T-Peg, Inc. v. Vermont Timber Works, Inc.
| Citation | 459 F.3d 97 |
| Decision Date | 18 August 2006 |
| Docket Number | No. 05-2866.,05-2866. |
| Parties | T-PEG, INC.; Timberpeg East, Inc., Plaintiffs, Appellants, v. VERMONT TIMBER WORKS, INC.; Douglas S. Friant, Defendants, Appellees, Stanley J. Isbitski, Defendant. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Daniel E. Will, with whom Devine, Millimet & Branch, P.A. was on brief, for appellants.
W.E. Whittington, with whom Whittington Law Associates, PLLC was on brief, for appellees.
Before TORRUELLA, LYNCH, and HOWARD, Circuit Judges.
This case is the first occasion for us to address a copyright infringement suit under the Architectural Works Copyright Protection Act ("AWCPA"), Pub.L. No. 101-650, §§ 701-706, 104 Stat. 5089, 5133-34 (1990) (), which created a new category of copyrightable subject matter for "architectural works." 17 U.S.C. § 102(a)(8).
The plaintiffs, T-Peg, Inc. and Timberpeg East, Inc. (collectively, "Timberpeg"), sell both architectural designs and the associated packages of material for the construction of timberframed homes. Timberpeg created architectural plans for a home for Stanley Isbitski in Salisbury, New Hampshire. The central feature of those plans was the timberframed main house, although the plans did not show a completed final architectural design for the actual timberframe. The plaintiffs registered their second set of preliminary plans as an architectural work with the Copyright Office, and maintained ownership over the copyright in the work embodied in the plans.
Isbitski, however, never purchased a construction materials package and final plans from Timberpeg. He did file the registered plans with the Town of Salisbury in order to get a building permit. Isbitski hired defendant, Vermont Timber Works, Inc. ("VTW"), to erect a timberframe for his home. VTW erected its timberframe, but Isbitski never completed his home. A later owner bought the property and completed the home.
Timberpeg filed suit against both Isbitski and VTW, claiming, inter alia, that the timberframe designed through shop drawings and constructed by VTW for Isbitski infringed Timberpeg's copyright in the architectural work. This appeal concerns only the copyright infringement claim against VTW. Isbitski could not be found and was never served.
The district court granted summary judgment to VTW, finding that no reasonable jury could conclude that VTW copied Timberpeg's architectural work, or that VTW's frame was "substantially similar" to Timberpeg's registered plans. The district court also awarded attorneys' fees to VTW.
We reverse the judgment of the district court, finding that there is a genuine issue of material fact as to Timberpeg's copyright infringement claim under the AWCPA. As a result, we also vacate the award of attorneys' fees and remand.
We recount the facts, taking all reasonable inferences in favor of Timberpeg, the party that opposed the entry of summary judgment. See Senior v. NSTAR Elec. & Gas Corp., 449 F.3d 206, 208 (1st Cir.2006).
Stanley Isbitski owned a plot of land in Salisbury, New Hampshire, on which he wanted to build a home featuring a "timberframe." A timberframe is a house frame using wooden posts and beams which remain visible inside the building. The more common "stick built" home, by contrast, is framed using two-inch lumber rather than posts and beams. Isbitski dealt both with Timberpeg and with VTW, two companies that are, broadly speaking, in the timberframe business, but have different sorts of operations. Douglas Friant is one of the founders and co-owners of VTW, and is responsible for the drafting of timberframe shop drawings1 for VTW. Isbitski's dealings with Timberpeg and VTW, and his own work on his house (he was acting as his own general contractor for the construction of the home), ran somewhat in parallel. We describe his dealings with each company separately.
Timberpeg markets and sells designs and its own brand of "packages" for the construction of timberframe homes. A Timberpeg package consists of the materials used for the construction of a home's timberframe and exterior building envelope (including windows, exterior doors, insulation, siding, exterior trim, and cedar roof shakes). Timberpeg does not erect the packages it sells; instead, a customer must hire a builder or contractor to assemble and erect the package.
Timberpeg provides architectural design services for customers, and has a staff of architects and designers who can create all the necessary designs and architectural plans to build a home. Timberpeg's business model is not based on selling design services or architectural plans. Rather, Timberpeg makes its money on the sale of its packages of construction material based on its architectural plans. Timberpeg provides architectural design services as a way to facilitate the sale of its packages.
Sometime in 1999 or perhaps earlier, Isbitski approached Timberpeg to consider the purchase of a Timberpeg package. Isbitski, working with a Timberpeg employee, filled out a "design information sheet" about what he wanted the house to look like. The actual design information sheet is not in the record. On November 15, 1999, Isbitski and Timberpeg entered into a "Deposit Agreement for TIMBERPEG Preliminary Plans and Drawings." Under this deposit agreement, Isbitski paid a $2500 deposit to Timberpeg, in exchange for which Timberpeg would and did create preliminary architectural plans and construction plans for the house. The preliminary architectural plans would consist of a basement plan, floor plans, four elevations (external, vertical views of the house from different angles showing exterior features such as window and door locations, roof pitches, and ceiling heights), and a building cross section. After Isbitski's approval of the preliminary plans, Isbitski would receive construction plans, including foundation plans and details of Timberpeg's standard construction techniques. According to the contract, the construction plans could "be used for planning the construction process, ordering materials, obtaining contractor bids, and securing a building permit." Final plans, which included the complete frame drawings, would not be prepared as part of the deposit agreement, but would be prepared as part of the final contract for the purchase of a Timberpeg package. Timberpeg, in all, provided Isbitski with two versions of the preliminary plans and then construction plans. No final plans were ever provided.
Under the contract, Isbitski represented to Timberpeg that "any house plans, specifications, drawings or sketches of any kind (the `Drawings') provided to [Timberpeg were] the result of an original design (the `Design')," represented that he (Isbitski) was the "sole owner of the Design and has exclusive rights, including copyright, in and to the Design as represented in the Drawings," and agreed to indemnify and hold harmless Timberpeg from use of the drawings and design. Timberpeg would own the copyright in the "Preliminary Plans, Construction Plans, specifications, drawings, and other material (the `Plans')." Isbitski could use the plans "solely in connection with the evaluation and construction of one (1) Package purchased from [Timberpeg]," and
[a]ny other use of the Plans, including, but not limited to, the following, is an unauthorized appropriation of copyright by Customer and a breach of this Agreement: a) the copying of all or any part of the Plans; b) the utilization or partial utilization of the Plans for the construction of a similar building or structure; or c) any transfer or delivery of the Plans to another person without written authorization from [Timberpeg].
Isbitski was under no obligation to purchase a Timberpeg package after seeing the preliminary plans or even the construction plans. If he chose to purchase a package, the $2500 deposit would be credited against the price of the package. If he chose not to purchase a package, Isbitski would have to return the plans, and Timberpeg would return the deposit minus a fee for design time, billed at $49 per hour, and other incidental costs.
Timberpeg created a first set of preliminary plans on December 29, 1999 and gave them to Isbitski. These plans showed the design of a house with a timberframed main portion and a wing that would be stick built. The record does not contain this first set of plans, and these plans were never registered with the Copyright Office.
In early 2001, Isbitski met again with Timberpeg, saying that he was unsatisfied with the first set of preliminary plans. Timberpeg completed a new design for Isbitski on April 20, 2001 "based on [its] interpretation of Mr. Isbitski's rough ideas and preferences." The plans were given to Isbitski. Timberpeg registered these plans with the Copyright Office on May 18, 2001. The registration certificate shows that these second preliminary plans were registered as an "architectural work." It is only this second, registered set of preliminary plans that is at issue here.
Based on these plans, Isbitski applied for a building permit from the Town of Salisbury. As part of the permitting process, in April 2001, Isbitski submitted the second preliminary plans to the Town of Salisbury, where they were placed in a public file.
The second set of preliminary plans contained elevations and floor plans. The plans showed a two-floor main house connected via a covered breezeway to a three-car garage with a lofted space above it. The first floor of the main house was nine feet tall; the second floor was eight feet tall. The main house consisted, broadly speaking, of two major portions. One portion — the portion which would be timberframed — was backwards-L-shaped. A great room (with two-floor ceilings on the northern end of the house), kitchen, breakfast room, and...
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