Opinion
Civil No. 3:03CV168-H.
August 2, 2004
MEMORANDUM AND ORDER
THIS MATTER is before the Court on the following motions and memoranda:
1. The "Plaintiffs' Motion for [Partial] Summary Judgment" (document #40) and "Brief in Support . . ." (document #41), both filed May 26, 2004;
2. Defendants' "Response . . . and Counter-Motion for Summary Judgment" (document #43) filed June 4, 2004;
3. Plaintiffs' "Reply Brief in Support of Plaintiff's Motion for Summary Judgment" (document #45) filed June 18, 2004;
4. Plaintiffs' "Response to Poovey's Motion for Summary Judgment" (document #46) filed June 21, 2004;
5. Defendants' "Motion to Strike Exhibit 1 and Consolidated Sur-Reply and Reply . . ." (document #48) filed June 25, 2004; and
6. Plaintiffs' "Response to Motion to Strike . . ." (document #49) filed July 12, 2004.
The Defendants have not filed a reply in support of their Motion to Strike and the time for filing a reply brief has expired.
The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c), and these motions are now ripe for determination.
Having carefully considered the parties' arguments, the record, and the applicable authority, the undersigned will grant the "Plaintiffs' Motion for [Partial] Summary Judgment" (document #40) and deny Defendants' "Counter-Motion for Summary Judgment" (document #43) and "Motion to Strike" (document #48), as discussed below.
I. FACTUAL AND PROCEDURAL HISTORY
This is a copyright infringement action seeking compensatory damages and equitable relief pursuant to the United States Copyright Act, 17 U.S.C. § 501, et. seq.. The Plaintiff John Wieland Homes and Neighborhoods, Inc., a Georgia corporation maintaining its principal office in Atlanta, is the parent company of Plaintiff John Wieland Homes and Neighborhoods of the Carolinas, Inc. (collectively "Wieland"), a North Carolina corporation maintaining its principal place of business in Charlotte, North Carolina.
Wieland is in the business of designing and building homes and residential neighborhoods. This action concerns a particular Wieland home design, THE COLUMBIA, which prior to the events at issue herein, Wieland had registered with the United States Copyright Office, both as to THE COLUMBIA's technical drawings and as to the architectural work itself.
Sometime in late 2000, Vincent G. Marks and Ann M. Marks ("the Marks"), who are former Defendants in this action and who were then planning to build a new home, visited BridgeHampton, a Wieland neighborhood in Charlotte, North Carolina, where Wieland had built a model home on THE COLUMBIA design. The Marks toured the model home and obtained a COLUMBIA "cut sheet," that is, a simplified floor plan and elevation of the home that home builders provide to potential home buyers. However, the Marks never purchased a COLUMBIA home or a set of technical drawings from Wieland nor otherwise asked for or received Wieland's permission to build a home on THE COLUMBIA design.
Instead, the Marks hired Defendant James Steven Poovey, a draftsman who resides in Cabarrus County, North Carolina, and who is the primary shareholder and corporate officer of Defendant Steve Poovey Residential Design, Inc. (collectively "Mr. Poovey"), to prepare a set of technical drawings for their new home.
Although the record does not reflect the dates of the meetings, the Marks met with Mr. Poovey on at least three occasions. In the light most favorable to Mr. Poovey, at their first meeting, the Marks gave him "three or four" cut sheets. In his deposition testimony, as well as in his responses to Wieland's Interrogatories, Mr. Poovey admitted that he used one of those cut sheets in preparing the Marks' technical drawings, that is, that he and the Marks discussed one cut sheet, which was "basically similar to what [the Marks] wanted"; that he made handwritten notes on that sheet, and that he later used it, with some "revisions," as he prepared the Marks' drawings.
Mr. Poovey bases his Counter-Motion for Summary Judgment, as well as his opposition to the Plaintiff's Motion for Summary Judgment, almost exclusively on the contention that there is no evidence that the cut sheet he used was, in fact, THE COLUMBIA design. Contrary to the contentions in his briefs, however, Mr. Poovey did not testify in his deposition that the cut sheet was not THE COLUMBIA design, but only that he could not recall whether it was THE COLUMBIA plan.
Defendant Poovey was not able to produce the disputed cut sheet during discovery because, as he testified, it is his practice to throw away all preliminary notes and sketches.
Mr. Marks testified that although he and Mrs. Marks had visited many new home developments in the Charlotte area and had obtained cut sheets of several homes, only one of those came from a home that he and Mrs. Marks had actually toured, the Wieland model home in BridgeHampton. Although Mr. Marks could not recall whether the Wieland name or the words "THE COLUMBIA" appeared on the cut sheet, he further testified that it was THE COLUMBIA cut sheet, that is, the one taken from the model home that he and Mrs. Marks had visited, that Mr. Poovey took notes upon during their first and subsequent meetings and used to prepare their house plans.
Furthermore, Mr. Marks testified that during the third meeting with Mr. Poovey, he questioned the draftsman concerning the similarity between the cut sheet and the final drawings that Poovey had prepared, that is, that the two "appeared to be close." Mr. Marks testified that Mr. Poovey responded that as long as he "made changes to 20% of the [original] plan, there could be no issue" and that "this is what he [did] all of the time."
Although Mr. Poovey denied that anyone ever expressed a concern about whether THE COLUMBIA cut sheet was protected by a copyright or that he ever spoke in terms of percentages, he admitted that he told the Marks that while he could not "duplicate" the cut sheet, he could make drawings based on the cut sheet, so long as the drawing also contained "revisions," that is, some changes from the plan on the cut sheet.
The Marks paid Mr. Poovey $3,650.00 for the technical drawings he had prepared. Acting as their own general contractors, the Marks then used the drawings to build a home at 14721 Davis Trace Drive, Charlotte, North Carolina, 28277, which apparently was completed prior to this lawsuit being filed.
During construction, the Marks purchased bricks from Boral Bricks Inc., which also supplies bricks to Wieland. Boral's salesman, David Rabon, avers that he met with the Marks to help them prepare an estimate of the amount of bricks needed to complete the home. Mr. Rabon further avers that he is familiar with a number of Wieland plans, including THE COLUMBIA, that when he examined the plans for the Marks' home he immediately recognized the Wieland COLUMBIA design, and that he later informed a Wieland employee, Dean Kellum, that Boral had been asked to provide bricks to a COLUMBIA home that was being built outside of a Wieland neighborhood.
The construction of any Wieland home outside of a Wieland neighborhood was unusual. Robert Clinton, Wieland's Architectural Quality Manager, testified that Wieland normally sells its homes within its planned neighborhoods and had sold only two Columbia plans for construction outside of Wieland neighborhoods.
On April 15, 2003, Wieland filed this action, alleging that the Marks and Mr. Poovey unlawfully copied and/or created a derivative work, as that term of art is used in copyright law, of THE COLUMBIA plan.
On May 7, 2003, Mr. Poovey filed his Answer.
On June 2, 2003, the Marks filed their Answer, along with a Crossclaim, seeking indemnification from Mr. Poovey in the event that they were found to be liable to Wieland.
On June 18, 2003, Mr. Poovey filed a reciprocal Crossclaim against the Marks.
On May 26, 2004, Wieland filed its "Motion for [Partial] Summary Judgment" as to Mr. Poovey on the issue of infringement.
On June 18, 2004, and along with its Reply, Wieland submitted a dry mounted exhibit, labeled "Exhibit 1," which depicts the respective front elevations and floor plans of THE COLUMBIA home in BridgeHampton and the Marks home.
On June 25, 2004, Wieland dismissed with prejudice its claims against the Marks. See "Notice of Dismissal" (document #48).
The same day, and along with its Sur-Reply and Reply, Mr. Poovey filed his "Motion to Strike Exhibit 1," that is, the dry mounted exhibit, contending that the photographs and floor plans have not been properly authenticated.
The undersigned notes that Defendant Poovey did not seek leave to file a Sur-Reply to the Plaintiff's Reply.
In its response to the Motion to Strike, Wieland states, and Mr. Poovey does not dispute, that each photograph and floor plan depicted on Exhibit 1 either was produced by the Plaintiff in a verified response to Mr. Poovey's written discovery requests or was identified and attached to a deposition conducted in this case. Moreover, as discussed below, Exhibit 1 simply places these enlarged copies of the previously-identified photographs and floor plans side-by-side for easy comparison. Accordingly, Mr. Poovey's "Motion to Strike Exhibit 1" (document #48) isdenied.
On July 29, 2004, Mr. Poovey and the Marks each dismissed their Crossclaim against the other. See "Order of Dismissal" (document #51).
The Plaintiff and Mr. Poovey's cross motions for summary judgment have been fully briefed and are, therefore, ripe for determination.
II. DISCUSSION
A. Summary Judgment StandardPursuant to Federal Rule of Civil Procedure 56(c), summary judgment should be granted when the pleadings, responses to discovery, and the record reveal that "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law."Accord Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979). Once the movant has met its burden, the non-moving party must come forward with specific facts demonstrating a genuine issue for trial.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A genuine issue for trial exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the party opposing summary judgment may not rest upon mere allegations or denials and, in any event, a "mere scintilla of evidence" is insufficient to overcome summary judgment. Id. at 249-50. Accord Cass County Music Company v. Khalifa, 914 F. Supp. 30, 32 (N.D.N.Y. 1996) (granting summary judgement in favor of plaintiff copyright owner on issue of infringement), citing Associated Music Publishers, Inc. v. Debs Memorial Radio Fund, 141 F.2d 852 (2nd Cir. 1944).
When considering summary judgment motions, courts must view the facts and the inferences therefrom in the light most favorable to the party opposing the motion. Id. at 255; Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990); Cole v. Cole, 633 F.2d 1083 (4th Cir. 1980). Indeed, summary judgment is only proper "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there [being] no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations omitted).
It is well settled that a party's lack of recollection on a particular issue does not create a genuine issue of material fact sufficient to survive summary judgment. Federal Kemper Insurance Co. v. Wheeler et. al., 786 F.Supp 565, 570 (S.D. Va 1992), citing Anderson, 477 U.S. at 247-48.
B. "Plaintiffs' Motion for [Partial] Summary Judgment" (document #40)
The Copyright Act conveys a number of exclusive rights to the owner of a copyright, among them, the right "to reproduce the copyrighted work" 17 U.S.C. § 106(1). Moreover, "[a]nyone who violates any of the exclusive rights of the copyright owner as provided by section 106 . . . is an infringer of the copyright." 17 U.S.C. § 501(a).
To establish a case for copyright infringement, "a plaintiff must show that it owns a valid copyright, and it must establish that the defendant engaged in unauthorized copying of the work protected by the copyright."Nelson-Salabes, Inc. v. Morningside Development, LLC, 284 F.3d 505, 513 (4th Cir. 2002), citing Towler v. Sayles, 76 F.3d 579, 581 (4th Cir. 1996).
Concerning the first element of copyright infringement, it is well established that certificates of copyright registration create a presumption as to the validity of a plaintiff's copyrights. Accord Lasercomb America, Inc. v. Holiday Steel Rule Die Corp., 656 F. Supp. 612, 614 (M.D.N.C. 1987) ("certification of copyright `is prima facie proof of the validity of the plaintiff's copyright'"),quoting Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1250-51 (3rd Cir. 1986). See also Donald Frederick Evans Assoc., Inc. v. Continental Homes, Inc., 785 F.2d 897, 903 (11th Cir. 1986) ("[t]he certificates of registration for the works constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate, 17 U.S.C. § 410(c), including the requirements of originality and susceptibility under 17 U.S.C. § 102(a)"); and Infodek, Inc. v. Meredith-Webb Printing Company, 830 F. Supp. 614, 621 (N.D. Ga 1993).
Copyright protection extends not only to the original work copyrighted, but to any derivative work created by the copyright holder.Accord Donald Frederick Evans v. Continental Homes, Inc., 785 F.2d 897, 904 (11th Cir. 1986); and 1 NIMMER ON COPYRIGHT § 3.05 ("if the material copied was derived from a copyrighted underlying work it will constitute an infringement of such work regardless of whether the defendant copied directly from the underlying work or indirectly from the derivative work"). The Copyright Act defines "derivative work" as:
[A] work based upon one or more preexisting works, such as a translation, musical arrangement, dramitazation, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represents an original work of authorship, is a "derivative work."17 U.S.C. § 101 (emphasis added). Minor modifications to a home plan based on physical restrictions or specific client requests do not rise to the level of original works of authorship for which separate registration is required. Accord Richmond Homes Management, Inc. v. Raintree, Inc., 862 F. Supp. 1517, 1526 (W.D. Va. 1994).
Moreover, copyright protection extends to simplified floor plans, that is, promotional cut sheets, of copyrighted architectural plans. Accord Ronald Frederick Evans v. Continental Homes, Inc., 785 F.2d 897, 904-05 (11th Cir. 1986) (court held that depictions of copyrighted floor plans in unregistered brochures are protected by underlying registration of plans and imposed liability based on direct evidence of infringement where defendant admitted copying brochure); Imperial Homes Corp. v. Lamont, 458 F.2d 895, 898 (5th Cir. 1972) ("[t]he district court's legal conclusion that the publication of the floor plan design from its copyrighted drawings in a promotional brochure waived and abandoned [plaintiff's] statutory copyright rights, is both novel and erroneous"); and Arthur Rutenburg Corporation v. Parrino, 664 F. Supp. 479, 481 (M.D. Florida 1987) ("[t]he Defendants' argument [that copyright protection did not extend to simplified floor plan depicted on promotional brochure which was not registered independently of the actual plans] is without merit").
Concerning the second element of copyright infringement, a plaintiff may prove copying through direct evidence. Accord M. Kramer Manufacturing Co. Inc., v. Andrews et. al., 783 F.2d 421, 445 (4th Cir. 1986) ("If there was clear proof of actual copying by the defendants, that is the end of the case.") In Kramer, the direct evidence of copying was that the defendant "used a printed circuit board from [the plaintiff's] game to develop his own version of video poker." Id.
In the face of direct evidence of copying, a defendant may not avoid liability by pointing out the dissimilarities between the protected work and the infringing copy. Accord Kramer, 783 F.2d at 445; and Ronald Mayotte Assocs. v. MGC Bldg. Co., 36 U.S.P.Q.2d 1793 (E.D. Mich. 1995) ("no plagiarist can excuse the wrong by showing how much of the work in question was not copied").
Although recognizing that unpublished decisions have no precedential value, the undersigned notes that recently, and in granting summary judgment in favor of the plaintiff, the District Court for the Western District of Virginia cited Ronald Mayotte favorably on this point. See Bonner v. Dawson, 2003 WL 22432941, 5 (W.D.Va. 2003).
Where there is no direct evidence of copying, a plaintiff may establish a presumption of copying by demonstrating that the defendant had access to the copyrighted work and that the defendant's work is substantially similar thereto. Accord Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350, 353-54 (4th Cir. 2001) ("[w]here direct evidence of copying is lacking, plaintiff may prove copying by circumstantial evidence in the form of proof that the alleged infringer had access to the work and that the supposed copy is substantially similar to the author's original work"); and Richmond Homes, 862 F. Supp. at 1526.
In context of architectural plans, substantial similarity may be established on the basis of similarity between "either the floor plans or the exterior, or both." Richmond Homes, 862 F.Supp. at 1527.
Applying these legal principles to the facts taken in the light most favorable to Mr. Poovey, clearly, he has failed to raise an issue of material fact concerning whether he copied THE COLUMBIA cut sheet and, accordingly, Wieland is entitled to summary judgment as to Mr. Poovey's liability on its infringement claim.
At the outset, the undersigned notes that Wieland owns valid, registered copyrights as to both THE COLUMBIA's technical drawings and the architectural work itself, and that, as discussed above, Wieland's exclusive right to reproduce and otherwise use its copyrighted intellectual property extends to the cut sheets of the plan. Accord Ronald Frederick Evans, 785 F.2d at 904-05; Imperial Homes Corp., 458 F.2d at 898; and Arthur Rutenburg, 664 F. Supp. at 481.
Concerning the second element of Wieland's infringement claim, Mr. Poovey has not testified or even alleged in his briefs that the drawings he prepared for the Marks were, in fact, original works that he authored. Rather, Mr. Poovey testified only that he could not recall whether the cut sheet that he used to prepare the Marks' drawings was THE COLUMBIA and, in his briefs, asserts that the Marks' drawings are sufficiently dissimilar from THE COLUMBIA plan to avoid liability.
However, Mr. Marks' testimony provides direct evidence that Mr. Poovey copied THE COLUMBIA cut sheet. In the face of this admission, which was damaging not only to Mr. Poovey but also to the Marks, Mr. Poovey's testimony that he cannot recall whether the sheet was THE COLUMBIA is insufficient to create an issue of material fact. Accord Anderson, 477 U.S. at 247-48;and Federal Kemper, 786 F.Supp at 570.
Even if Mr. Poovey could establish a dissimilarity between THE COLUMBIA and the Marks' drawings, which as discussed below, he cannot, the existence of direct evidence of his copying Wieland's copyright-protected plan entitles Wieland to summary judgment on the issue of liability.Accord Kramer, 783 F.2d at 445 (where there was direct evidence of copying, district court erred in finding "no infringement" based on dissimilarities between the copyrighted and infringing works); and Ronald Mayotte, 36 U.S.P.Q.2d at 1793.
Moreover, and assuming arguendo that Mr. Poovey could create an issue of material fact as to the existence of direct evidence, Wieland has provided sufficient indirect evidence of copying, taken in the light most favorable to Mr. Poovey, to prevail on its infringement claim.
For the purposes of these motions, Mr. Poovey concedes that both he and the Marks had access to THE COLUMBIA cut sheet and, therefore, Wieland has satisfied the first element for indirect proof. Accord Bouchat, 241 F.3d at 353-54 ("[w]here direct evidence of copying is lacking, plaintiff may prove copying by circumstantial evidence in the form of proof that the alleged infringer had access to the work and that the supposed copy is substantially similar to the author's original work");and Richmond Homes, 862 F. Supp. at 1526.
Concerning the second element of indirect proof of copying, it is sufficient if either the floor plan or the exterior of the Marks' home/drawings are substantially similar to THE COLUMBIA plan. Accord Richmond Homes, 862 F. Supp. at 1527. However, in this case, the undesigned finds that both the floor plan and the exterior of the Marks home are substantially similar, if not nearly identical, to Wieland's copyrighted COLUMBIA plan. Wieland's Reply Exhibit 1, which was the subject of Mr. Poovey's Motion to Strike and which places enlarged photographs and floor plans of THE COLUMBIA home in BridgeHampton and the Marks' home side-by-side for comparison, reveals little, if any, significant differences between the homes.
Mr. Poovey argues that the Mark's home contains "a room that is entirely nonexistent in THE COLUMBIA plan," that is, the second-floor "rec room." Defendants' "Response . . ." at 19 (document #43). However, as Exhibit 1 clearly shows, on its first floor, THE COLUMBIA has a "great room" with a high ceiling that is open to the second floor, and in the Marks home, Mr. Poovey merely closed off the second floor above the great room, creating a recreation room with the same dimensions as the open space above THE COLUMBIA's great room. In other words, and as Mr. Rabon, the brick salesman, concluded when he saw the Marks' drawings, it clear that both homes were designed and built on THE COLUMBIA plan.
In short, where Wieland has offered both direct and indirect evidence that Mr. Poovey infringed their copyrights, and Mr. Poovey otherwise has failed to raise an issue of material fact as to whether the Marks' drawings were the result of his original authorship, Wieland's Motion for Partial Summary Judgment shall be granted as to Mr. Poovey's liability on its infringement claim.
C. Defendants' "Counter-Motion for Summary Judgment" (document #43)
For the same reasons, discussed above, that Wieland is entitled to summary judgment on the issue of infringement, the Defendants' "Counter-Motion for Summary Judgment" will be denied.
III. ORDER
NOW, THEREFORE, IT IS ORDERED:1. The Defendants' "Counter-Motion for Summary Judgment" (document #43) and "Motion to Strike Exhibit 1 . . ." (document #48) are DENIED.
2. "Plaintiffs' Motion for [Partial] Summary Judgment" (document #40) is GRANTED as to the Defendants' liability on the Plaintiffs' copyright infringement claim.
3. As this case is now ripe for trial, the Clerk is directed to place it on the calendar for the Court's November 15, 2004 Civil Jury Term for a trial on the issue of damages on the Plaintiffs' copyright infringement claim. The parties are encouraged to continue in good faith to discuss the possibility of a mutually agreeable settlement, and to consider whether returning to the previously-ordered mediation might be advisable. Provided, however, counsel are advised that the Court intends to try this case during its November Term and therefore any efforts to settle their differences in the interim should be commenced forthwith.
4. The Clerk is directed to send copies of this Memorandum and Order to counsel for the parties.
SO ORDERED.