No Reasonable Possibility of Access to Copyrighted Home Plans, No Infringement

Building Graphics, Inc. is an architecture firm located in Charlotte, North Carolina.  The firm registered copyrights on some of its home plans between 1993 and 1998.  Lennar Corp. builds homes in eighteen states and planned to enter the Charlotte market in 2001.  Lennar hired Drafting & Design, Inc., an architecture firm, to design homes for Lennar to build in the Charlotte area. 

Building Graphics sued Lennar and Drafting & Design for infringing the copyrights on three of its home plans from the 1990s.  Following discovery, Lennar and Drafting & Design moved for summary judgment.  The district court granted the defendants’ motion, ruling that Building Graphics did not show that it was reasonably possible that Lennar had access to Building Graphics’ copyrighted home plans and that there was no substantial similarity between the two sets of plans.  The Fourth Circuit affirmed the district court’s decision based on Building Graphics’ failure to show a reasonable possibility of Lennar’s access to the copyrighted plans.

Elements of copyright infringement.  The plaintiff in a copyright infringement lawsuit must prove ownership of a valid copyright and copying by the defendant of the original elements of the copyrighted work.  The validity of Building Graphics’ copyrights was not in dispute.  The question was whether Lennar copied Building Graphics’ home plans.

Proving copying.  The plaintiff can prove copying either through direct evidence or circumstantial evidence.  Direct evidence is something that links the actor to the act, without relying on any assumption or inference.  Eye witnesses provide direct evidence. 

When direct evidence is lacking, a plaintiff may create a presumption of copying by indirect evidence, establishing that the defendant had access to the copyrighted work and that the defendant’s work is ‘substantially similar’ to the protected material.

(Opinion pdf page 9).

Circumstantial evidence of copying.  Relying on circumstantial evidence requires the plaintiff to prove access and similarity.  “Access” requires showing that the infringer had a reasonable opportunity to view or copy the work, i.e., that the infringer had a reasonable possibility of accessing the copyrighted work.  The mere possibility of an opportunity to view or copy the work is not sufficient.

The Fourth Circuit ruled that Building Graphics did not show either a chain of events demonstrating a reasonable possibility of access to the plans or wide dissemination sufficient to show a reasonable possibility of access.  The availability of the house plans online was not enough to establish a reasonable possibility of access.  Neither was the availability to the general public of cut sheets or sales handouts.  Lennar looked online for homes that its competitors were currently building, but did not look for plans for homes that were built in previous years.  There was no evidence that Lennar could easily find or come across the copyrighted plans on Building Graphics’ website.

Building Graphics accused Lennar of infringing on its copyrighted plans for three homes, Ballantrae, Springfield and Chadwyck.  Only one Ballantrae home, one Springfield home and no Chadwyck homes were built.  The small number of houses built from the copyrighted plans decreased the possibility of access.

Lennar was unable to explain how the allegedly infringing plans were created.  The Fourth Circuit ruled that Lennar’s inability to explain did not relieve Building Graphics of the burden of proof in showing a reasonable possibility of access.

Whether viewed individually or in the aggregate, the above facts and circumstances amount to inferences built upon inferences; they do not give rise to more than a mere possibility of access. We hold, therefore, that Building Graphics has not marshaled sufficient evidence to support a finding that there exists a reasonable possibility that Lennar had access to its copyrighted plans.

(Opinion pdf page 12).

The Fourth Circuit ruled that there was no reasonable possibility of access and did not reach the substantial similarity step of the analysis.  The district court determined that the copyright in an architectural work is “thin,” leading to a “supersubstantial” similarity requirement for copyright infringement involving architectural works.  In a footnote, the Fourth Circuit indicated that had it addressed the substantial similarity issue, it would have followed its two-part test in Universal Furniture International, Inc. v. Collezione Europa USA, Inc.  That test requires the plaintiff to show both extrinsic and intrinsic similarities between the works.  That two-part test applies to architectural works, as well as other types of works.

This case is Building Graphics, Inc. v. Lennar Corp., No. 11-2200, Fourth Circuit Court of Appeals.  The appendix to the opinion shows some of the disputed floor plans and elevations.

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