RICHARD L. VOORHEES, District Judge.
Sedgewick and Stillwater are both in the business of building houses and both operate in the Northwestern Piedmont region and Northeastern Mountain region of North Carolina. Sedgewick commenced operation in 2009 and is owned by David Tucker. (Doc. 47-2 at 2). Stillwater is owned by Robert Baldwin and one of Stillwater's project managers and building plan designers is Juan Jose Galvez Caballero. (Doc. 54-2 at 2, Doc. 54-4 at 2). As part of its business model, Sedgewick designs architectural plans exclusively for its own use. (Doc. 47-2 at 3). Sedgewick specializes in building Craftsman style homes and designed a series of related layouts and plans titled the "the Spring Valley," "the Quail Valley," and "the Laurel Valley" (collectively "the Valley Series"). Id. The Valley Series ranges in size from 1,694 square feet to 2,362 square feet. (See Docs. 47-3, 47-4, 47-5). Each building plan in the Valley Series features three bedrooms, a concrete front porch, an entranceway/foyer, an open or semi-open kitchen/living room/breakfast nook area, a dining room off of the foyer, a two-car garage facing the street, and a laundry area to the rear of the garage. (See Doc. 47-3 at 2, Doc. 47-4 at 2, Doc. 47-5 at 2). All three building plans in the Valley Series share a common layout, including a split floor plan that places the master bedroom on the opposite side of the house from the non-master bedroom. (See Doc. 47-3 at 2, Doc. 47-4 at 2, Doc. 47-5 at 2). The larger Quail Valley and Spring Valley plans include a half bath between the garage and the master suite, as well as an optional second floor bonus room above the garage. (See Doc. 47-3 at 2, Doc. 47-4 at 2). Also common to the Quail Valley and Spring Valley are the inclusion of his and her walk in closets attached to opposite ends of the master bathroom. (See Doc. 47-3 at 2, Doc. 47-4 at 2). Additionally, the orientation of the fixtures and appliances in the kitchen and the master bathroom, including the placement of the stove and sink relative to the kitchen island, split vanities in the master bathroom, and a water closet within the master bathroom, are common to both the Quail Valley and Spring Valley. (See Doc. 47-3 at 2, Doc. 47-4 at 2). Finally, Sedgewick offers all three plans in the Valley Series in four similar elevations
This litigation arises from two prospective customers of Sedgewick, Christopher Bart Bivins and Gretchen Wyne Bvins (collectively "Bivins") and Joseph Lynn Shoemaker and Emily Groce Shoemaker (collectively "Shoemaker"), visiting Sedgewick and viewing Sedgewick models but ultimately contracting with Stillwater for the construction of their new homes. (See Doc 1 at 5; see also Sedgewick Homes, LLC v. Stillwater Homes, Inc., et al., Case No. 5:16-cv-00050-RLV-DSC, Doc. 1 at 5). In October 2013, Bivins visited Sedgewick for the first time and viewed the Spring Valley model. (Doc. 47-10 at 14). Bivins liked the floor plan of the Spring Valley and received a binder of materials on Sedgewick's homes as well as a compact disc (CD) containing the layouts for Sedgewick's homes. Id. at 15-16. In October 2014, Bivins visited Sedgewick a second time and again viewed the Spring Valley model.
Shoemaker's interactions with Sedgewick and Stillwater follow a similar path as Bivins's interactions with Sedgewick and Stillwater. Shoemaker originally visited Sedgewick in 2011 and visited Sedgewick for a second time in December 2014. (Doc. 47-16 at 2). During both visits, Shoemaker toured Sedgewick's Quail Valley model. (Doc. 47-17 at 13, 21-23). During Shoemaker's December 2014 visit to Sedgewick, Shoemaker expressed an interest in building a home based on the Quail Valley plan with the optional second floor bonus room. Id at 17-18, 21-23; (see also Doc. 54-8 at 4). During Shoemaker's December 2014 visit to Sedgewick, Shoemaker received sales materials and a CD containing the layouts for Sedgewick's homes. (Doc. 47-17 at 17-18, 21-23; see also Doc. 54-8 at 4). In early 2015, Shoemaker visited Stillwater, telling Stillwater that they liked Sedgewick's models but were looking for a better price.
As further background on the Trent plan and Stillwater's alleged reliance on the Trent plan to obtain Bivins's and Shoemaker's business, Baldwin provided a declaration stating that he purchased a licensed plan entitled "the Henderson" in 2007 and that the Trent is a modification of the Henderson. (Doc. 54-2 at 2; see also Doc. 64-10). Baldwin further declares that the Henderson has a copyright date of November 8, 1996, (Doc. 54-2 at 2), but Stillwater does not provide a certificate of registration supporting Baldwin's declaration in this respect and the plan provided by Stillwater is undated.
In January 2016, two employees of Sedgewick noticed a home in the area that, from the exterior, looked like the Sedgewick's Quail Valley home but which had a sign bearing Stillwater's name in front of the home. (Doc. 54-8 at 9). The home Sedgewick's employees observed was Shoemaker's new home. Id. One of the Sedgewick employees subsequently gained access to the interior of Shoemaker's home and concluded that the interior layout of the home was "strikingly similar" to Sedgewick's Quail Valley. Id. at 4-5. Sedgewick filed two five-count complaints, one against Bivins and Stillwater and a second against Shoemaker and Stillwater. (See Doc. 1; Sedgewick Homes, LLC v. Stillwater Homes, Inc., et al., Case No. 5:16-cv-00050-RLV-DSC, Doc. 1). In the complaints, Sedgewick raises claims for (1) federal copyright infringement, against all defendants and under 17 U.S.C. § 501; (2) contributing to and/or inducing federal copyright infringement, against Bivins and Shoemaker and under 17 U.S.C. § 501; (3) federal unfair competition—reverse passing off, against Stillwater and under 15 U.S.C. § 1125(a)(1)(A); (4) a North Carolina state law claim against Stillwater under the Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-11, et seq.; and (5) a North Carolina common law claim for unfair competition against Stillwater. (Doc. 1 at 7-12; Sedgewick Homes, LLC v. Stillwater Homes, Inc., et al., Case No. 5:16-cv-00050-RLV-DSC, Doc. 1 at 7-11). Both complaints seek relief in the form of an injunction preventing future infringement by Stillwater, the impounding and destruction of all copies of the allegedly infringing plan held by Stillwater, monetary damages, costs and fees, and treble damages relative to the unfair and deceptive trade practices claims. (Doc. 1 at 12-14; Sedgewick Homes, LLC v. Stillwater Homes, Inc., et al., Case No. 5:16-cv-00050-RLV-DSC, Doc. 1 at 12-13). Sedgewick's two actions were consolidated for the purpose of discovery and trial as to the claims against Stillwater, with the actions being stayed as to Bivins and Shoemaker. (Docs. 40, 41; Sedgewick Homes, LLC v. Stillwater Homes, Inc., et al., Case No. 5:16-cv-00050-RLV-DSC, Docs. 42, 43).
Sedgewick and Stillwater have filed cross-motions for summary judgment. (Docs. 45, 63). In support of its Motion for Partial Summary Judgment, Sedgewick seeks summary judgment on its copyright infringement claims against Stillwater, arguing that the Quail Valley is a validly copyrighted work and that the undisputed facts show that Stillwater actually copied the Quail Valley plan. (Doc. 48 at 18-25). Sedgewick alternatively argues that if the Court cannot conclude that Stillwater actually copied the Quail Valley plan, Sedgewick is entitled to summary judgment because Stillwater had access to the Quail Valley plan and the Trent plan is so "substantially similar" to the Quail Valley plan as to permit the Court to conclude that Stillwater infringed Sedgewick's valid copyright. Id. at 26-29. In response to Sedgewick's motion, Stillwater argues that (1) Sedgewick's copyrights relative to the Quail Valley are not valid because there is nothing unique or original about the Quail Valley; (2) the evidence does not establish that Stillwater had access to the Quail Valley plan, no less that Stillwater actually copied the Quail Valley plan; (3) Stillwater independently created the Trent plan before it had any possible access to the Quail Valley plan; (4) the Trent plan and Bivins's and Shoemaker's homes differ from the Quail Valley in many respects; and (5) Sedgewick does not identify what features are unique to the Quail Valley. (Doc. 54 at 6-21).
In support of its motion for summary judgment, Stillwater rehashes most of its arguments against Sedgewick's motion for partial summary judgment, but concedes that, for purposes of its motion, there is a genuine issue of material fact as to whether Sedgewick possess a valid copyright for the Quail Valley.
In 1990, Congress enacted the Architectural Works Copyright Protection Act ("AWCPA"), which explicitly extended copyright protection to "architectural works." Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 537 (4th Cir. 2015); see also Pub. L. No. 101-650, § 701-706 (1990); 17 U.S.C. § 102(a)(8). For purposes of copyright protection, the term "architectural work" is defined 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." 17 U.S.C. § 101 (emphasis added). The limitation placed on the scope of copyright protection afforded to architectural works by the last clause in the definition-that protection does not extend to "individual standard features"—evolves from the constitutional requirement that copyright protection may only extend to original works or the subparts of works that are original, see Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 347 (1991).
The term "standard features" is not defined by statute; however, courts have understood the term to encompass "purely functional requirements" common to home designs as a result of considerations such as the utilitarian purpose a specific feature serves, market demands, building codes, zoning requirements, functional demands, and available technology. Bldg. Graphics, Inc. v. Lennar Corp., 866 F.Supp.2d 530, 537-38 (W.D.N.C. 2011) (Voorhees, J.); Dream Custom Homes, Inc. v. Modern Day Const., Inc., 773 F.Supp.2d 1288, 1300 (M.D. Fla. 2011); Harvester, Inc. v. Rule Joy Trammell + Rubio, LLC, 716 F.Supp.2d 428, 440-41 (E.D. Va. 2010). Examples of "individual standard features" that do not receive copyright protection include "common windows, doors, and other staple building components." Charles W. Ross Builder, Inc., 496 F. App'x at 317. Ideas that are sufficiently common to architectural works so as to preclude copyright protection include the use of an open floor plan, a split master/other bedroom(s) floor plan that places the master suite on the opposite side of the house from the other bedroom(s), inclusion of a flex space room, placing the laundry room in close proximity to the master suite, and creating a direct passageway from the garage to the kitchen. Savant Homes Inc. v. Collins, 2015 WL 899302, at *6 (D. Colo. Feb. 27, 2015); see also Kootenia Homes, Inc. v. Reliable Homes, Inc., 2002 WL 15594, at *3 (D. Minn. Jan. 3, 2002) (noting that "`generalized notions of where to place functional elements, how to route the flow of traffic, and what methods of construction and principles of engineering to rely on'" are ideas not entitled to protection (quoting Attia v. Soc'y of New York Hosp., 201 F.3d 50, 55 (2d Cir. 1999))). Furthermore, given the limited number of ways that an architect can design a home of a specific size and style in light of consumer preferences, consumer budgetary limitations, and functional requirements, the merger doctrine limits the protection granted to the expression of ideas "`where there is only one or so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself.'" Dream Custom Homes, Inc., 773 F. Supp. 2d at 1307 (quoting BUC Int'l Corp. v. Int'l Yacht Council, Ltd., 489 F.3d 1129, 1142 (11th Cir. 2007)); see also Kootenia Homes, Inc., 2002 WL 15594, at *4 ("Efficiency concerns and the need for functional living in the home inevitably constrain the number of variations in the configuration of the rooms and spaces.").
While copyright protection does not extend to "individual standard features" or ideas, "the Copyright Act protects the specific expression of ideas in [an architectural] plan." Kootenia Homes, Inc. 2002 WL 15594, at *3 (D. Minn. Jan. 3, 2002) (citing 17 U.S.C. § 102(b)); see also Bldg. Graphics, Inc., 866 F. Supp. 2d at 537-38 (noting that "standard features" are not protected and that architectural plans always have a utilitarian aspect but recognizing that architectural plans still receive some protection under copyright laws). Accordingly, the "shape, arrangement and location of buildings, the design of open space, the location of parking and sidewalks, and the combination of individual design elements" have been recognized as elements of an architectural plan entitled to protection under copyright law. Dream Custom Homes, Inc., 773 F. Supp. 2d at 1302 (emphasis added). Similarly, the "look and feel" of a home may be entitled to copyright protection. Cornerstone Home Builders, Inc. v. McAllister, 303 F.Supp.2d 1317, 1320 (M.D. Fla. 2004); see also Bldg. Graphics, Inc., 866 F. Supp. 2d at 539 (considering "overall look and feel" of architectural work as part of analysis of whether protected elements of work were similar).
Because "originality in architectural works frequently comes from the `arrangement and composition' of spaces and other design elements, which are not [themselves] protectable," many courts, when considering copyright infringement claims, have analogized the copyright protection afforded to an architectural plan to the copyright protection afforded to a "compilation."
In the instant case, the Court concludes that the analogy of an architectural work to a compilation is particularly apt. First, Sedgewick's own Vice President of Construction Services, Justin Todd Keisler, who also has experience as an architect and plans draftsman, readily admitted during his deposition testimony that there are only so many ways to design a three bedroom Craftsman style home and that most or all of the individual features in the Quail Valley plan are functional and can be found in other architectural plans. (See Doc. 64-6 at 10-13, 24-26, 47-51, 79). Second, in its briefs, Sedgewick does not identify any specific feature of the Quail Valley that is unique and entitled to copyright protection, but instead supports its infringement claim by relying on the original nature of the arrangement of features on the whole. (See Doc. 67 at 6 ("Sedgewick is not claiming copyright protection in the individual standard features, as Stillwater suggests. Sedgewick's Copyrighted Work is protected under copyright law in its overall form as well as the arrangement and composition of spaces and elements in the design." (internal quotation marks omitted)); see also Doc 48 at 22-25, Doc. 60 at 4). Similarly, when questioned about what made the Quail Valley plan unique, Keisler cited the plan as a whole and how each functional or common item related to one another. (Doc. 64-6 at 52). Accordingly, where no individual feature of the Quail Valley plan appears unique in and of itself but there is no evidence that Sedgewick copied the Quail Valley plan and the Quail Valley plan, on the whole, involved at least a "minimal level of creativity," the Court will treat the Quail Valley plan as akin to a compilation for purposes of the copyright protection it receives and the Court's copyright infringement analysis.
"`To establish a claim for copyright infringement, a plaintiff must prove that [(1)] it owned a valid copyright and [(2)] the defendant copied the original elements of that copyright.'" Humphreys & Partners Architects, L.P., 790 F.3d at 537 (quoting Lyons P'ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 801 (4th Cir. 2001)). Relative to the first element of a claim for copyright infringement, where a plaintiff obtains a certificate of registration from the Copyright Office within five years of the first publication of the work, the certificate of registration constitutes prima facie evidence of a valid copyright. 17 U.S.C. § 410(c). Relative to the second element of a claim for copyright infringement, a plaintiff may rely on direct evidence of copying to establish that a defendant copied original elements of plaintiff's copyrighted work. Humphreys & Partners Architects, L.P., 790 F.3d at 537. Because "persuasive direct evidence of copying is seldom available to a plaintiff in an infringement controversy . . . courts have generally accepted circumstantial evidence to create a presumption of copying." Keeler Brass Co. v. Cont'l Brass Co., 862 F.2d 1063, 1065 (4th Cir. 1988). To create a presumption of copying via circumstantial evidence, a plaintiff must demonstrate that "the alleged copier had access to the material and that the original material and the alleged copy are substantially similar." Id. If a plaintiff successively relies on circumstantial evidence to create a presumption of copying, a defendant can rebut the presumption with evidence of independent creation. Keeler Brass Co., 862 F.2d at 1065; Calhoun v. Lillenas Publ'g, 298 F.3d 1228, 1232 (11th Cir. 2002). Independent creation, however, is not an affirmative defense because it negates an element of a plaintiff's case, namely that a defendant copied plaintiff's protected work. Keeler Brass Co., 862 F.2d at 1066. Accordingly, evidence put forward by a defendant regarding independent creation must be viewed as one part of the record as a whole and the burden remains on the plaintiff to establish that defendant copied the protected aspects of plaintiff's work. See id. at 1066-67.
Summary judgment is appropriate only "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). In order to support or oppose a summary judgment motion, a party is required to cite to "materials in the record, including depositions, documents, . . . declarations, . . . admissions, interrogatory answers, or other materials;" or show "that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (applying former version of Rule 56); Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (same).
It is well-established that the mere existence of "some" factual disputes will not defeat summary judgment; rather, the dispute presented must be "genuine" and concern "material" facts. Anderson, 477 U.S. at 247-248 (emphasis in original); see also Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). A dispute is "genuine" if "a reasonable jury could return a verdict for the nonmoving party." Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. Abstract or conjectural doubts, minor discrepancies, and points irrelevant to the "material" facts are not genuine or material, and such do not cast sufficient doubt on the validity of testimony as to preclude the entry of summary judgment. Emmett, 532 F.3d at 297; Hux v. City of Newport News, Va., 451 F.3d 311, 315 (4th Cir. 2006). The non-movant cannot demonstrate a triable issue of disputed fact by building one inference upon another. Emmett, 532 F.3d at 297 (citing Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)). Although it is certainly true that "the facts and all reasonable inferences must be viewed in the light most favorable to the non-moving party," Smith v. Va. Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996) (en banc), it is equally true that a court is "well within its discretion in refusing to ferret out the facts that counsel has not bothered to excavate." Cray Commc'ns. Inc. v. Novatel Comput. Sys., Inc., 33 F.3d 390, 396 (4th Cir. 1994).
Historically, courts have been reluctant to grant summary judgment motions in copyright infringement cases because the similarity element often involves a subjective determination on which reasonable minds may disagree. Bldg, Graphics, Inc., 866 F. Supp. 2d at 536 (quoting Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1247 (11th Cir. 1999)); see generally Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992) (noting that summary judgment "will be denied when the question of substantial similarity is one on which reasonable minds could differ"). To that point, as a "general rule . . . the question of substantial similarity is one for the jury." Thomas v. Artino, 723 F.Supp.2d 822, 831 (D. Md. 2010). This general rule against granting summary judgment on copyright infringement cases is, however, entitled to less deference where the allegedly infringed work "is merely a compilation of common design ideas as the nature of a compilation narrows the substantial similarity inquiry." Bldg. Graphics, Inc., 866 F. Supp. 2d at 536 (internal citations and quotation marks omitted).
In select specific situations, summary judgment may be appropriate on claims of copyright infringement of an architectural work. First, summary judgment in favor of the defendant is appropriate if plaintiff fails to present any evidence demonstrating that defendant had access to plaintiff's copyrighted work. Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg., LLC, 977 F.Supp.2d 567, 580 (E.D. Va. 2014). Second, summary judgment in favor of the defendant is appropriate where "`the similarity between two works concerns only non-copyrightable elements of the plaintiff's work.'" Bldg. Graphics, Inc., 866 F. Supp. 2d at 536 (quoting Harzog, 193 F.3d at 1247); see also Charles W. Ross Builder, Inc., 977 F. Supp. 2d at 580. Third, summary judgment in favor of the defendant is appropriate if "`no reasonable jury, properly instructed, could find that the two works are substantially similar.'" Bldg. Graphics, Inc., 866 F. Supp. 2d at 536 (quoting Harzog, 193 F.3d at 1247); see also Charles W. Ross Builder, Inc., 977 F. Supp. 2d at 580. Fourth, and finally, summary judgment in favor of the defendant is appropriate where the defendant presents uncontradicted evidence of independent creation. Watkins v. Chesapeake Custom Homes, L.L.C., 330 F.Supp.2d 563, 575 (D. Md. 2004). In fact, uncontradicted evidence of independent creation will provide a basis for granting summary judgment even if the plaintiff's protected work and the alleged infringing work are "`practically identical.'" Id. (quoting Keeler Brass Co., 862 F.2d at 1066).
Conversely, summary judgment in favor of a plaintiff is appropriate "when the similarities between plaintiff's and defendant's works are so overwhelming as to preclude the possibility of independent creation." Thomas, 723 F. Supp. 2d at 831. Summary judgment in favor of a plaintiff is also appropriate where the evidence demonstrates blatant copying on the part of the infringer such that no reasonable juror could conclude that the defendant did not copy the protected elements of plaintiff's work. See Rogers, 960 F.2d at 307 (affirming grant of summary judgment where "copying was . . . blatantly apparent").
For purposes of its Motion for Summary Judgment, Stillwater concedes that there is at least a genuine issue of material fact with respect to whether Sedgewick holds a valid copyright. (Doc. 65 at 10 n.3). Furthermore, because Sedgewick has not established the absence of a genuine issue of material fact relative to the second element of its claim for copyright infringement, see infra. at 17-34, Sedgewick has not met its burden for purposes of summary judgment and the Court need not determine whether Sedgewick has established, as a matter of law, that it holds two valid copyrights for the Quail Valley.
"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." Humphreys & Partners Architects, L.P., 790 F.3d at 537. (quotation marks and ellipsis omitted). Evidence establishing that one party provided the copyrighted work, or a photograph or replica of the copyrighted work, to a second party and explicitly instructed the second party to copy the work, also constitutes direct evidence of copying. Rogers, 960 F.2d at 307.
In an effort to demonstrate that Stillwater copied the Quail Valley plan, Sedgewick contends that Bivins and Shoemaker both possessed materials for the Quail Valley plan and that Bivins and Shoemaker provided Stillwater a copy of the materials and directed Stillwater to copy the plans for the Quail Valley. (Doc. 48 at 21-22). Sedgewick cites four pieces of evidence to support its contention: (1) the plan that served as the basis for the homes built for Bivins and Shoemaker is nearly identical to the Quail Valley plan; (2) an e-mail from Bivins to Baldwin asking for a price quote on the Spring Valley specifications, to which Baldwin responded that he would provide such a price quote; (3) an e-mail from Shoemaker asking for a price quote on a house with 2,081 square feet, the exact square footage of the Quail Valley; and (4) admissions by Bivins, Shoemaker, and Baldwin that Stillwater's Trent plan is "similar" or "very similar" to the Sedgewick's designs. Id. at 15-20; (Doc. 60 at 4-8; Doc. 67 at 2, 6-9.
When the evidence relied on by Sedgewick is reviewed as part of the record as a whole, the lack of undisputed direct evidence of copying is all the more apparent. Notably, Bivins and Shoemaker both deny providing Stillwater with any of Sedgewick's materials. (Doc. 47-16 at 3, Doc. 47-17 at 25, Doc. 47-9 at 3-4). Stillwater also denies receiving Sedgewick's plans from Bivins or Shoemaker and denies copying any of Sedgewick's designs. (Doc. 54-2 at 4, Doc. 54-4 at 3). Stillwater has also presented some evidence in support of its contention that the plan it relied on to build homes for Bivins and Shoemaker was developed prior to any substantive conversations with Bivins and Shoemaker. (Doc. 47-11 at 8, Doc. 54-2 at 3, Doc. 54-4 at 2, Doc. 64-2 at 6; see also Doc. 52-2 at 2, Doc. 52-3 at 2-3, Doc. 52-4). Accordingly, although the evidence relied on by Sedgewick is worthy of consideration as circumstantial evidence of copying by Stillwater, it is insufficient to establish direct evidence of copying for purposes of summary judgment.
"To prove access, [p]laintiff must show that [d]efendant[] had an opportunity to view or copy its work." Bldg. Graphics, Inc., 866 F. Supp. 2d at 539 (citing 4 Nimmer on Copyright § 13.02[A]). "The mere possibility of such an opportunity will not suffice; `it must be reasonably possible that the paths of the infringer and the infringed work crossed.'" Id. (quoting Towler v. Sayles, 76 F.3d 579, 582 (4th Cir. 1996)). Evidence that the plaintiff's published its work on the internet or made the work otherwise publicly available is insufficient, on its own, to demonstrate a reasonable possibility of access on the part of defendant. See id. at 540-41. Instead, plaintiff may only rely on its publication of its copyrighted work to establish a reasonable possibility of access by the defendant if it produces some evidence demonstrating that defendant likely viewed the publication. See id. at 541; see also Dream Custom Homes, Inc., 773 F. Supp. 2d at 1302 (access can be inferred through "evidence of review by a member of a work unit that includes one of the defendant-copiers"). Separately, a plaintiff may establish a reasonable possibility of access by the defendant through "evidence of possession by a third party who was an intermediary in a channel of communication between a plaintiff and one of the defendant-copiers." Dream Custom Homes, Inc., 773 F. Supp. 2d at 1302. Specifically, evidence that a third-party buyer toured the plaintiff's architectural work and then guided the defendant's design of the third-party buyer's home can create a material factual issue as to the reasonable possibility of access on the part of the defendant. Kootenia Homes, Inc., 2002 WL 15594, at *5. Finally, access may be inferred "when the works are so strikingly similar as to preclude the possibility of independent creation"; however, demonstrating access by way of striking similarity is "exceptionally difficult" in the context of architectural works because of the minimal level of copyright protection afforded to architectural works and the fact that modest dissimilarities are of greater significance in architectural works.
Sedgewick, in addition to the evidence it relies on as part of its direct evidence of copying argument, points to Stillwater's admission that it probably accessed Sedgewick's website and floor plans after meeting with Bivins and learning that Bivins liked Sedgewick's designs. (Doc. 48 at 26; see also Doc. 54-2 at 4-5 (Baldwin declaration admitting he likely looked at Sedgewick's website after Bivins visit). Sedgewick further contends that Bivins and Shoemaker possessed Sedgewick's materials and could have provided those materials to Stillwater.
After reviewing the evidence cited to by the parties, the Court concludes that there is a reasonable possibility that Stillwater accessed Sedgewick's copyrighted plans. First, Bivins and Shoemaker's possession of Sedgewick's sales materials prior to meeting with Stillwater constitutes some evidence tending to support a reasonable probability of access on the part of Stillwater. See Dream Custom Homes, Inc., 773 F. Supp. 2d at 1302. Although Bivins and Shoemaker deny providing Sedgewick's materials to Stillwater, (Doc. 47-9 at 3-4, Doc. 47-16 at 3), their possession of Sedgewick's sales materials rises to the level of at least creating a genuine issue of material fact regarding a reasonable probability of access by Stillwater when their possession of the materials is considered in tandem with Bivins's e-mail asking Stillwater for a price quote based on the specifications of one of Sedgewick's designs, (Doc. 48-2 at 2), and Shoemaker's admission that he provided a third builder with some of Stillwater's sales materials, (Doc. 47-17 at 30). Second, under governing law, Sedgewick's publication of the Quail Valley plan on its website plus Baldwin's admission that he probably viewed Sedgewick's website after Bivins's visit is sufficient to satisfy the reasonable probability of access requirement. See Bldg. Graphics, Inc., 866 F. Supp. 2d at 541; Dream Custom Homes, Inc., 773 F. Supp. 2d at 1302. This conclusion, however, raises the question of whether the reasonable probability of access occurred at a time relevant to Stillwater's creation of the Trent-the allegedly infringing plan.
The evidence shows that Stillwater viewed Sedgewick's website following its October 2014 meeting with Bivins. (Doc. 54-2 at 4-5). Stillwater contends that it created the Trent in 2013 and that the Trent is an adaptation of the Henderson and Holcomb plans. (Doc. 54 at 15-16, 19-21; Doc. 65 at 22-23). In support of Stillwater's contention regarding when it created the Trent, Stillwater relies on Baldwin's and Caballero's declarations and an image of a computer screen showing a plan and an alleged file creation date of January 31, 2013. (Doc. 54-2 at 3, Doc. 54-4 at 2, Doc. 64-2 at 6). Sedgewick contests Stillwater's alleged creation date of the Trent, arguing that (1) Stillwater's evidence is of questionable reliability; (2) Stillwater did not produce the image of the computer screen during discovery; and (3) the screenshot of the Trent plan for the Bivins home that Stillwater did produce during discovery indicates a creation date of October 15, 2014. (Doc. 67 at 11-13).
Having reviewed the record, the Court concludes that a genuine issue of material fact exists regarding when Stillwater created the Trent plan. While Stillwater produced evidence suggesting it created the Trent on January 31, 2013, the image of the computer screen relied on by Stillwater is of questionable reliability. Stillwater identifies the image as a "screen shot from SoftPlan." (Doc. 73 at 9). The image, however, is not a "screen shot" as that term is understood in the computer world, as the image is cut off, uneven, and does not show the entirety of the computer screen and what, if any, other programs were open at the time the image was taken. (See Doc. 64-2 at 6). In actuality, the image is a partial photograph of a computer screen, taken by Caballero. (Doc. 64-2 at 2; see also id. at 6). The lack of a complete picture of the computer screen is important because the creation box does not contain any information about the name of the document associated with the creation date or the user who created the document, prompting an inherent authenticity issue regarding whether the creation date box belongs to the building plan in the image or whether the creation box belongs to another document and has been dragged on top of the building plan.
As this Court previously concluded that Sedgewick did not meet its burden for summary judgment on its direct evidence of copying argument the only way Sedgewick could have still obtained partial summary judgment in its favor is by establishing circumstantial evidence of copying, which entailed showing both a reasonable probability of access by Stillwater and substantial similarity between the Quail Valley plan and the Trent plan. Because there is a genuine issue of material fact regarding whether Stillwater accessed Sedgewick's website and building plans before creating the Trent plan, Sedgewick has not proffered sufficient circumstantial evidence of copying to obtain judgment in its favor as a matter of law and Sedgewick's Motion for Partial Summary Judgment (Doc. 45) is
"The substantial similarity determination requires comparison not only of the work's individual elements in isolation, but also their overall look and feel." Bldg. Graphics, Inc., 866 F. Supp. 2d at 539. "In the context of architectural design, substantial similarity has been understood to require the plaintiff to show only that a substantial part of the allegedly infringed design was copied, not that every element of the plaintiff's design was copied." Thomas, 723 F. Supp. 2d at 831; see also Dream Custom Homes, Inc., 773 F. Supp. 2d at 1308 ("The existence of differences between two designs will not negate infringement unless the differences so outweigh the similarities that the similarities can only be deemed inconsequential with the total context of the copyrighted work."). Nonetheless, where a work, such as an architectural work, receives copyright protection as a compilation, "`modest dissimilarities are more significant than they may be in other types of art works.'" Bldg. Graphics, Inc., 866 F. Supp. 2d at 536 (quoting Howard v. Sterchi, 974 F.2d 1272, 1276 (11th Cir. 1992)). Finally, where an individual consumer seeks personal modifications to an allegedly infringing plan, a court, when conducting its substantial similarity analysis, should consider the original plans provided to the consumer by the allegedly infringing builder rather than looking only at the final plans on which the consumer's home was ultimately built. See Cornerstone Home Builders, Inc., 303 F. Supp. 2d at 1321.
Under Fourth Circuit law, to demonstrate substantial similarity, plaintiff must demonstrate both extrinsic similarity and intrinsic similarity. Humphreys & Partners Architects, L.P., 790 F.3d at 537-38. The extrinsic similarity inquiry is an objective inquiry "that looks to external criteria of substantial similarity between the alleged copy and the protected elements of the copyrighted work." Id. at 538 (internal quotation marks omitted). While a court may consider noncopyrightable elements of a work when looking at extrinsic similarity, the focus of the extrinsic similarity analysis must be on the copyrightable elements because similarities as to noncopyrightable functional elements of a home are insufficient, on their own, to demonstrate substantial extrinsic similarity.
Specific to architectural works, courts have generally struggled to identify the precise elements of the architectural plans they should focus on when considering the extrinsic similarity of two plans. The challenges posed by the extrinsic similarity analysis are hardly surprising given that (1) architectural works are similar to compilations in that they contain many unprotected elements, (2) originality and creativity in architectural works are limited by the demands of consumers, and (3) courts are not inherently knowledgeable regarding architectural standards and the trends and demands in the housing market. To aid a court with the extrinsic similarity analysis, parties moving for summary judgment on copyright claims based on architectural works typically provide a court with independent expert analyses regarding which features of the two works are similar and dissimilar and whether certain similarities in two works are the result of functionality requirements and industry norms. See Humphreys & Partners Architects, L.P., 790 F.3d at 536, 540 (noting and discussing expert reports from architects regarding similarity of designs and commenting that "[t]he extrinsic inquiry is an objective one of which expert testimony may be relevant"); Charles W. Ross Builder, Inc., 496 F. App'x at 318 ("[E]xpert testimony often may be helpful to a court's determination of extrinsic similarity."); Jeff Benton Homes v. Alabama Heritage Homes, Inc., 929 F.Supp.2d 1231, 1242-44, 1253-54 (N.D. Ala. 2013) (discussing expert opinion regarding similarities of homes and common functional features after finding that expert opinions were relevant and noting that "in cases involving architectural plans, the need for expert testimony may be greater, given the somewhat complex subject matter"); Kootenia Homes, Inc., 2002 WL 15594, at *5 ("[A]n analysis of the objective similarities in the details of the works depends on expert testimony." (emphasis added)); see also Towler, 76 F.3d at 583 (noting that extrinsic element is "typically [established] with the aid of expert testimony" but noting such in context of copyright claim involving screenplay); Savant Homes, Inc., 2015 WL 899302, at *4-5 (discussing expert reports regarding similarities in architectural works and what features were common to the market).
In this instance neither party provided the Court with any independent expert analysis, by way of either an expert report or a deposition, comparing the Quail Valley plan to the Trent plan in its original form or the Trent plan as modified for the Bivins home and as modified for the Shoemaker home. Furthermore, the parties provide relatively few citations to the deposition testimony of their own employees regarding the similarities and dissimilarities of the relevant plans. To the extent that the deposition testimony of the employees of the parties is cited, the testimony lacks the force of an independent expert opinion. Where the Court is not inherently familiar with the housing market or the functional demands that go into designing a home, the lack of any expert opinions hinders the Court's extrinsic similarity analysis and counts against Stillwater on its motion for summary judgment.
The Court's review of the relevant case law reveals that courts conducting extrinsic similarity analyses have looked at a wide range of features including the footprint of the home, the dimensions and shape of rooms and living space, the location of features in the master suite, the shape and location of closets and windows, the exterior appearance of the home, and how the arrangement of spaces and elements in the home impacts traffic flow in the home. Humphreys & Partners Architects, L.P., 790 F.3d at 540; Bldg. Graphics, Inc., 866 F. Supp. 2d at 544 (considering room size, location of entrances to the home and of closet, presence of variant wall angles, and exterior elevation when conducting extrinsic similarity analysis); Kootenia Homes, Inc., 2002 WL. 15594, at *6 (considering square footage of living spaces, roof lines, staircase location, configuration of windows, location of bathroom and closets within master suite, location of mud room and laundry room, arrangement of second floor rooms, curbside view, and internal door placements and their impact on flow of traffic patterns within the home when conducting extrinsic similarity analysis); see also Savant Homes, Inc., 2015 WL 899302, at *7 (comparing wider than normal staircase, arrangement of master bathroom, garage windows, shape of closets, and windows in closets when performing substantial similarity analysis); Cornerstone Home Builders, Inc., 303 F. Supp. 2d at 1320-21 (considering, among other features, the roof lines, room dimensions, and room arrangement when performing substantial similarity analysis); but see Dream Custom Homes, Inc., 773 F. Supp. 2d at 1307 (noting several Eleventh Circuit cases where "the similarity of floor plan has been discounted because there are a finite number of ways to design the floor plan for a three bedroom, two-bath split-plan home."). "With regard to architectural plans, substantial similarity may be established on the basis of similarity between either the floor plans or the exterior, or both." Thomas, 723 F. Supp. 2d at 831 (internal quotation marks omitted) (emphasis added). Having considered these factors, the Court concludes that there is at least a genuine issue of material fact regarding the extrinsic similarity between the Quail Valley plan and the Trent plan.
Starting with the footprint of the home and the dimensions of the rooms, the Court concludes that the two plans are virtually identical with the dimensions of each room of the Trent plan varying by mere inches from the dimensions of each room of the Quail Valley plan.
In contrast to these significant similarities, the differences identified by Stillwater are not so overwhelming as to eliminate a genuine issue of material fact as to extrinsic similarity. Furthermore, it appears that the majority of the differences identified by Stillwater only appear in the final plans for the Bivins and the Shoemaker homes. These final plans are, however, partially the product of customer requested modifications, (see Doc. 47-12 at 2), and it would be reasonable for a jury to conclude that had Bivins and Shoemaker contracted with Sedgewick, that Sedgewick would have incorporated some of these very same alleged dissimilarities into its Quail Valley plan. For this reason, and because the initial stock design is the design that the customer views when initially selecting a builder, the Court, for purposes of its substantial similarity analysis, places greater emphasis on the stock plan and the intermediate plans provided to Bivins and Shoemaker than the final plans upon which the Bivins and Shoemaker homes were ultimately built. See Cornerstone Home Builders, Inc., 303 F. Supp. 2d at 1321. This conclusion is buttressed by the fact that Sedgewick's architectural plan for the Quail Valley is itself protected by copyright law.
Stillwater attempts to overcome the similarities between the Quail Valley plan and the Trent plan by submitting building plans for other homes that it alleges are also similar to the Quail Valley plan and the Trent plan. (Doc. 54-3 at 10-50,
In summation, the enlarged physical overlay of the two plans provided by Sedgewick tells the story regarding the high level of similarity between the Quail Valley plan and the Trent plan. (See Doc. 67-2). Although the two plans do not perfectly align, if copyright protection extends to architectural works and compilations, then the high level of similarity between the two plans in this case must at least raise a genuine issue of material fact as to extrinsic similarity.
As a genuine issue of material fact exists with respect to extrinsic similarity, the Court must turn its attention to the intrinsic similarity inquiry. In judging intrinsic similarity, a court must look at the "total concept and feel of the works" through the eyes of the intended audience to determine if the works are subjectively similar. Charles W. Ross Builders, Inc., 496 F. App'x at 318. Put another way, "the intrinsic similarity test asks whether `the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.'" Id. (quoting Universal Furniture Int'l, Inc., 618 F.2d at 436 (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960))).
Stillwater, while recognizing that the substantial similarity analysis has an intrinsic component, does not present any argument regarding a lack of intrinsic similarity between the Quail Valley and the Trent. (See Doc. 54 at 17-19; Doc. 65 at 17-22). Nor could Stillwater in light of the overwhelming similarities that would not only strike the ordinary observer but that did, in fact, catch the attention of both Bivins and Shoemaker. (Doc. 47-10 at 57, Doc. 47-17 at 28). Accordingly, the evidence creates at least a genuine issue of material fact with respect to intrinsic similarity.
As a genuine issue of material fact exists with respect to extrinsic and intrinsic similarity, this Court must consider Stillwater's independent creation evidence before determining if a genuine issue of material fact exists as to whether Stillwater copied the Quail Valley plan. See Keeler Brass Co., 862 F.2d at 1065-67. As noted earlier, Stillwater's primary piece of evidence in support of its independent creation argument suffers from significant authenticity and reliability issues. See supra at 22-24. Further, while Stillwater asserts that the Trent plan was an adaptation from the Henderson and the Holcomb, Stillwater provides little information or supporting evidence regarding the adaptation process. What evidence Stillwater does produce is untitled, undated, or largely lacking in detail such that the origin of the documents is not convincing when the documents are viewed in the light most favorable to Sedgewick. (See e.g. Doc. 52-3 at 2-3 (extremely rough sketches allegedly of the Henderson)). Additionally, while Stillwater asserts that the Henderson was registered with the U.S. Copyright Office, Stillwater fails to produce a certificate of registration for the Henderson and the Court's search of the Copyright Office's records did not yield an entry for the Henderson in November 1996. In sum, while Stillwater has produced some evidence in support of its independent creation argument, the evidence is of questionable reliability such that a reasonable jury could discount the evidence in light of the considerable similarity between the Quail Valley plan and the Trent plan. Therefore, a genuine issue of material fact exists regarding whether Stillwater copied Sedgewick's protected work and Stillwater's Motion for Summary Judgment is
(1) Sedgewick's Motion for Partial Summary Judgment (Doc. 45) is
(2) Stillwater's Motion for Summary Judgment (Doc. 63) is
(3) This case remains consolidated for trial and the stay with respect to Sedgewick's claims against Bivins and Shoemaker remains in effect (Doc. 41);
(4) Pursuant to the parties pending Consent Motion to Continue Docket Call/Jury Trial (Doc. 74), the parties shall have up to and including August 7, 2017 to submit a proposed amended schedule for trial.
17 U.S.C. § 101. Also evident of the limitations on protection offered to architectural works, Section 102 of Title 17 states "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process system, method of operation, concept, principles, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 U.S.C. § 102(b).
Bldg. Graphics, Inc., 866 F. Supp. 2d at 543.
