DUNCAN, Circuit Judge:
In this architectural copyright infringement action, Plaintiff-Appellant Humphreys & Partners Architects, L.P. ("HPA") appeals the district court's entry of summary judgment in favor of Defendants-Appellees Lessard Design, Inc., Lessard Group, Inc., and Christian J. Lessard
HPA is an architecture firm based in Dallas, Texas, that designs multi-family residential buildings. In 2000 and 2001, HPA designed a high-rise residential tower known as Grant Park. In 2003, HPA registered the Grant Park design as an architectural work with the United States Copyright Office and received a certificate of copyright registration. The Grant Park building was constructed in Minneapolis, Minnesota, in 2004.
Grant Park is a 27-story condominium building with 11 units per floor. It has two separate elevator cores, such that each floor has two elevator lobbies. The units on a typical floor open directly into these lobbies, five units into one and six into the other. The lobbies also each provide access to a stairwell and to either a trash chute or a mechanical/electrical room. Residents can travel between the lobbies through an unfinished service corridor, which allows all residents to access both utility rooms and both stairwells. This dual-core layout is desirable because it eliminates the need for a finished central hallway and fosters a sense of community among the units sharing a lobby.
In 2008, Penrose began developing a high-rise apartment building called Two Park Crest for construction in McLean, Virginia. In 2010, it solicited design proposals from three architecture firms, including HPA and Lessard, a firm based in Vienna, Virginia. HPA submitted illustrations of its Grant Park design in September 2010 and met with Penrose in October 2010.
On November 3, 2010, Penrose informed Lessard that it wanted the Two Park Crest design to feature dual elevator cores connected by a service corridor, and emailed Lessard the Grant Park floorplan to illustrate the concept. Later that month, on November 15, Lessard emailed Penrose a preliminary sketch of a design with two elevator cores; Penrose responded that the design was "looking good." J.A. 9033. Lessard ultimately submitted a design for a 19-story building with 17 apartments per floor. The design incorporated three elevator cores: two passenger elevator cores connected by an unfinished hallway, and a service elevator core accessible from that hallway. Of the 17 apartments per floor, 8 would open directly into one passenger elevator lobby and 9 would open directly into the other.
On November 17, 2010, Penrose told HPA that it had hired Lessard to design the Two Park Crest project. Penrose subsequently sold the project to Northwestern. In November 2011, Northwestern hired Clark to construct Two Park Crest.
In April 2013, HPA filed this action against Appellees
HPA argued in its motion and responses to Appellees' motions that Lessard copied the Grant Park design after receiving that design from Penrose. It claimed that the speed with which Lessard created the Two Park Crest design is direct evidence of copying, and that the similarities between the two designs is circumstantial evidence of copying. HPA supported its claim that the two designs are substantially similar with a declaration from architect and HPA expert Daniel Figert, who identified nine characteristics shared by both designs — for example, both designs are for multi-family buildings that are approximately twenty stories tall, that have two elevator lobbies connected by a service corridor, and that provide direct access to units from the elevator lobbies.
HPA also moved to strike Gresham's, Greenstreet's, and Carter's expert reports on the ground that those reports were inadmissible hearsay. In response, Appellees provided declarations from the experts verifying the contents of their reports and stating that they would testify at trial to the substance thereof. The district court then denied HPA's motions to strike, reasoning that the declarations, although belated, cured HPA's objection.
On September 2, 2014, the district court granted Appellees' motions for summary judgment. The court determined that summary judgment was appropriate because, among other reasons, (1) there was no direct evidence of copying, and (2) no reasonable jury could find that the Grant Park and Two Park Crest designs are extrinsically (i.e., objectively) similar.
The court held that the two designs are not extrinsically similar for two independently sufficient reasons. First, neither the nine features that Figert identified nor their arrangement in Grant Park is eligible for copyright protection. And second, those features are presented and arranged differently in the Two Park Crest design. With respect to the arrangement of the nine features in the two designs, the court
Before turning to HPA's arguments on appeal, we set forth the law governing architectural copyright infringement claims. "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). In 1990, Congress expanded the scope of "works of authorship" to include "architectural works," id. § 102(a)(8), by enacting the Architectural Works Copyright Protection Act (the "AWCPA"), Pub.L. No. 101-650, §§ 701-706, 104 Stat. 5089 (1990) (codified in various sections of 17 U.S.C.). The AWCPA defines an architectural work as "the design of a building as embodied in any tangible medium of expression." 17 U.S.C. § 101. "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." Id. The AWCPA's legislative history explains that the arrangement and composition of spaces and elements is protectable because "creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectible elements into an original, protectible whole." H.R.Rep. No. 101-735, at 18 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6949.
"To establish a claim for copyright infringement, a plaintiff must prove that it owned a valid copyright and that the defendant copied the original elements of that copyright." Lyons P'ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 801 (4th Cir.2001). "Copying can be proven through direct or circumstantial evidence." Bldg. Graphics, Inc. v. Lennar Corp., 708 F.3d 573, 578 (4th Cir.2013).
"Direct evidence of copying ... includes evidence such as party admissions, witness accounts of the physical act of copying, and common errors in the works of plaintiffs and the defendants." Rottlund Co. v. Pinnacle Corp., 452 F.3d 726, 732 (8th Cir.2006). In M. Kramer Manufacturing Co. v. Andrews, 783 F.2d 421 (4th Cir.1986), for example, we found direct evidence of copying where "[t]he computer programs in the record [were] virtually identical" and the defendants' program, like plaintiff's, included "a hidden legend that would appear only when the [program's] buttons were pressed in an abnormal sequence," id. at 446. Similarly, our sister circuits have found direct evidence of copying where a defendant "gave ... explicit instruction that [a] work be copied," Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.1992), and where the defendant admitted to copying the plaintiff's work, see, e.g., Enter. Mgmt. Ltd. v. Warrick, 717 F.3d 1112, 1120 (10th Cir. 2013); Soc'y of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 49 (1st Cir.2012).
"Where direct evidence of copying is lacking, [the] plaintiff may prove copying by circumstantial evidence in the form of proof that the alleged infringer had access to the work and that the supposed copy is substantially similar to the author's original work." Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350, 353-54 (4th Cir.2001). To show substantial similarity,
While we have applied this two-part substantial similarity test in a variety of copyright contexts, we have not expressly held in a published opinion that this test governs claims of architectural copyright infringement. The parties both argue, and the district court determined, that the extrinsic/intrinsic test governs. We agree, and therefore hold that "the two-part test for determining substantial similarity ... is applicable to a copyright infringement claim involving architectural works." Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg., LLC, 496 Fed.Appx. 314, 320 (4th Cir.2012); see also Bldg. Graphics, 708 F.3d at 580 n. 3 (stating in dicta that the court would apply the extrinsic/intrinsic test to a claim of architectural copyright infringement).
We turn now to HPA's arguments on appeal. HPA claims that the district court erred in three respects: by considering Appellees' expert reports when resolving the motions for summary judgment; by failing to credit HPA's direct and circumstantial evidence of copying; and by making various errors of copyright law. We consider each argument in turn.
We begin with HPA's argument that the district court erred by considering Appellees' expert reports, a claim we review for abuse of discretion. See Nader v. Blair, 549 F.3d 953, 963 (4th Cir.2008) (reviewing admissibility of affidavits at summary judgment stage for abuse of discretion); cf. EEOC v. Freeman, 778 F.3d 463, 466 (4th Cir.2015) ("We review a district court's decision to admit or to exclude expert evidence for an abuse of discretion.").
HPA maintains that, because these reports were "inadmissible hearsay," they were "not evidence upon which the court could grant summary judgment." Appellant's Br. at 25. Appellees respond that the district court acted within its discretion when considering the expert reports because those "reports were both sworn to in declarations filed in response to HPA's objection and the content of the reports would be admissible through the expert's testimony at trial." Appellees' Br. at 28. We agree with Appellees that the district court did not err by considering the reports.
"The court and the parties have great flexibility with regard to the evidence that may be used on a [summary judgment] proceeding." 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2721 (3d ed.1998). The court may consider materials that would themselves be admissible at trial, and the content or substance of otherwise inadmissible materials where the "the party submitting the evidence show[s] that it will be possible to put the information... into an admissible form." 11 James Wm. Moore et al., Moore's Federal Practice § 56.91[2] (3d ed.2015). If the nonmovant objects to the court's consideration of "material cited to support or dispute a fact," Fed.R.Civ.P. 56(c)(2), the
Here, the admissibility of the reports themselves is immaterial because Appellees "explain[ed] the admissible form that is anticipated." Id. Appellees submitted declarations made "under penalty of perjury" from the experts attesting that they "would testify to the matters set forth in [their respective] report[s]." J.A. 6367 (Greenstreet), 6392-93 (Carter); accord J.A. 6426 (Gresham). And "[s]ubsequent verification or reaffirmation of an unsworn expert's report, either by affidavit or deposition, allows the court to consider the unsworn expert's report on a motion for summary judgment." DG & G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576 F.3d 820, 826 (8th Cir.2009) (quoting Maytag Corp. v. Electrolux Home Prods., Inc., 448 F.Supp.2d 1034, 1064 (N.D.Iowa 2006)). HPA does not claim that the experts' declarations are deficient or that the experts' testimony would be inadmissible at trial. We therefore find no error in the district court's consideration of the experts' reports.
We turn now to HPA's argument that the district court failed to credit HPA's direct and circumstantial evidence of copying when granting summary judgment to Appellees. As the district court noted, summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "We review de novo a district court's award of summary judgment, viewing the facts in the light most favorable to the nonmoving party." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 276 (4th Cir.2015) (en banc).
HPA first argues that the district court "ignored HPA's evidence" when it "stated that there was no direct evidence of copying." Appellant's Br. at 52. HPA submits that "the development of Lessard's sketches establishes direct evidence of copying," id. at 53, particularly when viewed in concert with Figert's deposition testimony. Figert stated in relevant part: "It appears that rather than going through the normal iterative design process, that Lessard had a preconceived solution to the design." Id. (quoting J.A. 5195).
This evidence is not direct evidence of copying. That Lessard may have created its design with more speed and less revision than is typical in the industry is consistent with HPA's theory that Lessard copied its design, but it does not itself establish copying.
HPA next argues that the district court resolved disputed issues of fact in Appellees' favor and failed to credit HPA's evidence when considering whether the two designs are extrinsically similar.
The party moving for summary judgment "discharges its burden by showing that there is an absence of evidence to support the nonmoving party's case." Kitchen v. Upshaw, 286 F.3d 179, 182 (4th Cir.2002). If the movant discharges this burden, the nonmoving party must present "specific facts showing that there is a genuine issue for trial." Blair v. Defender Servs., Inc., 386 F.3d 623, 625 (4th Cir. 2004) (quoting White v. Rockingham Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir. 1987)). To create a genuine issue for trial, "the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence." Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.2013). In other words, a factual dispute is genuine only where "the non-movant's version is supported by sufficient evidence to permit a reasonable jury to find" in its favor. Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 175 (4th Cir.1988).
Here, Appellees carried their initial burden of "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support [HPA's] case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). They explained in their motions that no evidence suggests that Two Park Crest and Grant Park have a substantially similar overall form, or that the two designs arrange spaces and elements in a substantially similar manner. And Appellees submitted expert reports explaining why the two designs are dissimilar. Cf. Universal Furniture Int'l, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 435 (4th Cir.2010) ("The extrinsic inquiry is an objective one on which expert testimony may be relevant."). For example, Gresham explained in his report that, while both designs offer direct access to units from elevator lobbies, the "relation of the elevators to the apartment doors" is different in the two designs. J.A. 2326. "At Grant Park," Gresham wrote, "the elevators open into a discernible vestibule," such that a person standing in the lobby "can view six of the
The burden then shifted to HPA to document a substantial similarity between the protected elements of its design — i.e., Grant Park's overall form and arrangement of the nine individual features — and the Two Park Crest design. HPA claims on appeal that it carried this burden with the following evidence.
First, HPA relies on two declarations submitted by Mark E. Humphreys, HPA's founder and CEO. The only statements in these declarations relevant to substantial similarity are Humphreys's assertions that "[t]he Court can see that the two floor plans are very similar," and that "the Court can see that [the two buildings] have a very similar appearance." J.A. 5216. These statements are insufficient to create a genuine dispute of material fact because they are conclusory. See Dash, 731 F.3d at 311. Humphreys identifies no specific, objective similarity between the two designs to support his conclusion that the buildings' floorplans and appearances are similar.
Second, HPA identifies three declarations — from Robert Lux and David A. Hunt, both of whom worked with HPA on the Grant Park project, and Walter Hughes, HPA's Director of Design — describing the creation, originality, and benefits of the Grant Park design. These declarations do not create a genuine dispute for trial because none contains an assertion about the similarity between the Grant Park and Two Park Crest designs.
Finally, HPA relies on Figert's declaration and deposition testimony. Figert stated in his declaration that "[t]he two designs have an extrinsic similarity in that the ideas and expression of the ideas used in the projects have substantial similarities[,]... includ[ing] such things as building floor plan layout, exit circulation, building size, and composition of the major elements that make up the exterior expression of the designs." J.A. 5558. He also listed nine features shared by both designs — for example, the stairwells in both designs are located adjacent to elevator lobbies — and stated that these characteristics are "examples of the arrangement and composition of spaces and elements that represent substantially similar features of Humphreys' Grant Park design." J.A. 5560. And Figert stated in his deposition that the "the overall expression of the idea of those [nine] elements is very similar in the two projects." J.A. 5197.
Figert's declaration and deposition testimony are insufficient to show that the designs are extrinsically similar. Like Humphreys, Figert offered no specific similarity between the designs' overall form or arrangement of individual elements. He identified nine shared features and stated that these characteristics show that the two designs arrange and compose both spaces and elements in a substantially similar manner. But the mere presence of these nine features in both buildings does not create an issue for trial
At bottom, HPA failed to carry its burden of identifying a specific similarity between the Two Park Crest design and the protected elements of its Grant Park design. The evidence, viewed in the light most favorable to HPA, shows that the Two Park Crest and Grant Park designs incorporate nine of the same concepts. But it does not establish that the two designs have a similar overall form, or that the designs arrange or compose elements and spaces in a similar manner. Accordingly, because HPA failed to present nonconclusory evidence that the designs are extrinsically similar, we reject HPA's claim that the district court failed to credit its extrinsic-similarity evidence.
We conclude by addressing HPA's claim that the district court misapplied relevant copyright law in three respects.
First, HPA argues that the district court erroneously declined to consider whether the Two Park Crest design arranges unprotected elements in a substantially similar manner to the arrangement of those elements in the Grant Park design. This argument mischaracterizes the district court's reasoning. The district court began its analysis by considering whether any of the nine features Figert identified were themselves protectable. But the court did not stop there; it also considered whether, "notwithstanding the fact that the nine features [HPA] relies on do not warrant protection under the AWCPA, ... the arrangement of those features is substantially similar in the Grant Park and Two Park Crest designs." Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 43 F.Supp.3d 644, 676 (E.D.Va. 2014). And, contrary to HPA's assertion here, the district court did not exclude any feature from this analysis. Rather, the court concluded that no reasonable jury could find the two arrangements similar because, among other reasons, "the overall footprints of the two designs are highly different," and the two designs "have a different shape, size, and exterior appearance." Id. at 677.
Second, HPA claims that the district court erred in various respects by finding that the allegedly copied aspects of the Grant Park design are not eligible for copyright protection. We need not reach this argument because the district court also held that, even if those aspects were protected, Appellees are not liable to HPA because they did not copy them. This holding, which we affirm today, is sufficient to support the judgment.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.