ROBERT G. DOUMAR, Senior District Judge.
I. PROCEDURAL HISTORY ......................................................573II. FACTUAL BACKGROUND ......................................................574A. FORD'S COLONY .......................................................574B. COLONIAL GEORGIAN ARCHITECTURE ......................................576C. PLAINTIFF'S "BAINBRIDGE" MODEL AND THE RUBIN RESIDENCE ..............577III. SUMMARY JUDGMENT STANDARD ...............................................579IV. DISCUSSION ..............................................................580A. VALIDITY OF PLAINTIFF'S COPYRIGHTS ..................................581B. CIRCUMSTANTIAL EVIDENCE OF COPYRIGHT INFRINGEMENT ...................5811. Defendants' Access to the Bainbridge Home Design ................582 a. The Rubins' Access to the Bainbridge Design .................583 b. Boathouse Creek's Access to the Bainbridge Design ...........583
i. Intermediary Access by Boathouse Creek ...............583 ii. Direct Access by Boathouse Creek .....................588 c. Olsen Fine Homes and Beverly Olsen's Access to the Bainbridge Design ..........................................589 i. Intermediary Access by the Olsens ....................589 ii. Direct Access by the Olsens ..........................590 2. Substantial Similarity Between Plaintiffs Bainbridge Design and the Rubin Residence ........................................591 a. Extrinsic Similarity ........................................592 i. Extent and Scope of Copyright Protection for Plaintiffs Bainbridge Design ..................................592 ii. Extrinsic, Substantial Similarity Betwe en the Protectable Features of the Bainbridge Design and the Rubin Residence ............................596 b. Intrinsic Similarity ........................................597V. CONCLUSION ..............................................................598
This matter comes before the Court upon the filing or Renewed Motions for Summary Judgment by: (1) Olsen Fine Home Building, LLC; (2) Beverly Olsen; (3) Boathouse Creek Graphics, Inc.; (4) Rick J. Rubin; and (5) Jennifer L. Rubin (collectively "Defendants"). Olsen's Ren. Mot. for Summ. J., ECF No. 115; Boathouse's Ren. Mot. for Summ. J., ECF No. 119; Rubins' Ren. Mot. for Summ. J., ECF No. 121. The Court has subject matter jurisdiction over Charles W. Ross Builder, Inc.'s ("Plaintiff") Amended Complaint, which alleges violations of the: (1) Federal Copyright Act, 28 U.S.C. § 101, et seq.; (2) Digital Millennium Copyright Act, 17 U.S.C. § 1202(b); and (3) Lanham Act, 15 U.S.C. § 1051 et seq. Pl.'s Am. Compl., ECF No. 21.
Plaintiff is a custom home designer and builder operating primarily in the Williamsburg area of Virginia. Plaintiff is a corporation existing under the laws of the Commonwealth of Virginia and has its principal place of business in Williamsburg, Virginia. Pl.'s Am. Compl. ¶ 2, ECF No. 21.
Defendants Rick and Jennifer Rubin (collectively "the Rubins") are individuals who constructed a single-family home ("the Rubin residence") in the Ford's Colony subdivision of Williamsburg are of James City County, Virginia. Defendant Boathouse Creek Graphics, Inc. ("Boathouse Creek") is the residential design corporation that designed the Rubin residence. Boathouse Creek's President is Lisa Sawin ("Sawin"),
This is a copyright infringement suit concerning the Rubin residence. Plaintiffs Amended Complaint alleges that, prior to beginning construction of their residence, the Rubins: (1) toured a copyrighted
For the reasons set forth herein, the Court
On November 24, 2010, Plaintiff filed an Amended Complaint alleging: (1) federal copyright violations against all Defendants (Count One); (2) that the Rubins contributed to or induced said copyright infringement (Count Two); (3) violations of the Digital Millennium Copyright Act by Boathouse Creek and the Olsens (Count Three); and (4) unfair competition by Boathouse Creek and the Olsens (Count Four). Pl.'s Am. Compl., ECF No. 21.
On February 14, 2011, Defendants filed their Original Motions for Summary Judgment. Rubins' Orig. Mot. for Summ. J., Feb. 14, 2011, ECF No. 38; Olsen's Orig. Mot. for Summ. J., Feb. 14, 2011, ECF No. 40; Boathouse's Orig. Mot. for Summ. J., Feb. 14, 2011, ECF No. 44. On February 21, 2011, Plaintiff filed a Memorandum in Opposition, ECF No. 52, to those Original Motions for Summary Judgment. Each Defendant subsequently filed a Response to Plaintiff's Opposition Memorandum. Olsen's Reply to Pl.'s Mem. in Opp., Feb. 21, 2011, ECF No. 53; Rubins' Reply to Pl.'s Mem. in Opp., Feb. 22, 2011, ECF No. 54; Boathouse's Reply to Pl.'s Mem. in Opp., Feb. 28, 2011, ECF No. 56. On June 28, 2011, the parties appeared before the Court for a hearing concerning Defendants' Original Motions for Summary Judgment. On September 29, 2011, the Court issued an Opinion and Order: (1) granting the Defendants' Motions as to Counts One, Two, and Three; and (2) dismissing Count Four, without prejudice, for lack of jurisdiction. Op. & Ord., 827 F.Supp.2d 607 (E.D.Va.2011). In doing so, the Court found that the Rubin residence was not "substantially similar" to Plaintiff's copyrighted work based on the "more discerning observer," which had been relief upon by other courts to assess copyright infringement in the architectural context. Op. & Ord., 827 F.Supp.2d at 621 (citing Trek Leasing, Inc. v. U.S., 66 Fed. Cl. 8, 19 (Ct.Fed.Cl.2005)).
On October 28, 2011, Plaintiff filed a Notice of Appeal. ECF No. 79. Plaintiff appealed the Court's decision with respect to Counts One and Two of the Amended Complaint, but did not appeal as to Counts Three or Four. On appeal, Plaintiff argued that the undersigned reached an incorrect result by failing to apply the Fourth Circuit's "substantial similarity" test developed in Universal Furniture International, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417 (4th Cir.2010), which involved copyright infringement with respect to furniture design. On November 8, 2012, the Fourth Circuit issued an Opinion Finding that the test set forth in Universal Furniture extends to architectural works and, therefore, should control the Court's consideration of this matter. Op. of USCA, ECF No. 109, 496 Fed.Appx. 314 (4th Cir. 2012). Thus, the Fourth Circuit vacated the September 29, 2011 Opinion and Order granting Defendants' Original Motions for
After remand, Defendant each filed Renewed Motions for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Olsen's Ren. Mot. for Summ. J., Nov. 30, 2012, ECF No. 115; Boathouse's Ren. Mot. for Summ. J., Dec. 21, 2012, ECF No. 119; Rubins' Ren. Mot. for Summ. J., Dec. 21, 2012, ECF No. 121. On January 4, 2013, Plaintiff filed its Opposition Memorandum. Pl.'s Mem. in Opp. to Ren. Mots. for Summ. J., ECF No. 123. Each defendant then filed replies to Plaintiff's opposition. Boathouse's Reply to Pl.'s Mem. in Opp. to Ren. Mots. for Summ. J., Jan. 10, 2013, ECF No. 124; Olsen's Reply to Pl.'s Mem. in Opp. to Ren. Mots. for Summ. J., Jan. 14, 2013, ECF No. 125; Rubins' Reply to Pl.'s Mem. in Opp. to Ren. Mots. for Summ. J., Jan. 17, 2013, ECF No. 126.
On June 3, 2013, the parties appeared before the undersigned for a hearing concerning the Renewed Motions for Summary Judgment. Min. Entry, ECF No. 133. During the course of that hearing, the Court inquired as to Plaintiff's argument concerning Olsen's access to the copyrighted work. In response, Plaintiff's counsel directed the Court to a portion of Sawin's deposition and suggested a desire for additional discovery. The Court inquired as to what additional discovery Plaintiff sought, and in response Plaintiffs counsel requested an opportunity to: (1) depose Beverly Olsen; and (2) take unspecified written discovery. The Court ordered Olsen's deposition, but denied Plaintiffs request for written discovery, for which no justification had been advanced.
Plaintiff took Beverly Olsen's deposition on June 11, 2013 and filed a Notice of Filing of Deposition Transcript on June 21, 2013. ECF No. 124. Plaintiff also filed, on June 21, 2013, a Motion for Leave to File Supplemental Affidavit, ECF No. 135, and Memorandum in Support thereof, ECF No. 136. On September 26, 2013, the Court issued an Opinion and Order denying Plaintiffs Motion to File Supplemental Affidavit, having found that: (1) Plaintiff failed to comply with Rule 56(d) of the Federal Rules of Civil Procedure; and (2) such noncompliance was inexcusable. ECF No. 141, 2013 WL 5409649.
This case presents a novel situation in the area of architectural copyright law because of the myriad influences dictating nearly every design element of the two home designs at issue in this litigation. These governing forces all originate from the simple fact that both of the homes at issue are designed in traditional Georgian style and are located in the Ford's Colony subdivision of historic Williamsburg, Virginia, which renders them subject to that subdivision's design requirements.
In developing the factual predicate that will guide the Court's consideration of the Renewed Motions for Summary Judgment, the Court must "view[] all facts and draw[] all reasonable inferences in the light most favorable to the nonmoving party." Bldg. Graphics, Inc. v. Lennar Corp., 708 F.3d 573, 578 (4th Cir.2013) (citing Ga. Pac. Consumer Prods., LP v. Von Drehle Corp., 618 F.3d 441, 445 (4th Cir.2010)). "Summary judgment is only appropriate if there is no genuine dispute of material fact." Id. (citing Fed.R.Civ.P. 56(a)).
Ford's Colony is one of the largest, if not the largest, gated communities in Virginia. It comprises 3,000 lots, 2,238 individual residences, three golf courses, swimming pools, tennis courts, several recreational facilities, and a Marriott Resort Area.
Following the construction of the Wren Building, the Georgian style became the Colonial vogue in Williamsburg, as demonstrated by the numerous other residences in the area famous for their adherence to the boxy, symmetrical style. Indeed, James City County houses both "Westover Plantation" and "Carter's Grove," each of which are widely recognized as early examples of the Georgian style. See e.g., Hugh Morrison, Early American Architecture: From the First Colonial Settlements to the National Period 347 (1987); William Rotch Ware, The Georgian Period: A Series of Measured Drawings of Colonial Work, Part 6 26-35, 40-44 (1900). Westover Plantation was constructed in 1750 by William Byrd, III. Carter's Grove was built around the same time by King Carter for his grandson, Carter Burwell, and was designed by, among others, the Taliaferros, a prominent Virginia family still living in the area.
In light of its close proximity to historic Colonial Williamsburg, development in Ford's Colony is strictly limited to traditional architecture styles "indigenous to the colonial Virginia area." Ford's Colony Envtl. Control Comm., Purchaser's Handbook for Single Family Homebuilding at Ford's Colony 3 (2008) [hereinafter "Purchaser's Handbook"], available at http://www.fordscolony.com/assets/documentLibrary/few_purchasers_handbook.pdf. This is in accord with the stringent residential restrictions that apply to all Ford's Colony properties. In fact, only five architectural styles are permitted in the expansive subdivision: (1) Colonial; (2) Georgian; (3) Classical Revival (a/k/a Jefferson); (4) Federal (a/k/a Adam); and (5) Greek Revival. Id. at 11; see also Ford's Colony Williamsburg, http://www.fordscolony.com (last visited September 25, 2013) (listing acceptable design styles, though removing "Classic Revival" since the Court visited the site on February 25, 2013, which is viewable by following the "For Buyers" drop-down menu, then clicking on "Custom Home Styles").
The Environmental Control Committee ("ECC"), a development oversight body, was established to "provide reasonable and objective control over site planning, architecture, and landscaping design" within Ford's Colony. Purchaser's Handbook, supra, at 3. The ECC must approve the design of any and all homes in Ford's Colony. To this end, the ECC maintains a 103-page Purchaser's Handbook which sets forth guidelines and ECC policies concerning the construction of exterior improvements. See Id. at 3.
The ECC requires that custom homes be "as authentic as practical," and cautions that "[m]ixtures of architectural styles in one building will not normally be approved." Id. at 11 ("For example, a traditional home of the Georgian period should respect the details and disciplines of that period and not include designs of other eras."). The Ford's Colony website offers guidance on characteristic features of each architecture style, and specifically notes
The Purchaser's Handbook devotes more than 30-pages to pictorial examples of permissible and impermissible design details. For example, lone transom windows, such as might be used to light a shower or closet, are expressly disallowed. Purchaser's Handbook, supra, at 99 (Ex. VI-31). Likewise, dormers may not feature siding detail, id. at 101 (Ex. VI-33), and dormers accented with circle head windows must be designed such that the circle head projects into the pediment. Id. at 102 (Ex. VI-34). The Handbook specifies that spacing between the top of a garage door and the frieze board may not exceed four feet, id. at 100 (Ex. VI-32), and provides numerous drawn depictions of permissible cornice detail, deck column detail, chimney elevation and detail, entry pediment elevation, dormer detail, and the like. Id. at 69-103 (Ex. VI-1 to VI-36). The Handbook suggests preferred paint colors, and specifically directs purchasers to the "Historic Williamsburg" paint line by Pratt & Lambert or the "Historic Colors" line by Benjamin Moore & Co. Id. at 11.
It is under the ECC's close scrutiny that designers, such as Plaintiff and Defendants Boathouse Creek and the Olsens, design and construct custom homes in conformity with the Purchaser's Handbook and the rigidly restrictive covenants of Ford's Colony. It is, therefore, not surprising that many homes in the colonial neighborhood, particularly homes built in the same architectural style, resemble each other to a substantial degree. See Def.'s Orig. Mot. for Summ. J., Ex. 7, ECF No. 44 (twenty-one photographs of Georgian-style homes in Ford's Colony all displaying common elements of Georgian architecture). Indeed, the Purchaser's Handbook even anticipates "essentially complete duplications of exterior architectural design," although it requires that such anticipated duplications not be visually in range of each other. Purchaser's Handbook, supra, at 12 (emphasis added).
The Georgian style, as first interpreted by Italian architect Andrea Palladio, dominated the British and Colonial architectural vogue from 1714 through approximately 1837. Ingrid Cranfield, Georgian House Style: An Architectural and Interior Design Source Book 15 (1997); 5 The New Encyclopedia Britannica 204 (15th ed. 2005). Palladio emphasized proportion, requiring that "the halls ... be the central axis of the building and the rooms ... be arranged symmetrically." Cranfield, supra, at 16. Additional features typifying the Palladian style included houses of "red brick with white-painted wood trim. Interiors had central halls, elaborately turned stair balustrades, paneled walls painted in warm colours[,] and white plaster ceilings." 13 The New Encyclopedia Britannica, at 960.
Around 1760, the Georgian style gradually integrated the Adam or neo-Classical style, a Greek revival pioneered by Robert and James Adam. Cranfield, supra, at 21-22. The Adam style incorporated: (1) curved interior walls in staircase halls; (2) arches on landings and passageways; (3) ornamental Venetian windows; (4) doorways with pilasters separating the door
Beginning in about 1790, Georgian style experienced a third amalgamation called the Regency period, which "was not ... a definite style — rather a matter of `trimmings.'" Id. at 24. "On the whole, architecture at this time reflected a change in mood towards a more casual and playful, less orthodox and formal style." Id. Features of this period included
Id. at 24-25.
Taken together, the three phases comprising the Georgian period form a style generally characterized by: (1) symmetry; (2) aligned windows; (3) gambrel, gabled, or hipped roofs; (4) paneled doors accentuated by classical pilasters and a proportioned, pedimented entablature; (5) rectangular or half-round transom lights, side lights, and elliptical fanlights; (6) double-hung windows typically six over six; and (7) front entrances framed by pilasters and an entablature but no covered porch supported by columns. John Milnes Baker, American House Styles: A Concise Guide 42-47 (1994). Thus, the fundamentals of Georgian-style architecture were well-established centuries ago, and the decision to construct a Georgian-style home necessarily determines many aspects of the home's interior and exterior architectural design. As explained at Part IV(B)(2)(a)(i) of this Opinion and Order, the scope of copyright protection due Plaintiff's Bainbridge design is necessarily limited given its heavy reliance on design elements and configurations common to traditional, Georgian-style architecture, as well as the requirements of the covenants which apply to homes constructed within Ford's Colony.
Turning to the instant case, in the spring of 2009, Defendants Rick and Jennifer Rubin toured a Bainbridge model home designed, constructed, and copyrighted as a technical drawing and architectural work by the Plaintiff. The Bainbridge model home is located within Ford's Colony. The Rubins took a "For Sale" brochure with photos and sale prices as they left the tour. See Rick Rubin Aff. ¶¶ 1, 6, 12, ECF No. 38-1; Jennifer Rubin Aff. ¶¶ 1, 10, ECF No. 38-2. The brochure supplied to the Court did not include a floor plan or indicate that the Bainbridge is a copyrighted architectural work. See Pl.'s Am. Compl. Ex. 4, ECF No. 21-4.
On or about May 21, 2009, the Rubins contacted Plaintiff to schedule a meeting to discuss the construction of their custom home. Pl.'s Mem. in Opp. to Ren. Mots. for Summ. J. 5, ECF No. 123. The meeting was scheduled for June 3, 2009, but the Rubins canceled the meeting shortly thereafter, apparently because Rick Rubin felt that the person responsible for scheduling on Plaintiff's behalf had been abrupt and unpleasant. On or about May 22, 2009, Plaintiff mailed the Rubins an unsolicited, complimentary copy of its portfolio entitled Places to Call Home. That portfolio is 40-pages long and features 18 of Plaintiff's home designs, including the Bainbridge. Rick Rubin states that he received the
Plaintiff's Places to Call Home portfolio forms the basis for this suit. An artist's rendering of the front elevation of the Bainbridge with detached garage, as might be viewed from the street, appears on the 26th page of the portfolio. Drawings of the Bainbridge's first and second floor plans appear on the 27th page. There is no artist's rendering of the Bainbridge's rear or side elevations, except to the extent that those elevations are visible from the front-elevation rendering on page 26. Nor does the Places to Call Home portfolio provide floor plans for the basement or dormer floor, which is the third floor above the ground that, according to the artist's rendition on page 26, has three dormers. See Places to Call Home 5, ECF No. 21-6 (providing select pages from Places to Call Home, whereas the Court has been furnished with a complete copy of the portfolio).
Below the artist's rendition of the Bainbridge's front elevation on page 26, the Places to Call Home portfolio states: "The traditional Georgian exterior of this home belies a floor plan designed for modern life styles." Pl.'s Am. Compl. Ex. 5, at 4, ECF No. 21-6. Beneath the floor plan on page 27, the portfolio further provides: "Copyright 2006 Charles Ross Homes." Pl.'s Am. Compl. Ex. 5, at 5, ECF No. 21-6. The second to last page of the portfolio states: "No portion of any plan may be reproduced or utilized in any form or by any means without the express permission of Charles Ross Homes. Charles Ross Homes retains the exclusive right to construct the plans within a 50-mile radius of Williamsburg, Virginia." Pl.'s Am. Compl. Ex. 5, at 6, ECF No. 21-6. Thus, Plaintiff claims the exclusive right to construct the 18 home designs featured in the Places to Call Home portfolio — not only in the city of Williamsburg, where Ford's Colony is located, but also the cities of Newport News, Hampton, and Norfolk, as well as parts of Suffolk, Chesapeake, and Virginia Beach. It is this portfolio upon which Plaintiff seeks to establish its claims.
Plaintiff's Bainbridge design is an all brick, Georgian-style home with a two-story rectangular main body flanked by single-story dependencies and a detached, three-car garage connected by covered breezeway. The Bainbridge features two double-hung (sash) windows on either side of a single, centered panel door, five double-hung (sash) windows across the second story and three dormers across a gabled roof. A half-round window is displayed in both gable ends. The dormer motif is not carried over to the garage, though the garage mirrors the home with a half-round window in each gable end. The home includes dentil mould on all front cornicing and over the doorway, brick jack arches above each of the windows, shutters, paired interior chimneys, and louvered rectangle vents. The Bainbridge's single, centered paneled front door is highlighted by side lights and a rectangular transom set beneath a corresponding rectangular, covered-entry pediment.
The Bainbridge's interior presents typical Georgian balance expressed as a centered foyer symmetrically flanked by a dining room and library. The foyer leads to an open concept floor plan that connects a two-story great room to a kitchen and keeping room on the left, and a lower-level master suite on the right. The main body of the home, including the veranda, forms a perfect rectangle such that the dining room, kitchen, and keeping room share the
It also appears that, with respect to the layout of the rooms, the floor plan of the first floor of the Bainbridge is in accordance with classic Georgian style, as exemplified by the remarkably similar first floor layouts of: (1) 219 Chestnut Lane, available at Stephen Fuller Designs, http://www.stephenfullerhouseplans.com/plan_details_print.php?pid=5791 (last visited September 25, 2013); (2) "The Capistrano," available at Donald J. Gardner Designs, http://www.dongardner.com/images.aspx?pid=3938&fn=floorplans*1227dl_f.gif&f= (last visited September 25, 2013); and (3) the "Georgia Peach," available at http://www.eplans.com/house-plans/epl/styles/colonial-homes-and-house-plans/hwep102550.html (last visited September 25, 2013). In fact, the only apparent difference between the Bainbridge and these three sets of first floor plans is the size of the room Georgia Peach; and (2) "Hearth Room" and "Porch" in The Capistrano. Thus, there does not appear to be anything materially different between the aforementioned floor plans, readily available on the Internet, and those floor plans displayed in the Bainbridge's promotional materials.
The Rubin residence, on the other hand, presents as a two-story brick veneer main body flanked by single-story veneer siding dependencies connected by breezeway to a veneer siding three-car garage. The five second-story, double-hung (sash) windows balance five gabled dormers. The use of dormers is further carried over to the garage, which features three gabled dormers and rectangular windows in both the front and back gables. The Rubin residence includes paired end chimneys which run the full height of the house. The Rubins' two, centered paneled front doors are unaccompanied by a side lights or a transom.
The interior of the Rubins' home adheres to traditional Georgian emphasis on symmetry with a centered foyer that bisects a dining room and library on the first floor. Like the Bainbridge, and presumably like many other Georgian styles homes, the main body of the home forms a perfect rectangle such that the dining room, kitchen, and keeping room share the same width, and likewise the veranda, great room, and foyer/library share a similar width.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a court shall grant a motion for summary judgment "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). Summary judgment is warranted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." Id. at 323-24, 106 S.Ct. 2548.
The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. In evaluating whether that burden is met, a court must "view[] all facts and draw[] all reasonable inferences in the light most favorable to the nonmoving party." Bldg. Graphics, Inc., 708 F.3d at 578 (citing Ga. Pac. Consumer Prods., 618 F.3d at 445). If the movant makes a
In the context of copyright infringement claims, a court may properly determine non-infringement of copyright as a matter of law either when: (1) a plaintiff fails to marshal sufficient evidence to support a finding that there exists a reasonable possibility the defendant had access to the copyrighted work, Bldg. Graphics, Inc., 708 F.3d at 578 (quoting Ale House Mgmt., Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 143 (4th Cir. 2000)) (citing Armour v. Knowles, 512 F.3d 147, 152-53 (5th Cir.2007); Art Attacks Ink, LLC v. MGA Entm't Inc., 581 F.3d 1138, 1143 (9th Cir.2009)); (2) the alleged similarities concern only non-copyrightable material, see Universal Furniture, 618 F.3d at 436 (stating that the district court "would have erred had it found similarity only in the collection's noncopyrightable features") (citing Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1257 (11th Cir. 1999)); or (3) no reasonable trier of fact could find the two works in question to be substantially similar, Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.1986) (citing Warner Brothers v. American Broadcasting Co., 720 F.2d 231, 240 (1983)); Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir.1996) (citing Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.1994)).
In fact, the Eleventh Circuit has held that summary judgment is particularly appropriate where: (1) access has been established and the crucial issue is substantial similarity; (2) there may be substantial similarity with respect to non-copyrightable elements of the two works; and (3) as to non-protectable elements, there are substantial differences between the two works. Intervest Constr., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914, 920 (11th Cir.2008). As that Court stated in Intervest, "when the crucial question in a dispute involving compilations is substantial similarity at the level of protectable expression, it is often more reliably and accurately resolved in a summary judgment proceeding ... because the judge is better able to separate original expression from the non-original elements of a work." Id. (emphasis added).
"To establish a claim for copyright infringement, a plaintiff must prove that it owned a valid copyright and that the defendant copied the original elements of that copyright." Bldg. Graphics, Inc., 708 F.3d at 578 (emphasis added) (quoting Lyons P'ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 801 (4th Cir.2001)). "Copying can be proven through direct or circumstantial evidence." Id. (quoting Lyons, 243 F.3d at 801). When direct evidence is lacking, a plaintiff may create a presumption of copying by indirect evidence establishing that: (1) it is "reasonably possible" the defendant had access to the copyrighted work; and (2) the defendant's work is "substantially similar" to the protected elements of the copyrighted work. Id.
"A certificate of registration issued by the Copyright Office is `prima facie evidence of the validity of the copyright and of the facts stated in the certificate,' such as ownership. When such a certificate exists, the burden shifts to the defendant to prove that the claimed copyrights are invalid." Universal Furniture, 618 F.3d at 428 (internal citations omitted) (quoting M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 434 (4th Cir.1986)) (citing 17 U.S.C. § 410(c)); see 17 U.S.C. § 410(c) ("[T]he certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.").
Statute and case law dictate that, like a patent, the existence of a certificate of copyright carries a presumption of originality. See, e.g., Swirsky v. Carey, 376 F.3d 841, 851 (9th Cir.2004); Modern Publ'g, a Div. of Unisystems, Inc. v. Landoll, Inc., 841 F.Supp. 129, 132 (S.D.N.Y. 1994); 17 U.S.C. § 410(c). The Court, however, finds it essential to highlight the difference between patents and copyrights. A patent examiner determines the novelty of an invention prior to issuance of a patent. To secure a certificate of copyright, however, one merely needs to file his or her copyright. There is no originality analysis prior to issuance of a copyright certificate. Because "the Copyright Office tends toward cursory issuance of registrations," the Fourth Circuit has held that the presumption of originality which rides on the coattails of a copyright certificate is fairly easy to rebut. Universal Furniture, 618 F.3d at 430.
Plaintiff has tendered copies of its copyright registration certificates for the Bainbridge design. Pl.'s Am. Compl. Ex. 1, ECF No. 21-1 (copyright as architectural work); Pl.'s Am. Compl. Ex. 2, ECF No. 21-2 (copyright as technical drawing). Defendants do not contest the validity of Plaintiffs copyrights as to the alleged original elements.
Plaintiff relies on circumstantial evidence to establish its claim that Defendants copied the Bainbridge design. See generally Pl.'s Am. Compl., ECF No. 21; Pl.'s Mem. in Opp. to Ren. Mots. for Summ. J., ECF No. 123. Defendants, however, argue non-infringement of copyright as a matter of law because: (1) Plaintiff fails to marshal sufficient evidence that each Defendant had a reasonable possibility of access to the Bainbridge design; and (2) no reasonable juror could find that the Bainbridge and Rubin residence are substantially similar as to the original elements.
For the reasons set forth in Part III(B)(1) of this Opinion and Order, the Court
For the reasons set forth in Part III(B)(2) of this Opinion and Order, the Court further
The Court, therefore,
As the Fourth Circuit explained in Bldg. Graphics, Inc. v. Lennar Corp.:
708 F.3d at 578-79 (quoting Ale House Mgmt., Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 143 (4th Cir.2000)) (citing Armour v. Knowles, 512 F.3d 147, 152-53 (5th Cir.2007); Art Attacks Ink, LLC v. MGA Entm't Inc., 581 F.3d 1138, 1143 (9th Cir.2009)). A plaintiff, however, need not rely solely on an alleged infringer's direct access to the protected material. Rather, the Fourth Circuit has held:
Towler v. Sayles, 76 F.3d 579, 583 (4th Cir.1996) (citing Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 943-44 (8th Cir.1992); Meta-Film Associates, Inc. v. MCA, Inc., 586 F.Supp. 1346, 1358 (C.D.Cal.1984)).
The Rubins acknowledge by affidavit that they: (1) toured the Bainbridge model home at 204 Blackheath; (2) received a "For Sale" brochure for the Bainbridge model home at 204 Blackheath, which features photos of the home's interior, as well as its front and rear elevations; and (3) received an unsolicited copy of Plaintiff's Places to Call Home portfolio, which contained an artist rendering of the Bainbridge's front elevation, first and second floor plans, as well as room dimensions for the first and second floors. See Rick Rubin Aff. ¶¶ 1, 6, 12, ECF No. 38-1; Jennifer Rubin Aff. ¶¶ 1, 10, ECF No. 38-2. The Court
Plaintiff argues that Boathouse Creek had intermediary and direct access to the Bainbridge design. See Pl.'s Am. Compl. ¶¶ 29-34, ECF No. 21; Pl.'s Mem. in Opp. to Ren. Mots. for Summ. J. 21-23, ECF No. 123. For the reasons set forth in this subsection, the Court finds Plaintiff fails to raise a genuine issue of material fact concerning Boathouse Creek's access to the Bainbridge design.
Plaintiff argues Boathouse Creek had intermediary access to the Bainbridge design through the Rubins' tour of the model home at 204 Blackheath and the Bainbridge's promotional materials. Lisa Sawin, President of Boathouse Creek, affirms that she designed and drafted working drawings for the Rubin residence. Sawin Aff. ¶¶ 1-2, ECF No. 16-1. During his deposition, Rick Rubin also attested that he and his wife exchanged between 100 and 500 emails with Sawin concerning their custom home's design. Rick Rubin Dep. 41, 47, ECF No. 116-5. Based on that relationship and interaction, Plaintiff claims that Boathouse Creek has a reasonable possibility of access to the Bainbridge design through the Rubins. In assessing Plaintiff's claim of intermediary access, the Court is guided by the Fourth Circuit's opinions in Towler v. Sayles, 76 F.3d at 579, and Bouchat v. Baltimore Ravens, Inc., 241 F.3d at 350, in assessing Plaintiff's.
In Towler, the plaintiff, Virginia Towler ("Towler"), sought to send a copy of her
The Fourth Circuit disagreed and affirmed the district court's grant of judgment as a matter of law based on Towler's failure to present evidence upon which a jury could infer that Sayles had intermediary access to Crossed Wires. The Circuit Court noted that, at that stage of the proceedings, it had to "credit Towler's testimony that Strain said she would forward `Crossed Wires' to Sayles." Id. at 582-83. Nonetheless, the Circuit found proof of intermediary access wanting where there was no evidence that: (1) Strain actually sent a copy of Crossed Wires to Sayles; or (2) Sayles actually received a copy of Crossed Wires. That evidentiary gap was enlarged "by Sayles' testimony ... that he never received `Crossed Wires' from Strain," and Towler's failure to present evidence that Sayles' testimony was untruthful. Therefore, the Fourth Circuit found that Towler failed to present evidence upon which a jury could infer Sayles' intermediary access to the copyrighted screenplay. Id. at 583; see also id. (further finding Towler's speculative reasoning unpersuasive because there was "no evidence that either [Strain or Stone]... or SCS generally, had any contact with Sayles during the period he was working on" the alleged infringing work).
In Bouchat, on the other hand, amateur artist Frederick E. Bouchat ("Bouchat") created a team logo upon learning that Baltimore's new football team would be called the Ravens. 241 F.3d at 352. Bouchat then met with John Moag ("Moag"), Chairman of the Maryland Stadium Authority, who offered to pass Bouchat's drawings along to the Ravens leadership for consideration. On April 1 or 2, 2006, Bouchat faxed his drawings to Moag at the Maryland Stadium Authority. Bouchat received a fax confirmation, but did not retain the printed confirmation receipt. Id. at 353. Moag shared an office with David Modell ("Modell"), the Ravens' team owner. Id. at 354. On April 2, 2006, Modell met with a representative from the NFL design team to discuss the Ravens' logo. In June 1996, the Ravens unveiled their new logo, which was substantially similar to one of the drawings Bouchat had faxed to Moag. Id. at 353. The case was tried before a jury and a verdict was returned in Bouchat's favor. Id. at 352. On appeal, the defendants argued that Bouchat's proof of intermediary access amounted only to a legally insufficient "tortuous chain of hypothetical transmittal." The Fourth Circuit disagreed, finding that Bouchat had sufficiently proven intermediary access by producing evidence that: (1) the logo was transmitted to Moag; and (2) Moag had a close relationship with Modell, by virtue of their sharing a common office. Id. at 354.
The intermediaries in Towler and Bouchat actually received copies of the protected works, yet the Fourth Circuit reached a different result concerning the issue of access in each case. What distinguishes those cases is the alleged infringer's access to the copies received by the intermediary. In Towler, Strain and Sayles did not maintain
The Rubins' relationship with Boathouse Creek, in the Court's view, is analogous to the facts of Towler. The Rubins and Boathouse Creek maintained a closer relationship than that in Towler, having exchanged between 100 and 500 emails concerning the design of the Rubins residence. But, that relationship falls far short of Bouchat, as Boathouse Creek could not access the Bainbridge design absent the Rubins' affirmative transmittal of the information and materials in their possession to Sawin, Boathouse Creek's President. Plaintiff, therefore, must advance some modicum of evidence that the Rubins actually transmitted the Bainbridge design to Boathouse Creek.
In affirming the district court's grant of judgment as a matter of law, the Fourth Circuit in Towler emphasized that the plaintiff's case suffered from a gap in proof:
Towler, 76 F.3d at 583 (citing Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 113 (5th Cir.1978)); see also Bouchat, 241 F.3d at 354 (stating that Towler found inadequate proof of access because "[t]here was no evidence that the agents had sent the work to the defendant, only the plaintiff's suggestion that such a transmittal was hypothetically possible.").
Plaintiff relies on the same sort of speculative allegations the Fourth Circuit
The Court's finding that Plaintiff has failed to marshal sufficient evidence to support an inference that Boathouse Creek accessed the Bainbridge through the Rubins is bolstered by affidavits and depositions. See Towler, 76 F.3d at 583 (stating that the gap in proof of intermediary access was enlarged by alleged infringer's testimony that he never received the copyrighted work from the intermediary, and the plaintiff never introduced evidence upon which a jury could base an inference that the alleged infringer was untruthful). The Rubins each affirm that they: (1) never provided Boathouse Creek with Plaintiffs copyrighted work or any other material from Plaintiff; and (2) never instructed Boathouse Creek to design a home based Plaintiffs copyrighted work. See Rick Rubin Aff. ¶¶ 13-14, ECF No. 38-1; Jennifer Rubin Aff. ¶¶ 11-12, ECF No. 38-2. Likewise, Lisa Sawin affirms that: (1) the Rubins never requested Boathouse Creek to create plans or construct a home based on Plaintiffs copyrighted work; and (2) Boathouse Creek never viewed or possessed plans for the copyrighted work prior to the filing of Plaintiff's Complaint. Sawin Aff. ¶¶ 4-6, ECF No. 116-6. The depositions of Rick Rubin and Lisa Sawin are consistent with these affidavits, and the Plaintiff has not presented evidence upon which a jury could base an inference that any of these statements are untruthful.
Having only alleged the "mere possibility of access," the Court
Plaintiff further argues that the Court should forego ruling on Boathouse Creek's access to the Bainbridge at this stage of the proceedings based on paragraph three of Lisa Sawin's Affidavit, which states: "At no time prior to the filing of plaintiffs Complaint do I recall seeing or discussing with the Rubins a copy of Charles Ross Homes' portfolio, Places to Call Home, and study plan." Sawin Aff. ¶ 3, ECF No. 16-1 (emphasis added). Plaintiff insists it is entitled to additional discovery based on Sawin's use of the word "recall," which Plaintiff characterizes as a self-serving denial. Pl.'s Mem. in Opp. to Ren. Mots. for Summ. J. 8, ECF No. 123.
The Court finds Plaintiffs argument unpersuasive. First, the definite statements set forth in paragraphs four to seven of Sawin's Affidavit resolve any qualification in paragraph three. Sawin Aff. ¶¶ 4-7, ECF No. 16-1. Moreover, Sawin addressed this in a more definite manner at her deposition. During the course of the deposition, Plaintiffs counsel asked Sawin if the Rubins had brought any flyers to their initial design meeting, to which Sawin replied: "I know not to look at other
Second, the Court has provided Plaintiff ample opportunity to perform discovery on this issue. Sawin's Affidavit was originally filed on November 16, 2010, Sawin Aff., ECF No. 16-1, as an attachment to Boathouse Creek's Motion for Summary Judgment, ECF No. 16, concerning Plaintiffs Original Complaint, ECF No. 1. After amending its Complaint, Pl.'s Am. Compl., ECF No. 21, and Boathouse Creek filing its Original Motion for Summary Judgment, ECF No. 44, Plaintiff filed a Memorandum in Opposition to all of the Defendants' Original Motions for Summary Judgment on February 21, 2011, ECF No. 52. In its Opposition Memorandum, Plaintiff requested that the Court defer consideration of the Original Motions for Summary Judgment and provide it an opportunity to perform discovery pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. Pl.'s Opp. Mem. 4, ECF No. 52; see also Burns' Aff. 4, ECF No. 52-1 (stating that "[a]t a minimum, the depositions of Lisa Moberg [a/k/a Sawin], Rick Rubin, and Beverly Olsen are required").
On August 9, 2011, the Court held a hearing concerning Megan E. Burns' ("Burns")
Plaintiff deposed Sawin on September 1, 2011. Sawin Dep., ECF No. 116-8. Rather than Burns, who argued the point before the Court, Plaintiff was represented at that deposition by John C. Lynch ("Lynch"), also of the firm Troutman & Sanders. During the course of that deposition, Lynch never mentions the Places to Call Home portfolio by name. He does, however, question Sawin concerning about an "Exhibit 2," which appears to reference Plaintiff's portfolio.
The Court has provided Plaintiff an opportunity to depose Sawin on her use of the word "recall" in her Affidavit. Insofar as "Exhibit 2" refers the Places to Call Home portfolio, no further delay is warranted, as Sawin's deposition resolves any qualification set forth in her Affidavit. Insofar as "Exhibit 2" does not refer to the
Plaintiff's counsel chose not to refer to the Places to Call Home portfolio by name during the course of Sawin's deposition. Regardless of counsel's motivation for questioning Sawin in that matter, the Court is satisfied that Plaintiff has had ample opportunity to address any equivocation in Sawin's Affidavit, and will not further delay these proceedings or permit Plaintiffs counsel to manufacture a genuine issue of material fact based on their failure to properly depose a witness or file a complete copy of Sawin's deposition with the Court. See also Ord., Sept. 26, 2013, ECF No. 141 (finding that Plaintiff is not entitled to further discovery because, since remand, Plaintiff has failed to: (1) comply with Rule 56(d) of the Federal Rules of Civil Procedure; and (2) diligently pursue discovery).
Plaintiff also alleges that Boathouse Creek had direct access to the Bainbridge design through: (1) photos and information concerning the Bainbridge model home at 204 Blackheath posted on various Relator websites, one of which included a study plan of each level of the home; (2) the Bainbridge model home at 204 Blackheath's placement on a corner lot, which rendered the front, right side, and rear elevations subject to photography from the street; and (3) filings of the Bainbridge plan with the James City County Code Compliance office and the Ford Colony's Environmental Control Committee ("ECC"). See Pl.'s Am. Compl. ¶¶ 17-27, ECF No. 21. Plaintiff does not, however, go so far as to allege that Boathouse Creek actually accessed the Bainbridge through any of these means.
As the district court explained in Building Graphics, Inc. v. Lennar Corp., "[p]ublic dissemination of a work `merely creates the possibility of access,' and courts have consistently held that the fact that a defendant `could have' or `might have' engaged in alleged conduct, without any substantive evidence, amounts to `mere speculation'" and is insufficient to establish access. 866 F.Supp.2d 530, 541 (W.D.N.C.2011), aff'd, Bldg. Graphics, 708 F.3d at 573 (citing Bell v. E. Davis Int'l, Inc., 197 F.Supp.2d 449, 461-62 (W.D.N.C. 2002) (J. Thornburg)).
Plaintiff's allegations that Boathouse Creek accessed the Bainbridge design via Relator websites, the model home's placement on a corner lot, and public records amounts to mere speculation. Plaintiff allegations raise the "mere possibility of access," and there is absolutely no evidence from which a jury could infer a "reasonable possibility" of Boathouse Creek's direct access to the Bainbridge through these means. That gap in proof is enlarged by Sawin's Affidavit, in which she affirms to have never accessed the Bainbridge by the aforementioned means. Plaintiff has given the Court no reason to doubt the truthfulness of Sawin's representations. Cf. Towler, 76 F.3d at 583 (stating gap in proof of intermediary access was enlarged by alleged infringer's testimony, and plaintiff never introduced evidence to doubt truth of that testimony).
Plaintiff argues that the Olsens had intermediary and direct access to the Bainbridge design. For reasons set forth in this subsection, the Court
Plaintiff argues that the Olsens had access to the Bainbridge design through the Rubins. Applying the standard developed in Part III(B)(1)(b)(i) of this Opinion and Order, the Court
First, to maintain that an alleged infringer had a reasonable possibility of intermediary access to a copyrighted work, a plaintiff must establish that the alleged infringer and intermediary maintained a "close relationship" and that their dealings involved some overlap in subject matter. See Towler, 76 F.3d at 583. A close relationship may, for example, be found where the: (1) intermediary supervises the alleged infringer; (2) intermediary and alleged infringer are employed in the same department; (3) intermediary and alleged infringer share office space; or (4) intermediary and alleged infringer exchange creative ideas. See Bouchat, 241 F.3d at 354 (referencing shared office space); Towler, 76 F.3d at 583 (referencing supervision, employment in a common department, and the exchange of creative ideas).
By Plaintiff's own admission, the Olsens were only involved in the construction of the Rubin residence based on plans prepared by Boathouse Creek. Pl.'s Am. Compl. ¶ 28, ECF No. 21 ("In 2010, Charles Ross discovered that Olsen FHB [the Olsens] had been engaged to construct a home for the Rubins using plans (the "Infringing Plans") prepared by BC Graphics [Boathouse Creek]...." (emphasis added)). This is not the sort of "close relationship" on which a claim of intermediary access may be based.
In reaching that conclusion, the Court is guided by the employment examples offered in Towler. The Fourth Circuit did not suggest that a close relationship may be premised merely on common employment. Rather, the Towler opinion offers examples that evidence a more intimate association between the intermediary and alleged infringer. 76 F.3d at 583 (referencing supervision and employment in a common department). The relationship between the Rubins and Olsens — i.e., the relationship between a homeowner and general contractor — does not evidence such intimacy. Their relationship was purely contractual. Nor does home construction, based on plans supplied by a third party, require a general contractor to exchange creative ideas with a homeowner. See Pl.'s Am. Compl. ¶ 28, ECF No. 21 (alleging that the Olsens merely constructed the Rubins' residence based on plans supplied by Boathouse Creek). Therefore, the Court
Second, Plaintiff fails to produce evidence that the Rubins actually transmitted the Bainbridge design to the Olsens. The Olsens deny accessing the Bainbridge design prior to Plaintiff filing its Original Complaint. Olsen's Mem. in Supp. of Ren. Mot. for Summ. J. 2-9, ECF No. 116. Plaintiff insists, however, that the Olsens' denial of intermediary access "is cast into
Therefore, the Court
As with Boathouse Creek, Plaintiffs Amended Complaint alleges that the Olsens had access to the Bainbridge design through: (1) Realtor website listings; (2) the Bainbridge model home at 204 Blackheath's placement on a corner lot; and (3) filings of the Bainbridge plan with the James City County Code Compliance office and the Ford Colony's ECC. See Pl.'s Am. Compl. ¶¶ 17-27, ECF No. 21. Plaintiff, however, fails to offer any evidence that the Olsens actually accessed the Bainbridge by these means. Pursuant to the standard set forth at Part III(B)(1)(c)(ii) of his Opinion and Order, these allegations amount to mere speculation. Therefore, the Court
Plaintiff also argues Olsen's direct access to the Bainbridge based on portions of Sawin's and Olsen's deposition. During the course of Sawin's deposition, Plaintiff asked "[h]as the words "Charles Ross" ever been referred to in any ... emails" that Sawin exchanged with Olsen. Sawin Dep. 24, ECF No. 116-8. In response, Sawin explained that in March 2010, during the construction phase — i.e., after the design for the Rubin residence had been completed — Olsen raised concerns about the cost of producing the oversized sheets on which Sawin was supplying her plans. During their email exchange, Sawin suggested that the plans would not fit on the smaller size sheets, but Olsen replied that "[s]he had seen a plan of Charles Ross.... where it would work." Sawin Dep. 24, ECF No. 116-8. Sawin, however, further stated that the Bainbridge had never been mentioned in any email. Sawin Dep. 25, ECF No. 116-8.
Based on Sawin's comments, the Court permitted Plaintiff to depose Beverly Olsen concerning her direct access to the Bainbridge design. Plaintiff took Beverly Olsen's deposition on June 11, 2013 and filed a Notice of Filing of Deposition Transcript on June 21, 2013. Olsen Dep., ECF No. 134-1. During her deposition, Olsen stated that, in the early part of 2010, she
Olsen further stated that, insofar as she viewed any plan produced by Plaintiff, it would have been a cursory viewing for the purpose of looking at the scale of the drawing. Olsen Dep. 15:20-15:23, ECF No. 134-1. Moreover, during her deposition, Olsen testified that she had not discussed the plan that she had seen with the Rubins or Sawin, nor did she sketch or photograph that plan, or take notes concerning the plan. Olsen Dep. 18:3-18:8, ECF No. 134-1. Finally, Olsen testified that the design of the Rubin residence had been completed in March 2010, during the construction phase when she would have viewed one of Plaintiff's plans. Olsen Dep. 19:24-20:13, ECF No. 134-1. After viewing the plans, Olsen "did not make any changes[,] nor recommend any changes" to the Rubin residence's design. Olsen Dep. 20:8-20:13, ECF No. 134-1.
As the Fourth Circuit has recently explained, to rely successfully on circumstantial evidence of copyright infringement, a plaintiff must show more than a "mere possibility" of a defendant's access to the copyrighted work. Rather, "it must be `reasonably possible the paths of the infringer and the infringed work crossed.'" Bldg. Graphics, Inc., 708 F.3d at 578 (quoting Ale House Mgmt., 205 F.3d at 143) (citing Armour, 512 F.3d at 152-53; Art Attacks Ink, LLC, 581 F.3d at 1143). By Olsen's deposition, Plaintiff has raised the "mere possibility," rather than a reasonable possibility, that the design plan viewed by Olsen was the Bainbridge — i.e., the copyrighted work involved in this case. Therefore, the Court
To present a valid claim of copyright infringement based or circumstantial evidence, a plaintiff must adequately allege that the copyrighted and alleged infringing works are "substantially similar." Substantial similarity is a two-pronged test. "[T]o prove substantial similarity, a plaintiff must show that the works are (1) `extrinsically similar because they contain substantially similar ideas that are subject to copyright protection,' and (2) `intrinsically similar in the sense that they express those ideas in a substantially similar manner from the perspective of the intended
Extrinsic similarity "is an objective inquiry, which requires Consideration of `external criteria of substantial similarities in both ideas and expression.'" Id. (quoting Universal Furniture, 618 F.3d at 435-36). In conducting its extrinsic inquiry, "a court must consider whether the two works `contain substantially similar ideas that are subject to copyright protection.'" Id. (quoting Lyons, 243 F.3d at 801). Expert testimony may be helpful to a court's determination of extrinsic similarity. Id. (citing Universal Furniture, 618 F.3d at 435-36; Towler, 76 F.3d at 583).
"By contrast, intrinsic similarity is a subjective inquiry, which requires consideration of `the total concept and feel of the works, but only as seen through the eyes of the ... intended audience of the plaintiffs work.'" Id. (internal citation omitted) (quoting Universal Furniture, 618 F.3d at 436) (citing Towler, 76 F.3d at 583-84). "[T]he 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. at 318-19 (quoting Universal Furniture, 618 F.3d at 436). The intrinsic similarity inquiry "generally does not require the aid of expert testimony." Charles W. Ross, 496 Fed.Appx. at 319 (citing Towler, 76 F.3d at 583-84).
In conducting its intrinsic inquiry, the Fourth Circuit has held that "a court should be hesitant to find that the lay public does not fairly represent a work's intended audience." Dawson, 905 F.2d at 737. Departure from a lay-public standard is only appropriate where the intended audience has "specialized expertise," which "must go beyond mere differences in taste and instead must rise to the level of the possession of knowledge that the lay public lacks." Id.
In conducting its extrinsic similarity inquiry, "a court must consider whether the two works `contain substantially similar ideas that are subject to copyright protection.'" Charles W. Ross, 496 Fed.Appx. at 318 (emphasis added) (quoting Lyons, 243 F.3d at 801). Since only "ideas that are subject to copyright protection" should be considered, the Court must first determine the extent and scope of copyright protection for the Bainbridge design.
Copyright protection extends to "original works of authorship fixed in any tangible
The legislative history suggests that, by extending the Copyright Act's protections to the "arrangement and composition of spaces and elements," Congress sought to recognize that "creativity in architecture frequently takes the form of a selection, cc ordination, or arrangement of unprotectible elements into an original, protectible whole." H.R.Rep. No. 101-735 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6949. By its own terms, however, the Act does not protect "individual standard features." 17 U.S.C. § 101 (excluding "individual standard features" from the definition of "architectural work"). Examples of individual standard features include "common windows, doors, or other staple building components." H.R.Rep. No. 101-735 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6949. "A grant of exclusive rights in such features would impede, rather than promote, the progress of architectural innovation," though that exception is not "intended to exclude ... any individual features that reflect to architect's creativity." H.R.Rep. No. 101-735 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6949. The Act also does not protect "standard configurations of spaces," 37 C.F.R. § 202.11(d)(2), or design elements that are functionally required, H.R.Rep. No. 101-735 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6951-52 ("Protection would be denied for functionally determined elements....").
Congress did not intend, by its effort to define what is and is not protected in the definition of "architectural work," to suggest that a different standard of originality or similarity applies in the architectural context. See H.R.Rep. No. 101-735 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6952 (stating purpose for definitional elements of "architectural work"). Rather, Congress sought to "give the courts some guidance regarding the nature of ... protected matter" under the AWCPA. H.R.Rep. No. 101-735 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6952. To that end, "[t]he proper scope of protection for architectural works is distinct from registrability," and the scope of copyright protection is ultimately "to be made on an ad hoc basis" by the courts. H.R.Rep. No. 101-735 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6952; see also Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 348, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) ("The mere fact that a work is copyrighted does not mean that every element of the work may be protected.").
It appears that Congress sought, in adopting the AWCPA, to protect only those "features [of architectural works] that reflect the architect's creativity," while excluding from the Copyright Act any unoriginal features, the protection of which "would impede, rather than promote, the progress of architectural innovation." H.R.Rep. No. 101-735 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6952. As an architectural work, Plaintiff's Bainbridge design is no doubt entitled to some measure of copyright protection. But, that measure of protection is very limited for three distinct, but related reasons.
Amongst those design elements on the Bainbridge which constitute non-protectable, individual standard features are the: (1) inclusion of a basement foundation and "walk out" porch, which the Court has reviewed and finds to be nothing more than a standard concrete patio running the length of the main home's rear elevation, Pl.'s Am. Compl. ¶¶ 35B, 35K, ECF No. 21; (2) use of common 10-foot ceilings in the basement and first levels, and 9-foot ceilings on the second level, Pl.'s Am. Compl. ¶ 35C, ECF No. 21; (3) inclusion of a three-car garage in a courtyard configuration, Pl.'s Am. Compl. ¶ 35E, ECF No. 21; (4) the use of a covered breezeway and a "masonry walking surface" — i.e., a sidewalk — to connect the house and garage, Pl.'s Am. Compl. ¶ 35F, ECF No. 21; (5) use of architectural shingles on roofing surfaces, Pl.'s Am. Compl. ¶¶ 35G, 35N ECF No. 21; (6) use of boxed eave returns on the gable ends of a home and garage, Pl.'s Am. Compl. ¶ 35G, ECF No. 21; (7) use of a "low-pitched roof' on portions of a rear elevation, Pl.'s Am. Compl. ¶ 35H, ECF No. 21; (8) use of French Doors to allow for ingress and egress from the interior's first floor to the "Veranda" — i.e., a roofed porch, Pl.'s Am. Compl. ¶ 351, ECF No. 21; (9) inclusion of a first floor Master Suite with boxed bay sitting area, Pl.'s Am. Compl. ¶¶ 35K-L, 35CC, ECF No. 21; (10) inclusion of commonly-sized windows and doors, Pl.'s Am. Compl. ¶ 35P, ECF No. 21; (11) use of a shed-type roof on a box bay, Pl.'s Am. Compl. ¶ 35N, ECF No. 21; (12) use of the terms "Dining Room," "Foyer," "Library," "Kitchen," "Master Bedroom," "Master Bath," "Half Bath," and "Garage" to describe various rooms, which are so common as to be industry standard, Pl.'s Am. Compl. ¶¶ 35R-35S, ECF No. 21; (13) inclusion of a roughed-in future bath and storage areas in the basement, Pl.'s Am. Compl. ¶ 35T, ECF No. 21; (14) use of a tray ceiling, as well as the inclusion of a "niche" for the storage of china and flatware, in the dining room, Pl.'s Am. Compl. ¶ 35V, ECF No. 21; and (15) inclusion of a first-floor bedroom with an ensuite bathroom, Pl.'s Am. Compl. ¶¶ 35DD-35EE, ECF No. 21.
Second, Plaintiff relies heavily on design elements that are beyond the Copyright Act's scope because they are either indispensable or common to Georgian-style architecture. See Trek Leasing, 66 Fed.Cl. 8 at 20-21 (the use of stone, mortar, capstones, and parapets was unprotectable under the Copyright Act because such features are very common to the BIA Pueblo Revival Style). Use of standard, Georgian-style architectural features does not render the copyrighted work unoriginal but, because it borrows heavily from the public domain, the Bainbridge is entitled to narrower copyright protection than a work composed of wholly original elements.
For instance, Plaintiff's Amended Complaint alleges that "[b]oth the Copyrighted Work and the Infringing House are Georgian architectural style" which depict "a two-story main body flanked by one-story wings." Pl.'s Am. Compl. ¶ 35A. A two-story main building flanked by one-story wings is common to nearly all Georgian-style
Plaintiff's reliance on Georgian-style architecture goes well beyond these limited examples. In fact, Plaintiff acknowledges as much in its Places to Call Home portfolio, having represented that the Bainbridge's "traditional Georgian exterior... belies a floor plan designed for modern lifestyles."
Finally, that the Bainbridge was designed to satisfy the stringent residential restrictions which apply to all Ford's Colony properties has substantial bearing on the scope of Plaintiff's copyright. Congress only sought to afford copyright protection to design elements insofar as they reflect the architect's creativity. An architectural design element mandated by a residential restriction does not evidence such creativity and, therefore, that element is not subject to the Copyright Act's protections. To hold otherwise would invite builders within carefully planned communities, such as Ford's Colony, to gain monopolies by securing copyright certificates for iterations of permissible home design styles. Amongst those features which are non-protectable because their inclusion is mandated by Ford's Colony include the: (1) inclusion of a side-entry garage, which is mandatory absent special circumstances, Pl.'s Am. Compl. ¶ 35E, ECF No. 21; see Purchaser's Handbook, supra, at 24; and (2) use of a brick foundation on the rear elevation's box bay, Pl.'s Am. Compl. ¶¶ 35L-M, 35CC, ECF No. 21; see Purchaser's Handbook, supra, at 22 ("All foundations exposed to view shall be brick.").
The Court cannot definitively say whether the remaining allegations of substantial similarity set forth in Plaintiff's Amended Complaint pertain to protectable design elements. However, as this matter comes before the Court upon Defendants' Renewed Motions for Summary Judgment, the Court must "view[] all facts and draw[] all reasonable inferences in the light most favorable to the" Plaintiff. See Bldg. Graphics., 708 F.3d at 578 (citing Ga. Pac. Consumer Prods., 618 F.3d at 445). Therefore, for the limited purpose of considering Defendants' Renewed Motions for Summary Judgment the Court will presume, without so finding, that Plaintiff's remaining allegations of substantial similarity pertain to protectable design elements.
Plaintiff's remaining allegations of substantial similarity concern the coordination and arrangement of elements and spaces in the Bainbridge and Rubin residence's rear elevations, basements, and first floors. See Pl.'s Am. Compl. ¶¶ 35H, 35J, 35N-350, 35U, 35W-35X, 35Y-35CC, 35FF. The Court finds that those allegations fail to raise a genuine issue of material fact concerning whether the Bainbridge and Rubin residence are, extrinsically speaking, substantially similar.
The Court reaches that conclusion by looking beyond Plaintiff's alleged similarities to the many differences between the two works. See Ale House, 205 F.3d at 142-44 (Fourth Circuit affirming district court's grant of summary judgment based on pleadings and finding that copyrighted and alleged infringing design plans were not "substantially similar" as a matter of law due to dissimilarities in: (1) size and proportion of seating; (2) placement of pool tables; and (3) dimensions and proportions of the bars); see also Howard v. Sterchi, 974 F.2d 1272, 1276 (11th Cir. 1992) (affirming district court's finding that defendant failed to establish substantial similarity because, "although the floor plans are visually similar and the layout is generally the same, the dissimilarities are significant" and emphasizing that because "[t]he variety of ways a two-story rectangle can be divided ... is finite.... [i]n architectural plans of this type, modest dissimilarities are more significant than they may be in other types of art works."); Wickham v. Knoxville Int'l Energy Exposition, Inc., 739 F.2d 1094, 1097 (6th Cir. 1984) (finding that district court correctly concluded, on motion for summary judgment, that as a matter of law no substantial similarity existed between plaintiff's and defendants' works where substantial design differences existed); Bldg. Graphics, Inc. v. Lennar Corp., 866 F.Supp.2d 530, 544-45 (W.D.N.C.2011) (discussing differences in performing substantial similarity analysis).
Lisa Sawin, by affidavit, alleges that there are a number of differences between the Bainbridge and Rubin residence. Sawin Aff., ECF No. 120-1. Boathouse Creek incorporated a partial list of those differences in its Memorandum in Support of the Renewed Motion for Summary
The Court has carefully reviewed the list of alleged differences and Plaintiffs objections, comparing each subparagraph to design plans and photographs of the Bainbridge and Rubin residence. As the nonmoving party, the Court resolved any disagreement or doubt concerning these alleged differences in Plaintiffs favor. This process resulted in a list, set forth in the Appendix to this Opinion and Order, of no fewer than 86 substantive differences between the Bainbridge and Rubin residence. Many of those differences pertain to the rear elevations, basements, and first floors of the Bainbridge and Rubin residence, the very areas on which Plaintiffs claims of substantial similarity rest.
The Court
Plaintiff argues that the ordinary observer of a custom-built home is the lay public. Defendants, on the other hand, argue that the ordinary observer of a custom-built home possess "specialized expertise," insofar as they are more likely to detect subtle differences between two home designs. The Court need not resolve this dispute. The Court will assume, without so finding, that the less discerning lay-person standard sought by Plaintiff applies. Even applying that standard, however, the Court
The Court has carefully assessed the "total concept and feel" of the two homes based on plans and photographs submitted by the parties. There are surely similarities amongst these homes. But, of course, there are similarities amongst most modern homes. As with most modern homes, both the Bainbridge and Rubin residence have a front door, windows, and a garage. The interiors are also similar in that there are three levels divided, with the spaces designated for common purposes — e.g., a foyer, kitchen, guest bedroom, and main bedroom. In the Court's view, even a lay person would have enough sense to know that they should not find that two homes are substantially similar in "total concept and feel" based on such superficial commonalities. To hold otherwise would negate the intrinsic inquiry in the architectural context, as there would rarely be a case where the jury would not find two homes to be substantially similar in total concept and feel.
The Court, therefore,
For the reasons set forth in Part III(A) of this Opinion and Order, the Court finds that Plaintiffs allegations: (1) raise a genuine issue of material fact concerning the Rubins' access to the Bainbridge design; but (2) fail to raise a genuine issue of material fact concerning access to the Bainbridge by Boathouse Creek and the Olsens. The Court, therefore,
For the reasons set forth in Part III(B) of this Opinion and Order, the Court finds that Plaintiffs allegations fail to raise a genuine issue of material fact concerning: (1) whether the Bainbridge and Rubin residence are, extrinsically speaking, "substantially similar" with respect to their protectable elements; and (2) whether the Bainbridge and Rubin residence are, intrinsically speaking, "substantially similar." The Court, therefore,
The Court
The Clerk is
The Court does not need to resolve whether this Circuit has embraced the "strikingly similar" doctrine. For reasons set forth in Part III(B)(2) of this Opinion and Order, the Court finds that the Bainbridge design and Rubin residence are not "substantially similar," much less "strikingly similar." The Court, will forego discussion of the "strikingly similar" doctrine in assessing each Defendant's access to the Bainbridge design.
The Court, therefore, has little sympathy for Plaintiff insofar as it may argue that it was not afforded adequate discovery to establish transmittal between the Rubins and Boathouse Creek. Insofar as Plaintiff desired additional discovery, it should have timely filed a Rule 56(d) Affidavit or, at least, filed a motion for additional discovery with the Court. Over the last nine months Plaintiff has done neither. As explained in its September 26, 2013 Opinion and Order, "[t]he Court will not allow Plaintiff to further delay a ruling on" the Renewed Motions for Summary Judgment based on its failure to comply with the Federal Rules or diligently pursue discovery.
