of Plaintiffs failure to register the design as a derivative work rebuts the presumption of the copyright’s validity. “This finding does not, however, automatically invalidate the copyright. ... Although the Court does not presume that [Plaintiffs] copyright is valid, [defendants] still must prove that [plaintiffs] design lacks the requisite originality for copyright protection in order to prevail on their motion for summary judgment.” Gibson Tex, Inc., 11 F.Supp.2d at 442. “Conversely, [plaintiff] cannot succeed on its summary judgment motion without showing that its design possesses sufficient originality for copyright.” Id.

With respect to originality, the Supreme Court has stated that

the requisite level of creativity 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.

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); see also Waldman Publ’g Corp. v. Landoll, Inc., 43 F.3d 775, 782 (2d Cir.1994) (holding that “[t]he law requires more than a modicum of originality. This has been interpreted to require a distinguishable variation that is more than merely trivial.”). Therefore, in order to qualify for protection as a derivative work, and be separately copyrightable, the new contributions must, “when analyzed as a whole, ... display sufficient originality so as to amount to an ‘original work of authorship.’ ” Matthew Bender & Co., Inc. v. West Publ’g Co., 158 F.3d 674, 680 (2d Cir.1998); see also Waldman, 43 F.3d at 782 (stating that “[a] derivative work is copyrightable if it is sufficiently original”). “For better or worse, courts have not required an ‘especially elevated’ level of originality in the architectural realm.” Axelrod & Cherveny Architects, P.C. v. Winmar Homes, 05-CV-0711, 2007 WL 708798, at *9 (E.D.N.Y. Mar. 6, 2007); see also Yankee Candle Co. v. New England Candle Co., 14 F.Supp.2d 154, 158 (D.Mass.1998) (noting that “[c]ourts have routinely protected modern architectural structures, such as commercial homes, that possess the minimal amount of originality that copyright law requires, as well as the plans from which owners built them”).

Here, Plaintiff argues that his final design for Admiral’s Walk was significantly different from The Martin Group’s original Cambridge design because his design “removed dormers, eliminated stone and used brick, changed the arch detail, eliminated windows, and eliminated a fourth floor bonus room.” (Dkt. No. 109, Attach. 9, at 5 [Pl.’s Opp’n Mem. of Law].) It is well established that standard features, “such as windows, doors, and other staple building components,” are not copyrightable. 37 C.F.R. § 202.11(d)(2); Zitz v. Pereira, 119 F.Supp.2d 133, 147 (E.D.N.Y.1999). However, “[a]s the Supreme Court’s decision in [Feist ] makes clear, a work may be copyrightable even though it is entirely a compilation of unprotectible elements.” Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1003-04 (2d Cir.1995); see also Zalewski, 754 F.3d at 103-04 (noting that “doors and walls are not copyrightable, but their arrangement in a building is. Some architectural designs, like that of a single-room log cabin, will consist solely of standard features arranged in standard ways; others, like the Guggenheim, will include standard features, but also present something entirely new.”); Frank Betz Assoc., Inc. v. J.O. Clark Constr., LLC, 08-CV-0159, 2010 WL 4628203, at *5 (M.D.Tenn. Nov. 5, 2010) (noting that “[i]n the case of more mundane residential designs, it is obvious that the use of porches, porticos, dormers, and bay windows, for example, is not protected, but the particular expression of those ideas, and their combination in one house, may be protected”).

Based on the current record, the Court is unable to determine, as a matter of law, whether the changes Plaintiff made to The Martin Group’s Cambridge design render the final design sufficiently original and/or creative. “Typically, ‘[w]hen the originality of a copyrighted work is at issue, it becomes a question of fact for the jury to resolve.’ ” Vargas v. Pfizer, Inc., 418 F.Supp.2d 369, 372 (S.D.N.Y.2005) (quoting Tin Pan Apple, Inc. v. Miller Brewing Co., Inc., 88-CV-4085, 1994 WL 62360, at *4 [S.D.N.Y. Feb. 24, 1994]). Accordingly, the Court finds that a genuine dispute of material fact exists regarding whether Plaintiffs modifications created a derivative design that warrants copyright protection.

c. Whether Plaintiffs Copyright for Admiral’s Walk Should Be Invalidated Because the Registration Certificate Failed to List the Correct Date of Creation or Designate the Author as a Work Made for Hire

Adirondack’s third argument is that Plaintiff is not the true author of the changes made to the Cambridge design because ADG dictated these changes to Plaintiff, who then incorporated them into the design. (Dkt. No. 110, at 8 [Adirondack’s Opp’n Mem. of Law].) In other words, Adirondack argues that the design was a “work made for hire.” (Id. at 6.) After carefully considering the matter, the Court is unpersuaded by this argument because “[a]n architect owns his drawings, unless expressly agreed otherwise by the parties!,]” and Adirondack has not provided or cited such an agreement. Kunycia v. Melville Realty Co., Inc., 755 F.Supp. 566, 572 (S.D.N.Y.1990). Furthermore, ADG did not provide an independently copyrightable contribution to the design because it merely communicated the changes to Plaintiff. See Sorenson, 96 F.Supp.3d at 362 (holding that “[defendant] did not translate any idea into a fixed, tangible expression entitled to copyright protection”). Although the changes were requested by ADG, Plaintiff, as an architect, used his training to incorporate the changes into the design while ensuring that they complied with New York State code. (Dkt. No. 93, Attach. 9, at 234:21-235:9 [Ranieri Dep.].) See also Sorenson, 96 F.Supp.3d at 363 (holding that architect was author of plans for condominium unit where owner provided architect with instructions and sketches concerning the layout but architect used his training and skills to create the detailed floorplan).

Finally, the Court does not find that Plaintiff committed a fraud on the Copyright Office by failing to list the correct date of creation on the copyright registration form. (Dkt. No. 110, at 5-6 [Adirondack’s Opp’n Mem. of Law].) “[O]nly the ‘knowing failure to advise the Copyright Office of facts which might have occasioned a rejection of the application constitute^] reason for holding the registration invalid.’ ” Eckes v. Card Prices Update, 736 F.2d 859, 861-62 (2d Cir.1984) (quoting Russ Berrie & Co., 482 F.Supp. at 988); see also Lennon v. Seaman, 84 F.Supp.2d 522, 525 (S.D.N.Y.2000) (stating that “[t]he party asserting fraud must establish ... that the inaccuracies were willful or deliberate”). Plaintiffs deposition testimony and affidavit indicate that any perceived error was inadvertent and innocent. (Dkt. No. 93, Attach. 10, at 322:5-22; 324:21-325:2 [Ranieri Dep.] [explaining that Plaintiff answered all questions presented on the copyright registration form and believed his answers were correct]; 321:16-19 [describing belief that design was created in 2005 based upon a review of the drawings and/or a contract]; Dkt. No. 109, Attach. 8, ¶ 38 [Ranieri Aff.].)

For the foregoing reasons, Plaintiffs motion for partial summary judgment with respect to liability for copyright infringement of his Admiral’s Walk design is denied, and Defendants’ respective motions for summary judgment seeking to dismiss this claim are denied, pending the Court’s consideration of the arguments below.

2. Whether Plaintiffs Designs Were Copied and Whether Such Copying Was Wrongful

After carefully considering the matter, the Court answers both of these questions in the affirmative, except with respect to Defendants Paul Hodorowski, J. Luk Construction, Lamb,' and Raymond, for the reasons set forth below.

a. Adirondack and Northstar

There is no dispute that Plaintiffs designs were copied. Instead, the parties dispute whether the use of these designs and/or copying was wrongful. “Once copying has been established, a plaintiff must next demonstrate that the copying was unlawful by showing that there is a substantial similarity between the protecti-ble elements in the two works.” Hogan v. DC Comics, 48 F.Supp.2d 298, 307 (S.D.N.Y.1999). “The appropriate test for substantial similarity is ‘whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.’ ” Sheldon Abend Revocable Trust v. Spielberg, 748 F.Supp.2d 200, 204 (S.D.N.Y.2010) (quoting Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 [2d Cir.2001]). “The copied elements of the work must be original and nontrivial to constitute improper appropriation.” Jean v. Bug Music, Inc., 2002 WL 287786, at *5 (S.D.N.Y. Feb. 27, 2002). Therefore, where “a work is an amalgamation of pro-tectible and unprotectible elements, a ‘more discerning’ ordinary observer test is employed ..., which requires that the court first filter out from consideration any non-protectible elements. The remaining, protectible elements are then analyzed for substantial similarity.” Sheldon, 748 F.Supp.2d at 204 (citing Knitwaves, Inc. v. Lollytogs, Ltd., 71 F.3d 996, 1002 [2d Cir.1995]). “Yet, infringement encompasses more than just literal copying. ... ‘Where the alleged infringer has misappropriated the original way in which the author has selected, coordinated, and arranged elements of his or her work,’ this too constitutes unauthorized copying.” Zalewski v. T.P. Builders, Inc., 875 F.Supp.2d 135, 147 (N.D.N.Y.2012) (Sharpe, J.) (quoting Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 66 [2d Cir.2010]), aff'd, 754 F.3d 95 (2d Cir.2014).

“[B]ecause the question of substantial similarity typically presents an extremely close question of fact ..., questions of non-infringement have traditionally been reserved for the trier of fact.” Gaito Architecture, 602 F.3d at 63 (internal citations omitted); see also Hoehling v. Univ. City Studios, Inc., 618 F.2d 972, 977 (2d Cir.1980) (noting that “summary judgment has traditionally been frowned upon in copyright litigation”). However, “it is entirely appropriate for a district court to resolve [the question of substantial similarity] as a matter of law, ‘either because the similarity between two works concerns only non-copyrightable elements of the plaintiffs work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.’ ” Gaito Architecture, 602 F.3d at 63 (quoting Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 [2d Cir.1983]).

C.B. Prime argues that the merger doctrine and the doctrine of “seenes-a-faire” preclude a finding that Defendants’ copying of Plaintiffs designs was unlawful. (Dkt. No. 98, Attach. 2, at 22-25 [C.B. Prime’s Mem. of Law].) In support of this argument, C.B. Prime relies on the Second Circuit’s recent decision in Zalewski, which affirmed Chief U.S. District Judge Gary L. Sharpe’s dismissal of an architect’s copyright claims. In Za-lewski, plaintiff, an architect, was retained to create home designs, which were inspired by a colonial style of architecture. Zalewski, 875 F.Supp.2d at 139-40. As in the present case, Zalewski’s business relationship with the project owner that hired him was eventually terminated and Zalew-ski alleged that the project owner continued to advertise and build homes based on his drawings. Zalewski, 875 F.Supp.2d at 139.

In dismissing Zalewski’s copyright claims, both Judge Sharpe and the Second Circuit focused on the issue of substantial similarity and whether Zalewski’s arrangement of unprotected elements in his designs had created an original, protectable whole. To this end, Judge Sharpe noted that the two designs had a “multitude of differences” as well as “some common features.” Id. at 153. However, Judge Sharpe ultimately found that “the overwhelming majority of the similarities can be attributed to the fact that both [Zalewski’s] and defendants’ works are heavily influenced by, and incorporate hallmark features of, Colonial architecture.... Any remaining similarities, of which there are few, are de minimus in light of the vast dissimilarities between the works.” Id. The Second Circuit agreed, noting that

[m]any of the similarities are a function of consumer expectations and standard house design generally. Plaintiff can get no credit for putting a closet in every bedroom, a fireplace in the middle of an exterior wall, and kitchen counters against the kitchen walls. Furthermore, the overall footprint of the house and the size of the rooms are “design parameters” dictated by consumer preferences and the lot the house will occupy, not the architect.

Finally, most of the similarities between [Zalewski’s] and Defendants’ designs are features of all colonial homes, or houses generally. So long as [Zalewski] was seeking to design a colonial house, he was bound to certain conventions. He cannot claim copyright in those conventions.

Zalewski, 754 F.3d at 106; see also Williams v. Crichton, 84 F.3d 581, 589 (2d Cir.1996) (affirming grant of summary judgment for copyright defendant because “any similarity in the theme of the parties’ works relates to the unprotectible idea of a dinosaur zoo,” and “[o]nce one goes beyond this level of abstraction, the similarity in themes disappears”).

The Court believes that Zalewski is distinguishable from the present case. As an initial matter, the Court notes that Plaintiffs designs do not appear to be influenced by, and incorporate hallmark features of, a particular style of architecture. indeed, Defendants do not argue that either Plaintiffs designs or their buildings were designed based upon a particular style, such as the colonial style discussed in Zalewski.

Moreover, unlike the defendants in Za-lewski, Defendants here have copied, with very limited exception, every aspect of Plaintiffs designs. The Second Circuit noted in Zalewski that “[o]nly very close copying would have taken whatever actually belonged to [Zalewski].... Copying that is not so close would-and in this case did-only capture the generalities of the style which [Zalewski] worked and elements common to all homes.” Id. at 107 (emphasis added); see also Zalewski, 875 F.Supp.2d at 148 (noting that “the narrow scope of protectable expression necessitates that plaintiffs show something akin to ‘near identity’ between the works in question to prevail”); Apple Comput., Inc. v. Microsoft Corp. 35 F.3d 1435, 1439 (9th Cir.1994) (holding that “the appropriate standard for illicit copying [of works compromised of only unprotectable or licensed elements] is virtual identity”); Feist, 499 U.S. at 349, 111 S.Ct. 1282 (requiring the “same selection and arrangement” to demonstrate infringement of a compilation). Here, Defendants do not argue that they copied only the unprotected “generalities” of Plaintiffs designs. Rather, the undisputed facts indicate that the buildings at Vly Point, Admiral’s Walk, and Jordan Point were built almost exactly from Plaintiffs designs.

More specifically, with respect to Vly Point, it is undisputed that Defendant Kaz-mierczak made only minor modifications to Plaintiffs design, including adding a master bedroom to certain units and a walkout basement. Similarly, the only changes made to the Admiral’s Walk design were to make it a five unit building instead of a ten unit building as well as modifying technical details to make the design “builda-ble.” In fact, Defendant Kazmierczak testified that he did not change the overall design intent of the building or the way that the building looked. (Dkt. No. 93, Attach. 13, at 34:10-36:3 [Kazmierczak Dep.].) With regard to Jordan Point, it is undisputed that Defendant Kazmierczak made only minor layout changes to Plaintiffs design as well as changes to the firewall protection but the layout “pretty much stayed the same.” (Id. at 40:19-41:2.)

Finally, the Court finds that the overall configuration of Plaintiffs designs meet the low threshold of creativity required for protection under the Copyright Act. During his deposition, Plaintiff gave detailed reasons as to why the overall configurations of the Vly Point and Patroon Point designs are uniquely his own, and the Court agrees. (Dkt. No. 93, Attach. 8, at 142:12-144:11 [Vly Point]; Dkt. No. 93, Attach. 9, at 167:24-169:3 [Patroon Point].) This evidence is both admissible and material. “While its components may look like those in many other modern homes, the [designs’] gestalb-its overall feeling, shape and arrangement of spaces, windows, and doors-help to distinguish it from those other homes.” Axelrod & Cherveny Architects, P.C. v. Winmar Homes, 05-CV-0711, 2007 WL 708798, at *11 (E.D.N.Y. Mar. 6, 2007). In response, once again, Defendants failed to submit admissible record evidence (such as an expert affidavit) controverting Plaintiffs evidence. Nor have they even pointed to other designs or styles that dispute the originality of Plaintiffs designs.

For all of these reasons, the Court finds that, based on the current record, a rational fact finder could conclude only that Defendants’ use of Plaintiffs. designs was wrongful. See Winmar Homes, 2007 WL 708798, at *13-14 (finding, as a matter of law, that two works were substantially similar where homes that were built were substantially similar, if not “virtually identical,” to designs).

b. Defendants Paul Hodorowski, J. Luk Construction Co., and Stephen Lamb

Plaintiff has failed to submit any evidence that Defendants Paul Hodorow-ski, J. Luk Construction Co., or Stephen Lamb committed any of the infringing acts. As discussed above, it is undisputed that Paul Hodorowski worked in the field doing punch-list items, served as the sales liaison for Vly Point, and served as both an estimator and sales liaison for Jordan Point. These positions do not suggest that Paul Hodorowski either copied, or was involved in the decisions to use, Plaintiffs designs. According to Adirondack’s responses to Plaintiffs interrogatories, Paul Hodorowski was not involved with the Admiral’s Walk project and Plaintiff has failed to submit evidence refuting this assertion. (Dkt. No. 93, Attach. 5, at Resp. to Interrog. No. 1 [Adirondack’s Resp. to Pl.’s Interrog.].) Similarly, although Paul Hodorowski is part owner of J. Luk Construction, Adirondack’s response to Plaintiffs interrogatories indicates that J. Luk Construction was not involved in any of the three projects. (Id.) Once again, Plaintiff has not argued or submitted evidence-to the contrary. While Paul Hodorowski eventually became part owner of Hodorow-ski Homes, this did not occur until sometime in 2012, which is well after Plaintiffs designs were copied.

With respect to Stephen Lamb, no evidence has been submitted regarding his involvement in the infringement activities. According to Plaintiff, Defendant Lamb is an independent contractor that “typically” stamped Defendant Kazmierczak’s designs. (Dkt. No. 93, ¶ 18 [Mead Aff.].) Nothing in Plaintiffs Amended Complaint or his opposition to Northstar’s motion suggests that Defendant Lamb stamped the designs at issue, or was otherwise involved, in the present case.

For these reasons, Plaintiffs copyright infringement claims are dismissed as to Defendants Paul Hodorowski, J. Luk Construction, and Stephen Lamb,

c. C.B. Prime and Defendant Raymond

C.B. Prime argues, in part, that it did not unlawfully copy Plaintiffs designs because it did not copy Plaintiffs technical drawings or use the drawings to construct a building. (Dkt. No. 98, Attach. 2, at 14-15 [C.B. Prime’s Mem. of Law].) Rather, C.B. Prime argues that it used only “very basic” drawings in its marketing materials. (Id.) However, “copyright protection extends to simplified floor plans, that is, promotional cut sheets, of copyright architectural plans.” John Wieland Homes & Neighborhoods, Inc. v. Poovey, 03-CV-0168, 2004 WL 2108675, at *5 (W.D.N.C. Aug. 2, 2004); see also Axelrod & Cherveny, Architects, P.C. v. T. & S. Builders Inc., 943 F.Supp.2d 357, 364 (E.D.N.Y.2013) (holding that “defendants’ copying of plaintiffs’ copyrighted floor plans from the Georgetown II Brochure for use in defendants’ advertisements and contracts of sale for homes with substantially similar designs constituted copyright infringement”); Arthur Rutenberg Corp. v. Parrino, 664 F.Supp. 479, 481 (M.D.Fla.1987) (holding that “[t]he Defendants’ argument [that copyright protection did not extend to simplified floor plan depicted on promotional brochure which was not registered independently of the actual plans] is without merit”); Imperial Homes Corp. v. Lamont, 458 F.2d 895, 899 (5th Cir.1972) (finding copyright protection extends to copies of floor plans contained in sales brochure, even when brochure itself was unregistered); accord, Donald Frederick Evans v. Cont’l Homes, Inc., 785 F.2d 897, 904-05 (11th Cir.1986). Accordingly, because it is undisputed that C.B. Prime used Plaintiffs drawings in its advertisements to market and sell the subject properties without Plaintiffs permission, C.B. Prime is hable for infringement, pending the Court’s consideration of C.B. Prime’s affirmative defenses below.

With respect to Defendant Raymond individually, the Court finds that Plaintiff has failed to submit admissible record evidence demonstrating that Defendant Raymond participated in, or had knowledge of, any infringing activity at the time Plaintiffs designs were being imper-missibly used for construction. Defendant Raymond testified at his deposition that he was responsible for marketing the properties and was not involved in the design or construction of Admiral’s Walk, Vly Point or Jordan Point. (Dkt. No. 100, Attach. 7, at 7:6-20; 12:18-13:19; 15:3-16:21; 21:7-17; 25:15-26:4; 28:8-12 [Raymond Dep.].) Furthermore, Defendant Raymond testified that he did not participate in selecting the building designs and was unaware of any issues concerning Plaintiffs designs or that they may have been used without permission. (Id. at 13:15-15:14; 18:21-19:16; 21:7-22; 23:14:20; 25:10-26:8; 31:3-18.)

In opposition to Defendant Raymond’s motion, Plaintiff argues that Defendant Raymond is vicariously liable for the infringement of his designs and that Defendant Raymond was aware of the infringing activity because he sent a cease- and-desist letter, dated July 17, 2008, to Capital Development Group. (Dkt. No. 109, Attach. 10, at 6-7 [Pl.’s Opp’n Mem. of Law].) Plaintiffs argument is flawed, however, because vicarious liability is a form of secondary liability and is not the equivalent of direct infringement. See Wu v. John Wiley & Sons, Inc., 14-CV-6746, 2015 WL 5254885, at *13 (S.D.N.Y. Sept. 10, 2015) (stating that, “[c]ourts in this Circuit routinely address contributory and vicarious copyright infringement as separate claims from direct infringement” and that, “in order to establish liability for contributory or vicarious copyright infringement, a plaintiff must first prove that direct infringement of its works occurred”). Finally, Plaintiffs cease-and-desist letter was addressed to the Town of Niskayuna and there is no evidence that it was also sent to Defendant Raymond or Capital Development Group. (Dkt. No. 101, Attach. 6, at 44-45 [Ex. “Y”].)

B. Whether Defendants Had Implied Non-Exclusive Licenses to Use Plaintiffs Designs

After carefully considering the matter, the Court answers this question in the negative for the reasons set forth below.

Defendants argue that Plaintiffs infringement claims must be dismissed because ADG had an implied non-exclusive license to (1) use Plaintiffs designs to complete the Vly Point and Admiral’s Walk projects after Plaintiffs employment was terminated, and (2) use Plaintiffs Patroon Point designs to build the first four buildings at Jordan Point. (Dkt. No. 110, at 8-14 [Adirondack’s Opp’n Mem. of Law]; Dkt. No. 101, Attach. 9, at 10-16 [Adirondack’s Mem. of Law]; Dkt. No. Dkt. No. 97, Attach. 15, at 3-4 [Northstar’s Mem. of Law]; Dkt. No. 98, Attach. 2, at 7-10 [C.B. Prime’s Mem. of Law].)

“A claim for infringement will fail if the challenged use of the copyrighted work is authorized by a license.” Wu v. Pearson Educ. Inc., 10-CV-6537, 2013 WL 145666, at *4 (S.D.N.Y. Jan. 11, 2013) (citing Graham v. James, 144 F.3d 229, 236 [2d Cir.1998]); see also Davis, 505 F.3d at 100 (holding that “[a] valid license ... immunizes the licensee from a charge of copyright infringement, provided that the licensee uses the copyright as agreed with the licensor”). “There are two general categories of licenses: non-exclusive licenses, which permit licensees to use the copyrighted material and may be granted to multiple licensees; and exclusive licenses, which grant to the licensee the exclusive right — superior even to the copyright owners’ rights — to use the copyright material in a manner as specified by the license agreement.” Davis, 505 F.3d at 99. “Under federal law, ‘nonexclusive licenses may ... be granted orally, or may even be implied from conduct.’ ” Graham, 144 F.3d at 235 (quoting 3