J. Kent Holland, J.D.
Where two architects competed for the design of a condominium building, the unsuccessful prospect sued the chosen architect for copyright infringement of its design, claiming the architect had copied the design and had created a design that was so substantially similar to its own as to be a copyright infringement. The suit was dismissed by summary judgment and this dismissal was affirmed on appeal, with the court finding that the experts for the defendant provided evidence that the designs were not substantially similar, and the expert for the plaintiff failed to present sufficient evidence of copying or substantial similarity. The court explained the areas of alleged substantial similarity and found that viewing the evidence most favorably to the plaintiff only shows that the two projects in question incorporate nine of the same concepts but does not establish that the two designs have a similar overall, or that the designs arrange or compose elements and spaces in a similar manner. Humphreys & Partners Architects v. Lessard Design, Inc., 790 F.3d 532 (4th Cir. 2015).
Humphreys & Partners Architects (“HPA”) claimed that the design, development, ownership, and construction of Two Park Crest, an apartment building in McLean, Virginia infringed HPA’s architectural copyright embodied in Grant Part, a condominium building in Minneapolis, Minnesota. HPA registered the Grant Park design as an architectural work with the U.S. copyright office. The building was built in 2004, years before the Two Park Crest building was constructed in 2012. After Two Park Crest was built, HPA filed this copyright infringement suit. After discovery was completed in the suit, the parties filed cross-motions for summary judgment.
Lessard argued it was not liable because it did not copy the design and the two designs are not substantially similar. Lessard supported its motion with three expert reports from different architects who concluded that the two designs were not substantially similar.
HRA’s expert did not state that he knew or could prove that the design had been “copied.” HRA’s theory for why it believed copying had taken place was that “the speed in which Lessard created the Two Park Crest design is direct evidence of copying, and that the similarities between the two designs in circumstantial evidence of copying. HPA’s expert identified nine characteristics shared by both design—for example, “both designs are for similar multi-family buildings that are approximately twenty stories tall, that have two elevator lobbies connected by a service corridor, and that provide direct access two units from the elevator lobbies.” HPA argued that the presence and arrangement of these nine features infringed its copyright.
Were the Expert Reports Adequate for Consideration. The first issue that the court dealt with was the admissibility of the expert reports and whether they should have been relied upon for the summary judgment motion. HPA asserted that the reports were inadmissible hearsay. In response to that Lessard provided declarations from the experts verifying the contents of the reports in stating that they would testify at trial to the substance thereof. The District trial court denied HPA’s motion to strike, concluding that the expert declarations cured any HPA objection.
The appellate court agreed and in addition stated that for summary judgment purposes the expert reports were sufficient for consideration and the ultimate admissibility of the reports was immaterial because Lessard submitted decorations made, ”under penalty of perjury” from the experts attesting that they “would testify to the matters set forth in there reports.” The court stated that “subsequent verification or reaffirmation of an unsworn expert’s report, either by affidavit or deposition, allows the court to consider the unsworn expert’s report on a motion for summary judgment.”
The Substantive Issues Concerning the Design.
The trial court granted summary judgment because it found that no reasonable jury could find that the two projects in question were “extrinsically (i.e., objectively) similar.” The trial court concluded:
“The two designs are not extrinsically similar for two independently sufficient reasons. First, neither the nine features that [Plaintiff’s expert] identified nor their arrangement in Grant Park is eligible for copyright protection. And second, those features are presented and arranged differently in the Two Park Crest design. With respect to the arrangement of the nine features in the two designs, the court *537 noted that Appellees’ experts had provided detailed explanations as to how the two designs differ with respect to their size, footprints, floorplans, and exterior appearances. HPA’s expert, in contrast, “offer[ed] no evidence as to what makes the two arrangements extrinsically similar.”
In reviewing this, the appellate court explained that where direct evidence of copying is lacking, the “plaintiff may prove copying by circumstantial evidence in the form of proof that the alleged infringer had access to the work and that the supposed copy is substantially similar to the author’s original work.” To show substantial similarity, the plaintiff must establish that the two works are both “extrinsically” and “intrinsically” similar. The “extrinsic inquiry” is that of an objection that looks at external criteria of substantial similarity between the works. In contrast, the “intrinsic inquiry” looks to the “total concept and feel of the works.”
Rather than attempt to paraphrase how the court evaluated the evidence, it may be better to just quote from the decision at length as follows:
To support its case, the plaintiff relied on two declarations of its CEO. The court found the only relevant statements on those declarations, however, were assertions that “[t]he Court can see that the two floor plans are very similar,” and that “the Court can see that [the two buildings] have a very similar appearance.” Those statements were deemed insufficient to create a genuine dispute of material fact because they are conclusory. The CEO identified no specific, objective similarity between the two designs to support his conclusion that the buildings’ floor plans and appearances are similar.
The plaintiff also submitted three declarations—two from individuals who worked with the plaintiff on the Grant Park project, and one from the plaintiff’s Director of Design—describing the creation, originality, and benefits of the Grant Park design. These declarations were deemed by the court insufficient to create a genuine dispute for trial because none contains an assertion about the similarity between the Grant Park and Two Park Crest designs.
Finally, the plaintiff relied on its expert’s declaration and deposition testimony in which the expert stated in his declaration that “[t]he two designs have an extrinsic similarity in that the ideas and expression of the ideas used in the projects have substantial similarities[,] … includ[ing] such things as building floor plan layout, exit circulation, building size, and composition of the major elements that make up the exterior expression of the designs.” He also listed nine features shared by both designs—for example, the stairwells in both designs are located adjacent to elevator lobbies—and stated that these characteristics are “examples of the arrangement and composition of spaces and elements that represent substantially similar features of Humphreys’ Grant Park design.” And the expert stated in his deposition that the “the overall expression of the idea of those [nine] elements is very similar in the two projects.”
The court found that the expert’s declaration and deposition testimony were insufficient to show that the designs are extrinsically similar. Like the other declarations for the plaintiff, the expert offered no specific similarity between the designs’ overall form or arrangement of individual elements. He identified nine shared features and stated that these characteristics show that the two designs arrange and compose both spaces and elements in a substantially similar manner. But the mere presence of these nine features in both buildings does not create an issue for trial because the plaintiff did not, and could not; claim “any protectable interest in any individual component” of the Grant Park design. The expert also failed to explain how specifically the two designs were similar in their floor plans, exists, sizes, or arrangement of individual elements. His conclusory assertions were found by the court to be, as a matter of law, insufficient to show that any aspect of the defendant’s project was substantially similar to a protected element of the plaintiff’s design.
In its final summation of its decision, the appellate court concluded that the plaintiff failed to carry its burden of identifying a specific similarity between the defendant’s project and protected elements of the plaintiff’s design. Even if the defendant’s design incorporated nine of the same concepts as the plaintiff’s design, the court found that this does not establish that the two designs have a similar overall form, or that the designs arrange or compose elements and spaces in a similar manner. The court, therefore, affirmed the summary judgment in favor of the defendant architect.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report, Vol. 18, No. 3 (March 2016).
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