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 Civil Action No. 01-72987
 Honorable Lawrence P. Zatkoff
WEBFEATS and HENRY MISHKOFF, Magistrate Judge Komives


  1. My name is Henry Mishkoff. I am the defendant in this action. I submit this affidavit to explain why summary judgment should not be granted on Count IV of the complaint until I have had the opportunity to take needed discovery to respond to that motion.

  2. After the Court granted leave for the plaintiff to amend its complaint to add Count IV, alleging that I had infringed its copyright, I understand that my counsel served interrogatories and requests to produce seeking information about the basis for the copyright claims and seeking evidence to bolster my claim that I made fair use of the two graphics that are at issue in this case.

  3. Because Taubman did not provide substantial answers to the interrogatories and requests to produce, objecting to most of them and providing only sketchy and evasive answers to most of the rest, I have moved to compel complete answers; I have also asked the Court to defer the trial on the merits to permit that discovery to be completed. I attach a copy of the memorandum in support of that motion and my recently-filed reply brief, which contain a more complete statement of the reasons why I believe discovery is needed.

  4. I believe that Taubman used these two graphics, among other things, for the purpose of advertising their mall, and that Taubman encouraged the copying of the graphics. For example, I have found on the portion of the official Taubman web site devoted to The Shops at Willow Bend a page that urged viewers to download a document that included a drawing of the main court of The Shops at Willow Bend. Copies of the page urging the download and the underlying document were provided to plaintiff in discovery, and are attached as Exhibit 1. Moreover, I found another web page, on the web site of Shopping Centers Today, displaying that same drawing of the main court of The Shops at Willow Bend; a copy of that page is attached as Exhibit 2. I contacted Shopping Centers Today to ask how it got that graphic, and was told that it was probably obtained from a press kit issued by the developer, but that the kit itself would not have been retained. Because I cannot obtain the press kit from Shopping Centers Today, I need discovery from the source, from Taubman, to verify this statement. That is one reason why I have asked in discovery for all communications by Taubman about the mall - there is good reason to believe that Taubman disseminated this graphic, and probably other graphics including the map that I copied, in the hope that they would be reproduced and thus would encourage viewers to visit the mall.

  5. During my deposition, I testified to my recognition that it would have been more correct to have asked specific permission to copy the graphics. I do not believe that this testimony is inconsistent with my belief that Taubman has extended a general permission to copy the map of the mall, the drawing of its main court, and other materials that it was using to help publicize its mall. I ask the Court to defer ruling on the motion for summary judgment to give me the opportunity to discover such evidence.

  6. I also believe that my use of the two graphics was completely consistent with Taubman's own use of the graphics, and of the larger work of which the two graphics are undoubtedly a part, and ask that I be given the opportunity to take discovery to prove that.

  7. One of the reasons given by Taubman for refusing to provide me with copies of other graphics prepared for it by JPRA and Associates, either in connection with The Shops at Willow Bend or in connection with other projects, is that there is a large volume of such material. Indeed, even as shown as part of the Taubman web sites from which I obtained the graphics, the two items are just one small part of a large web site. I believe it is a fair inference that the two graphics that I copied are just one small part of a large work. Moreover, Taubman's web sites bear copyright notices dated both 2000 and 2001, and identifying Taubman as the owner of that copyright. This further demonstrates that the graphics that I copied are part of a large work whose copyright is owned by Taubman. I ask the Court to defer ruling on the motion for summary judgment until I have had the opportunity to conduct discovery to identify the overall work of which the two graphics are a part.

  8. I have also sought discovery to determine whether Taubman's claim to own the copyright is valid. Comparing the copyright registration document that was attached to the complaint with the assignment that was belatedly provided in discovery, I find that at the time Taubman registered the copyright, it had not yet been assigned the copyright. The copyright application, however, represents that Taubman owns the copyright by assignment from an entity called JPRA and Associates. I also note that the name of the two graphics as stated in the copyright registration is slightly different from the name given in the assignment. No copies were attached to the assignment, leaving the question whether the graphics that were assigned were the same as the graphics that were registered. It also seems possible that what was assigned was the entirety of all artwork prepared in connection with The Shops at Willow Bend; if so that would reinforce my point that what I copied was just a small part of the total. These are all matters that I would explore through discovery, after Taubman provides me with the name, address and telephone number of the persons who executed and received the assignment.

  9. The registration document asserts that JPRA and Associates owned the original copyright in the two graphics because they were created for it as works for hire. In order to test that assertion, I need to be able to take discovery from JPRA and Associates and its relevant witnesses. Taubman's refusal to identify the person executing the assignment and to furnish his address and telephone number impeded my discovery efforts in this regard as well.

I hereby certify under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct. Executed on July 17, 2002.

Henry Mishkoff

Next: The Discovery Hearing

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