GOLDBERG, Judge:
Plaintiff Home Design Services, Inc. ("Home Design") has sued Defendants
Home Design registered HDS-2089 with the Copyright Office in August 1991. Turner created the Laurent plan in 1999, and thereafter slightly modified the Laurent to create the Dakota. Both HDS-2089 and the Laurent depict what is known as a "four-three split plan": a four-bedroom, three-bathroom house with a "master" bedroom or suite on one end and three more bedrooms on the other. The plans, which are attached as an appendix, share in common the same set of rooms, arranged in the same overall layout. The plans also share the presence, location, and function of many (but not all) walls, entryways, windows, and fixtures.
Before this case went to trial, Turner moved for summary judgment, arguing that the Turner plans did not infringe on HDS-2089 because the plans were not "substantially similar" when it came to HDS-2089's copyright-protectable expression. The district court denied summary judgment, holding that while there [are] an abundance of small differences in areas of protectable expression, including the heights of walls, placement of windows, and the number of doors in some entryways, there are also myriad similarities in areas of protectable expression, including the arrangement and location of rooms, the unusual angle of the kitchen sink, the placement of the master bedroom and garage, and the common foyer at the entrance between the living and dining rooms. As a result of these many differences and many similarities in the areas of protectable expression, the [c]ourt is unable to conclude that, as a matter of law, no reasonable jury could find the works to be or not to be substantially... similar.
At trial, the district court heard testimony regarding HDS-2089 and the Turner plans. James Zirkel, Home Design's chief executive officer, compared HDS-2089 to the plan for the third Laurent home that Turner built. (Turner built over 160 homes using either the Laurent or Dakota plan.) Zirkel deemed the plans similar "except for a few minor parts," and specifically identified the layout of the rooms as shared. Zirkel classified as "minor" the differences between the plans' fireplace placements, orientation of water closets, and shape of living-room wall. (The Laurent's living room has a squared wall abutting the family room and foyer, while HDS-2089's has an angled wall.) Zirkel also conceded the following "numerous small changes, but not major changes," some of which he classified as "options":
HDS-2089 Laurent Plan Generally
Front Door Double front door Single front door
Front Porch Projects beyond front bedroom and Flush with front bedroom and garage
garage
Foyer Opens onto living spaces either Archways and columns leading into
without archways or columns living spaces
HDS-2089 Third Laurent Home
Back Hallway Squared entry; sliding pocket door Archway entry
Pool Bathroom Linen closet No linen closet
Master Bedroom Flat, ten-foot ceiling; plant shelves; Vaulted ceiling; no plant shelves;
windows have different sizes and windows have different sizes and
locations locations
Living Room Twelve-foot ceiling; windows have Ten-foot ceiling; windows have
different sizes and locations different sizes and locations
Secondary Different ceiling heights; windows in Different ceiling heights; windows in
Bedrooms rearmost secondary bedroom have rearmost secondary bedroom have
different sizes and locations different sizes and locations
Nook Symmetrical angled walls with one Asymmetrical angled walls with two
window and a soffit windows
Kitchen Smaller than Laurent; no desk; Larger than HDS-2089; built-in
dishwasher in different location desk; dishwasher in different
location
Master Bathroom Water closet orientation creates Water closet orientation creates
narrower space at end of deeper space at end of kitchen/nook
kitchen/nook hallway; larger shower hallway; smaller enclosed shower
with walk-in area
Master Closet Four inches narrower Four inches wider
On cross-examination, Turner asked Zirkel about the originality of HDS-2089. Zirkel confirmed that HDS-2089 is a split plan, and that at the time that Home Design created HDS-2089 approximately seventy percent of the builders he dealt with were requesting split plans. Later in the trial, Home Design introduced the deposition testimony of the Home Design employee who drafted HDS-2089. According to the employee, "there's nothing fancy about [HDS-2089]. It's been done over and over again in different variations and iterations. It's a 3-1 split,
Turner also asked Zirkel to compare HDS-2089 to two plans that Home Design had created at an earlier date, the HDS-2041 and the Timberwood. Turner's theory was that the same similarities Zirkel had identified between HDS-2089 and the Turner plans also surfaced when comparing HDS-2089 to its predecessors. Zirkel confirmed that HDS-2041 and HDS-2089 share the same layout in terms of room location, but differentiated HDS-2041 based on differences in configuration. Zirkel also testified that HDS-2089 and the Timberwood "are not substantially similar. They are not strikingly similar. They are a four-bedroom split plan."
Home Design's expert Kevin Alter compared HDS-2089 to the Laurent and Dakota plans, describing the plans as "extraordinarily similar." Alter noted that "the
Although Alter acknowledged "modest differences" among the plans he compared, he also highlighted some mutual unusual design choices. On both HDS-2089 and the Turner plans, the partition dividing the kitchen and the family room does not extend all the way to the ceiling, but instead falls two feet short. Furthermore, the master bedrooms are oddly spacious for plans that are otherwise arranged efficiently. The master bedroom on both plans also includes an angled wall that makes furniture placement awkward. And the master closet opens onto the master bathroom, not the bedroom, which Alter described as "a little bit unusual" and "not ideal." Finally, the Laurent plan includes the same thick bathroom wall as the HDS-2089, even though only HDS-2089 has its plumbing arranged so that the thick wall is necessary. Besides identifying these unusual design choices, Alter classified certain differences between the plans, like the placement of the fireplace, as "after-thoughts."
On cross-examination, Turner pressed Alter on the originality of HDS-2089. Alter conceded that HDS-2089 "does not appear unusual" and is not "radically different [from] the many things that are on the market." Alter further allowed that HDS-2089 featured many industry-standard design choices, including the adjacency of the dining room and breakfast nook to the kitchen, the split arrangement of the master bedroom along one exterior wall and the secondary bedrooms along the other, and the dimensions of the secondary bedrooms.
Turner then rebutted with the expert testimony of Robert Koch. Koch began by reviewing the industry standards governing the overall layout of a four-three split plan, and describing the various considerations that drove the standards. Koch then identified numerous plans, including but not limited to HDS-2089 and the Turner plans, that shared an overall layout reflecting industry standards.
HDS-2089 Laurent (Koch version) Front Porch Small porch; different configuration "[V]ery expensive front porch that and columns reache[s] from the front door all the way over [to] the bedroom ... on the opposing side"; different configuration and columns Front Door Double doors Single door Foyer No cased openings or headers above Formal cased openings to living the walls in the foyer separating room and dining room living room and dining room Family Room Modern sliding-glass door; Fireplace Traditional French doors; formal not located to accommodate a flat-screen windows; Fireplace located to screen television accommodate a flat-screen television Back Porch/Patio Patio; backdoor to patio swings Porch; backdoor swings inward outward Nook Contiguous glass partition Separate windows Master Bedroom Double doors; single high window Single door to restrict views into located above headboard bedroom; formal, conventionally located windows Hallways Different dimensions and openings Different dimensions and openings Master Bathroom Opening to master bedroom; water Door to master bedroom; water closet orientation creates shallower closet orientation creates deeper space at end of kitchen/nook space at end of kitchen/nook hallway; toilet not obscured from hallway; toilet obscured from view; view; linen closet separates water linen closet separates bathtub and closet and shower; doorless shower shower; traditional shower door Garage Door to laundry room swings inward Door to laundry room swings outward Kitchen Desk next to range; wall separating Cabinetry next to range; wall kitchen and family room does not separating kitchen and family room extend to ceiling extends to ceiling Secondary Different style countertops and Different style countertops and Bathroom access to water closet access to water closet Pool Bathroom Linen closet No linen closet Secondary Different windows and dimensions Different windows and dimensions Bedrooms Living Room Different ceiling height; angled wall Different ceiling height; squared wall separating living room and family separating living room and family room room
Koch also drew a global distinction between the HDS-2089 and the Laurent in terms of their elevations. Finally, Koch compared HDS-2089 to one of Turner's Dakota plans, and identified a slew of other differences. (Given the variety in Turner plans, Koch agreed that different Turner plans would have different differences with respect to HDS-2089.)
The jury returned a verdict in favor of Home Design, finding that the Turner plans infringed on HDS-2089 and awarding Home Design $127,760 in damages. Turner moved for judgment as a matter of law under Rule 50(b). According to Turner, no reasonable jury could have found the Turner plans "substantially similar" to HDS-2089.
The district court granted Turner's Rule 50(b) motion. At the outset, the district court recounted Koch's testimony regarding the "numerous, material" differences between HDS-2089 and the Laurent, as well as Koch's generalization that these
Accordingly, the district court granted Turner's Rule 50(b) motion, and instructed the clerk to enter judgment against Home Design.
On appeal, Home Design contests the district court's judgment notwithstanding the jury's verdict. According to Home Design, a reasonable jury could and did find that the Turner plans were "substantially similar" to HDS-2089. After considering Home Design's appeal, we affirm.
The district court had jurisdiction pursuant to 28 U.S.C. § 1338(a) (2012) and 28 U.S.C. § 1331. We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court's ruling on a motion for judgment as a matter of law de novo. Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713, 723 (11th Cir. 2012). "Under Rule 50, a court should render judgment as a matter of law when ... there is no legally sufficient evidentiary basis for a reasonable jury to find for [the nonmoving] party." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000) (citation omitted). The court reviews "all the evidence, drawing all reasonable inferences in favor of the nonmoving party." Hubbard, 688 F.3d at 724.
Copyright infringement has two elements: "(1) ownership of a valid copyright, and (2) copying of [protectable] elements." Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1325 (11th Cir. 2012) (alteration in original) (quoting Oravec v. Sunny Isles Luxury Ventures, LLC, 527 F.3d 1218,
The back end of this formula ("level of protected expression") is meaningful, because not every nook and cranny of an architectural floor plan enjoys copyright protection.
Second, and more concretely, the Copyright Act restricts which elements of architectural floor plans are protectable through its definition of a copyrightable "architectural work." 17 U.S.C. § 101 defines an "architectural work" as "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." According to legislative history, "individual standard features" include "common windows, doors, and other staple building components." H.R. Rep. No. 101-735 (1990), as reprinted in 1990 U.S.C.C.A.N. 6935, 6949. The upshot of the idea-expression distinction and the statutory definition of "architectural work" is that, "while individual standard features and architectural elements classifiable as ideas are not themselves copyrightable, an architect's original combination or arrangement of such [elements] may be." Oravec, 527 F.3d at 1225.
In Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., we likened the statutory definition of "architectural work" to that of a "compilation." 554 F.3d 914, 919 (11th Cir. 2008). Based on the similarity, we concluded that architectural works received the same "thin" copyright protection awarded to compilations (as opposed to the "thicker" protection we would afford creative or derivative works). Id. at 919-20 & n. 3. "Thus, when viewed through the narrow lens of compilation analysis[,] only the original, and thus protected[,] arrangement and coordination of spaces, elements[,] and other staple building components should be compared." Id. And we also took the opportunity to explain why it is appropriate for judges to rule out substantial
Id. at 920 (citation omitted).
Turning to the particular floor plans at issue in Intervest, we concluded that no reasonable jury could deem them substantially similar at the level of protected expression. Although the floor plans shared the same general layout, the district court had identified and "focused upon the dissimilarities in [the] coordination and arrangement" of "common components and elements." Id. at 916, 922 app. In the abstract, the differences identified by the district court might come across as modest: The district court pointed out minor dimensional discrepancies between the plans' rooms, slight changes in the presence, arrangement, or function of various features, incremental modifications to a number of walls, and a smattering of other dissimilarities. Id. at 916-18. Yet the district court ruled that these differences precluded a finding that the floor plans were substantially similar at the level of protected expression, and we affirmed. Id. at 921.
In Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (2d Cir. 2014), the Second Circuit voiced its agreement "with the out-come in Intervest, [but not] with its reasoning." Id. at 103. According to the Second Circuit,
Id. at 104 (citation omitted). The Second Circuit's critique of Intervest demonstrates a difference between how we have described our copyright-infringement doctrine versus how they do. In the Second Circuit, a court can rule out copyright infringement as a matter of law "either because the similarity between two works concerns only non-copyrightable elements of the plaintiff's work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar." Id. at 102 n. 12 (quoting Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983) (emphasis omitted)). But the Eleventh Circuit declined to adopt a similar two-part framework in Oravec, on
The Second Circuit also used the first part of its framework to decide Zalewski. At the outset, the Second Circuit catalogued various unprotectable standard elements of architectural works:
Id. at 105. With respect to the floor plans before the Second Circuit in Zalewski, the court held that "even if Defendants copied Zalewski's [colonial home] plans, they copied only the unprotected elements of his designs." Id. at 106. The Second Circuit observed that many design similarities concerned uncopyrightable elements that were "a function of consumer expectations and standard house design generally" or "conventions" inherent to "all colonial homes." Id.
We agree with both the reasoning and outcome of Zalewski. If "the similarity between two works concerns only non-copyrightable elements," then there can be no copyright infringement as a matter of law. 754 F.3d at 102 n. 12. Customary styles and efficiency- or expectation-driven industry standards are not susceptible to copyright. Id. at 105. And when floor plans are drawn in a customary style and to industry standards, even "subtle differences" like those in Zalewski can indicate that there is no copyright infringement. Id. at 106-07.
We also agree that Intervest is best couched as holding that there was no copyright infringement because the floor plans at issue were similar only with respect to their noncopyrightable elements. Although the Intervest floor plans shared the same overall layout, the layout was not copyrightable in that case. See Intervest, 554 F.3d at 916, 922 app. And the chosen layout restricted "the variety of ways [the floor plans] c[ould] be divided into [four] bedrooms, [three] baths, a kitchen, a great room or living room, closets, porches, etc." Howard v. Sterchi, 974 F.2d 1272, 1276 (11th Cir. 1992). "Consequently, differences... weigh[ed] heavily against a finding of substantial similarity." Miller's Ale House, 702 F.3d at 1326. Because the layouts were noncopyrightable, and because the floor plans differed in terms of dimensions, wall placement, and the presence and arrangement of particular features (or use of slightly varied features), we held that the similarities between the plans concerned only their noncopyrightable elements. See Intervest, 554 F.3d at 916-18, 921. There was therefore no copyright infringement.
Intervest and Zalewski control this case. Although HDS-2089 and the Turner plans share the same general layout, this is only because both sets of plans follow the customary four-three split style, as well as the attendant industry standards. Kevin Alter, Home Design's own expert, conceded on cross-examination that HDS-2089's split-bedroom arrangement aligns with industry standards, as does the contiguity of the dining room, breakfast nook, and kitchen. Alter further characterized HDS-2089 as neither "unusual" nor "radically different [from] the many things that are on the market." No one, including Home Design, owns a copyright to the idea of a four-three split style, nor to the industry standards that architects regularly heed to achieve such a split. Cf. Zalewski, 754 F.3d at 105-06.
It might be objected that, here, HDS-2089 and the Turner plans share unusual design choices that disrupt the customary four-three split style and constitute protectable expression. Of the finite number of ways to permute a rectangle into a four-three plan, some ways may involve unique or unusual design choices. To the extent that a four-three plan departs from customary style and industry standards and espouses unusual design choices, those choices may constitute protectable expression. After all, the Copyright Act protects "original works of authorship," including the "arrangement and composition of spaces and elements" in a floor plan. 17 U.S.C. §§ 101-102.
The problem for Home Design is that the design choices in HDS-2089 are not unusual. Alter noted that both HDS-2089 and the Turner plans showcase a kitchen-family-room partition that fails to couple with the ceiling, an oddly spacious and angled master bedroom, a master closet that opens onto the master bathroom (instead of the bedroom), and a thick bathroom wall, despite the fact that only HDS-2089 has plumbing that requires such a sturdy wall. But, again, Alter outright said that HDS-2089 is not "unusual." He further stated that HDS-2089 is not "radically different [from] the many things that are on the market." We therefore conclude that the design choices identified by Alter are not unusual, but humdrum.
In light of the constraints imposed by a four-three split style, the differences between HDS-2089 and the Turner plans demonstrate the absence of copyright infringement. The differences between HDS-2089 and the Turner plans are differences in dimensions, wall placement, and the presence, arrangement, and function of particular features around the house. Because the same sorts of differences indicated no infringement in Intervest, that result follows in this case as well. See Intervest, 554 F.3d at 916-18.
Home Design implores us to depart from Intervest insofar as it "suggests that judges are better equipped than juries to apply the substantial similarity test to architectural works at the summary judgment stage." Home Design "respectfully submit[s] that Intervest's assumption about a district court's superior ability to identify protected features of an architectural work should be revisited." After all, Home Design reminds us, "[J]udges are not generally students of architecture. Nor are they, by their position, smarter than jurors."
Home Design also distinguishes Intervest from this case in terms of procedural posture. One postural distinction is that, in Intervest, we reviewed the district court's grant of summary judgment. No jury verdict was involved. By contrast, in this case, we review the district court's grant of judgment notwithstanding the jury's verdict. A second difference is that, in this case, the district court denied Turner's prior motion for summary judgment before changing course following the jury's verdict. According to Home Design, one or both of these differences portend a change in result.
We are not convinced. Although we agree with Home Design that judges are neither architecture students nor bestowed by rite with special intelligence, we stand by the core premise that judges can, in certain cases, remove the question of substantial similarity from jury consideration. We have repeatedly sanctioned summary judgment determinations that one architectural work does not infringe on another as a matter of law. Miller's Ale House, 702 F.3d at 1326; Intervest, 554 F.3d at 920-21; Oravec, 527 F.3d at 1223; Beal v. Paramount Pictures, Corp., 20 F.3d 454, 459-60 (11th Cir. 1994). This practice should be unremarkable to all: The whole purpose of summary judgment and judgment as a matter of law is to allow judges to remove questions from the jury when the evidence can support only one result. And we have further held that identifying floor plans' unprotected portions is a question of law. See Intervest 554 F.3d at 919-20. We are not alone: Zalewski squarely backs this holding. Cf. Zalewski, 754 F.3d at 102. Interpreting the law is for a judge, not a jury. If a judge concludes that floor plans are drawn in a customary style and to industry standards, then differences between the floor plans can relegate the plans' similarities to the level of noncopyrightable elements. A judge faced with such a situation can and should remove substantial similarity from the jury, just as the district court did below.
For the foregoing reasons, we affirm the district court's judgment notwithstanding the jury's verdict.
ROSENBAUM, Circuit Judge, concurring:
I agree with the panel's conclusion that our decision in Intervest Construction, Inc. v. Canterbury Estate Homes, Inc. ("Intervest"), 554 F.3d 914 (11th Cir. 2008), drives this case and requires affirmance of the district court's entry of judgment under Rule 50. But I think that Intervest represents a wrong turn in our Circuit's copyright jurisprudence. Specifically, Intervest holds that judges are necessarily better able than juries to resolve whether the "average lay observer" would find "substantial similarity" between two architectural works. But we ask juries to answer this same question in all kinds of other copyright cases. Because I do not see a basis for exempting copyright cases involving architectural works from jury trials simply because the question of "substantial similarity" may be close, I respectfully disagree with Intervest and would steer clear of its holding, were we not bound by it.
To establish copyright infringement, a plaintiff must prove (1) that it owns a valid copyright and (2) that the defendant copied original — meaning "protectable" — elements of the work. Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1223 (11th Cir. 2008). As the Supreme Court has explained, "The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S.Ct. 1282, 1289, 113 L.Ed.2d 358 (1991).
Where, as here, a plaintiff lacks direct proof of copying, the plaintiff may establish the element of copying by showing that the defendant "had access to the copyrighted work and that the works are `substantially similar.'" Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1248 (11th Cir. 1999). The test for "substantial similarity" is not at all technical. To the contrary, "substantial similarity" exists where "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Original Appalachian
Because a copyright owner holds the rights to only those portions of his or her work that are original, the copyright owner must demonstrate "both [that] the similarities between the works are substantial from the point of view of the lay observer and [that] those similarities involve copyrightable material." Oravec, 527 F.3d at 1224 (internal alteration omitted); see id. n. 5. In other words, the "substantial similarity" must exist at "the level of protected expression." Id. at 1227.
Whether two works are "substantially similar" at the level of protected expression seems to me to be an inherently subjective and fact-bound inquiry. "At the most narrow, focused level, two works will almost always be distinguishable, and at the broadest level of abstraction they will almost always appear identical." Baby Buddies, Inc. v. Toys R Us, Inc., 611 F.3d 1308, 1316 (11th Cir. 2010). As a result, "[l]ists of similarities between the two works are inherently subjective and unreliable, particularly where the list contains random similarities, and many such similarities could be found in very dissimilar works." Herzog, 193 F.3d at 1257 (internal quotation marks omitted).
Indeed, long ago, Judge Learned Hand explained why the "substantially similar" inquiry will nearly always be subjective and ad hoc:
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930). Because "substantial similarity is an extremely close question of fact" the determination of which is by necessity subjective and ad hoc, "summary judgment has traditionally been frowned upon in copyright litigation." Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1232 (11th Cir. 2010) (internal citation omitted); see also Peter Letterese and Assocs., Inc. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1302 (11th Cir. 2008) ("Historically, courts have hesitated to make determinations as to infringement or non-infringement on a summary judgment motion because of their reluctance to make subjective determinations regarding the similarity between two works." (internal quotation marks and alteration omitted)).
Nor is the question of whether "substantial similarity" exists at the level of "protectable expression" a question unique to copyright actions involving architectural works. Rather, it is one that we must answer in every copyright action, regardless of whether the object of the copyright is a book, a piece of artwork, or an architectural work.
Books and movies, for example, often include non-copyrightable elements such as scènes à faire — "sequences of events which necessarily follow from a common theme," or "[i]ncidents, characters, or settings that are indispensable or standard in the treatment of a given topic." Herzog, 193 F.3d at 1248. So in cases involving those media, juries regularly must separate the unprotected elements from those that are copyrighted before determining whether "substantial similarity" exists between the original and the alleged copy.
In Intervest, however, we departed from the rule of having juries decide the inherently fact-bound issue of whether two works are "substantially similar" and crafted a new rule for cases involving "architectural works." 554 F.3d at 920-21. Specifically, we held that judges are generally better able to conduct this inquiry at summary judgment than jurors are at trial. Id. at 919-20.
In arriving at this new rule, we first opined that the Copyright Act of 1976's definition of "architectural work" "closely parallels that of a `compilation'"; so, as with compilations, "any similarity comparison of [architectural works] ... must be accomplished at the level of protected expression — that is, the arrangement and coordination of" "common windows, doors, and other staple building components." Id. at 919. Based on this analogy, we cited the Supreme Court's decision in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349, 111 S.Ct. 1282, 1289, 113 L.Ed.2d 358 (1991), for the proposition that copyright protection in an architectural work, like a compilation, is "thin." Intervest, 554 F.3d at 919.
Then we opined that judges, not jurors, are best equipped to conduct the "substantial similarity" inquiry in cases involving architectural works. Id. at 920-21. We reasoned,
Id.
I think we lost our way in Intervest. While I agree with the majority that our decision in Intervest compels us to affirm the district court's decision in this case, I believe the unique rule we crafted for architectural works is unmoored from traditional copyright jurisprudence. I find no reason that survives scrutiny which warrants treating the "substantially similar" inquiry in copyright cases involving "architectural works" differently than the "substantially similar" inquiry in other copyright cases.
True, in Feist, the Supreme Court explained that the protection afforded factual compilations is "thin" in the sense that the raw materials of a compiler's medium — namely, facts — are not themselves copyrightable. 499 U.S. at 349, 111 S.Ct. at 1289. But this is just another way of saying that the factfinder must consider whether "substantial similarity" exists at the level of protectable expression — original content — only, and the amount of protectable expression relative to total content in a compilation is less than in a more original type of work. Whatever protectable expression a compilation contains, however, remains subject to the same copyright protection as the original content in all other types of copyrighted work. See id. at 349, 111 S.Ct. at 1290 ("[C]opyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. ... This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship.") (emphasis added).
Indeed, when Congress amended the Copyright Act to include "architectural works" in 1990, it did so because it recognized that "[a]rchitecture is not unlike poetry" and "concluded that the design of a work of architecture is [therefore] a `writing' under the Constitution and fully deserves protection under the Copyright Act." H.R. Rep. No. 101-735 (1990), as reprinted in 1990 U.S.C.C.A.N. 6935, 6941. Put simply, the protectable elements of an "architectural work," though they may be fewer and therefore "thin" relative to other works, are nonetheless entitled to the full protection of the Copyright Act.
So the "thinness" or "thickness" of protected expression in a type of work merely defines the frame of reference for the "substantial similarity" inquiry. See Oravec, 527 F.3d at 1224 (explaining that the similarity inquiry targets the similarity between the protectable expression of a copyrighted work and the expression in an allegedly infringing work). But once we are looking at protectable expression, I see no meaningful difference in the substance of the "substantially similar" inquiry applicable to works entitled to "thick" protection, such as novels, and that inquiry applicable to works entitled to "thin" protection, such as architectural works. Regardless of the type of work at issue, a copyright plaintiff will always be required to demonstrate substantial similarity "at the level of protected expression." Id. at 1227.
To the extent that Intervest suggests that the protectable expression in an architectural plan is somehow subject to less protection than the protectable expression in any other kind of copyright-protected content, the Second Circuit aptly summed up the problems with our approach in Intervest:
Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 104 (2d Cir. 2014).
But the most troubling aspect of our decision in Intervest is our conclusion that judges are more able to conduct the inherently factual and subjective "substantially similar" inquiry in architectural-works cases than jurors. Intervest, 554 F.3d at 920-21. I respectfully disagree with this determination.
The Seventh Amendment guarantees parties like Turner a jury trial. While the Copyright Act does not explicitly provide copyright plaintiffs a right to a jury trial, it does permit plaintiffs to recover either actual or statutory damages for violations of the Act. 17 U.S.C. § 504. And when a plaintiff seeks to recover either actual or statutory damages under the Act, the Seventh Amendment guarantees that plaintiff a right to a jury trial. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355, 118 S.Ct. 1279, 1288, 140 L.Ed.2d 438 (1998); see id. at 346, 118 S.Ct. at 1284.
The Seventh Amendment, in turn, requires, where it applies, "that enjoyment of the right of trial by jury be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with." In re Peterson, 253 U.S. 300, 310, 40 S.Ct. 543, 546, 64 L.Ed. 919 (1920). Of course, it has long been recognized "that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant" without violating the Seventh Amendment. Randall v. Baltimore & O.R. Co., 109 U.S. 478, 481, 3 S.Ct. 322, 324, 27 L.Ed. 1003 (1883); see also Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 585, 43 L.Ed. 873 (1899) ("`Trial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions, ... is a trial by a jury of 12 men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and ... to set aside their verdict, if, in his opinion, it is against the law or the evidence.").
But we do not remove factual determinations from a jury simply because the factual inquiry is "nuanced" or "difficult." Cf. Intervest, 554 F.3d at 920. Instead, we issue specific instructions to educate the jury on the nature of its inquiry and presume that the jury follows those instructions. Fed. R. Civ. P. 51; Jamerson v. Sec'y for Dep't of Corr., 410 F.3d 682, 690 (11th Cir. 2005) ("[W]e presume that juries follow instructions ...."). And, where necessary, we ask the jury to return special verdicts breaking out each factual determination the jury must make to guide the jury in its task. Fed. R. Civ. P. 49. Parties also may present expert testimony to assist the jury in its evaluation of the evidence. See Fed. R. Evid. 702.
In fact, we routinely entrust juries with highly technical and complex factual inquiries, including, for instance, issues such as whether one party infringed another's software patent, see Telecom Tech. Servs., Inc. v. Rolm Co., 388 F.3d 820 (11th Cir. 2004); whether a party possesses monopoly power in a relevant market or has sufficient economic power to coerce another into
And we ask juries to make significantly weightier factual determinations than whether two works are "substantially similar," including, for instance, a criminal defendant's liability. Indeed, the Sixth Amendment demands that juries,
In short, when factual determinations are "nuanced" or "difficult," we educate juries and provide them with the tools necessary to do the job. We do not take the issues away from the jury and defer to judges. I am aware of no case law that stands for the proposition that we may more readily remove factual determinations from the jury's purview when those determinations are, in the view of the judge, "difficult."
But even if such precedent existed, I would not see the sense in generally removing the issue of "substantial similarity" from the jury in any kind of copyright case, including those involving architectural works. The standard for whether two works are "substantially similar" is whether "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Original Appalachian Artworks, Inc., 684 F.2d at 829 (emphasis added).
It is not clear to me why judges would be "better able to separate original expression from the non-original elements of a work where the copying of the latter is not protectable and the copying of the former is protectable." Intervest, 554 F.3d at 920. I think it unlikely that many judges have architectural or even design experience. So we have no more practical, real-world understanding of the significance of particular design elements necessary to make a determination about whether a given architectural work is substantially similar to another at the level of protected expression than does a jury.
That is not to say that we cannot make informed decisions regarding these issues, upon reviewing appropriate evidence and applying the correct standard. Of course we can. But so can juries. Indeed, the very nature of the standard — "average lay observer" — suggests as much.
I likewise respectfully disagree with any notion that judges have a special grasp on "the concept of the idea/expression dichotomy and how it should be applied in the context of the works before [them]." Id. No degree of mastery of the "concept of the idea/expression dichotomy" renders a judge better able to determine whether an average lay observer would recognize an alleged copy as having been appropriated from a copyrighted work.
Here, had we applied the same rules of copyright law that we use in cases involving copyrights on other types of works, the Rule 50 motion would have been properly denied because a material issue of fact existed. Specifically, an average lay observer could have concluded that the Turner plans are substantially similar to HDS-2089, evidencing unlawful copying.
And beyond that, HDS's expert also noted that the plans contain certain odd features that are hard to explain if Turner did not unlawfully copy from HDS-2089. For example, one of the bathroom walls in both HDS-2089 and the Laurent plan is slightly thicker than the surrounding walls. This feature has a practical purpose in HDS-2089, but it makes no sense in the Laurent plan: in the HDS-2089, the thicker wall provides a way to accommodate the plumbing for a bath tub, but in the Laurent plan, the tub is turned, so the plumbing for the tub necessarily would not run through the thicker wall.
True, as the Majority points out, the plans have differences. The Majority notes, among others, that the door to the laundry room in the garage swings inwards in HDS-2089 and outwards in the Turner plans, and the plans' respective secondary bathrooms feature different countertops. See id. In Intervest, we held that similar sorts of differences as those identified by the Majority would have precluded a reasonable jury from finding "substantial similarity." See 554 F.3d at 916-17. Respectfully, I disagree.
Instead, I would hold that "an average lay observer" could find these differences between the HDS-2089 and Turner plans to be immaterial in light of the plans' otherwise "substantial similarity" at the level of protected expression. Indeed, the first trial judge denied Turner's summary-judgment motion because the judge concluded that "there are ... myriad similarities in areas of protectable expression," so a reasonable jury could find the works "to be substantially or even strikingly similar." And, after a five-day jury trial, a jury of average lay observers did just that, concluding that all 165 of the Laurent and Dakota houses at issue are "substantially similar" to HDS-2089. To second guess the jury at this stage based on nothing more than a list of modest dissimilarities — the very sort of list that we have already rejected as "inherently subjective and unreliable," Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1257 (11th Cir.1999) — seems to me to unjustifiably usurp the role of the jury in copyright cases and deny owners of architectural work copyrights the full protection of the Copyright Act.
So while I agree with the majority that our decision in Intervest dictates that we uphold the district court's decision granting Appellee's Rule 50 motion, I think it time to revisit Intervest.
TJOFLAT, Circuit Judge, Concurring:
I join the panel's opinion in full. I write separately to address the purportedly untenable infirmities of Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008) — which I agree compels our decision today — that Judge Rosenbaum identifies. Specifically, I
As an initial matter, Intervest in no way "holds that judges are necessarily better able than juries to resolve whether the `average lay observer' would find `substantial similarity' between two architectural works." Ante at 1315 (Rosenbaum, J., concurring) (emphasis added); cf. Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) ("We have pointed out many times that regardless of what a court says in its opinion, the decision can hold nothing beyond the facts of that case.... And dicta is not binding on anyone for any purpose." (citations omitted)). What Intervest suggests (and rightfully so), however, is that claims of copyright infringement are "often more reliably and accurately resolved in a summary judgment proceeding" when the "crucial question" requires assessing "substantial similarity at the level of protectable expression" over types of works warranting only "`thin'" protection, like architectural works. See 554 F.3d at 919 (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349, 111 S.Ct. 1282, 1289, 113 L.Ed.2d 358 (1991)). Far from warranting reconsideration from this Court sitting en banc, that notion is both commonsensical and utterly unremarkable. Nothing in Intervest strips from juries their historically and constitutionally critical responsibility to make factual determinations. Rather, Intervest simply recognizes that when there are more legal determinations to be made relative to factual ones, judges will have relatively more to do. The role to be played by judges — who are, of course, responsible for delineating these legal boundaries — will necessarily be greater at summary judgment in cases in which the scope of the protectable expression is "thin" because "the ability to separate protectable expression from non-protectable expression is, in reality, a question of law or, at the very least, a mixed question of law and fact." Id. at 920. And this is especially so when, as is often true of these types of cases, the scope of the legally protectable expression at issue may be less than crystal clear.
In my view, there is no reason to revisit our holding in Intervest because Intervest was, and remains, correctly decided.
Also, although we agree with the Second Circuit that Intervest is best framed under the first part of the Second Circuit's two-part framework, we do not abandon the merged inquiry from Oravec as a general matter. In many, perhaps most, copyright-infringement cases, sorting out the copyrightable and uncopyrightable elements of floor plans will be unnecessary because the floor plans will be so obviously different (in terms of overall layout or otherwise) that no reasonable jury could find the floor plans substantially similar at the level of protected expression. E.g., Miller's Ale House, 702 F.3d at 1326-27 (no reasonable jury could find sports-bar-and-restaurant floor plans substantial when central bars had different locations and interior seating was "markedly different," among other dissimilarities); Oravec, 527 F.3d at 1223 (no reasonable jury could find high-rise condominiums substantially similar given, among other differences, "concave/convex concept" featured on both sides of Oravec's design but only one side of Trump's).
An examination of Home Design's Timberwood further confirms our position. The Timberwood plan shares HDS-2089's relative master-bedroom proportions and angled walls, and bathroom-accessed master closets. Design choices that are common among many floor plans are, by definition, not unusual.
