C. Summary Judgment Should Be Denied Because No Relief Can Be Granted on the Copyright Claim,
As a Matter of Law.
The final reason why summary judgment should be denied is that the evidence in the record
demonstrates, as a matter of law, that there is no relief that can be granted in this matter. There
is no possibility of injunctive relief because the alleged infringement was discontinued several
months before the action was brought, and there is no evidence that there is any likelihood that the
infringement will begin again. Indeed, Mishkoff's counsel advised Taubman's counsel, when they
sought his consent to their motion of leave to amend the complaint, that Mishkoff would not return
the copyrighted graphics to the Internet even if he won the trademark claims in this case. Nor is
there any claim for statutory damages, because the copyright was registered after the infringement
had ceased. Although a copyright owner may bring an action for infringements of a copyright
committed pre-registration, only actual damages may be obtained. Finally, there is no possibility
of actual damages, because Taubman has forsworn any claim for its own lost profits, and because
Mishkoff has averred in his sworn responses to interrogatories that he derived no revenues and no
business from the infringement. Answers to Interrogatory Nos. 1 and 7 (attached). Nor has plaintiff
submitted any evidence to contradict that evidence. And, in the absence of gross revenues, there
cannot be any profits for plaintiff to recover. Consequently, this is a claim on which no relief can
be granted, and summary judgment for plaintiff would therefore be improper.
CONCLUSION
Consideration of the motion for summary judgment should be deferred until Mishkoff has been able
to complete his discovery from Taubman and third parties, or, in the alternative, summary judgment
should be denied outright.
Respectfully submitted,
Barbara Harvey (P25478)
Suite 3060
Penobscot Building
645 Griswold
Detroit, Michigan 48226
(313) 963-3570
Paul Alan Levy
Allison M. Zieve
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
Attorneys for Defendants
July 18, 2002
