Scholz Design, Inc. v. Sard Custom Homes, LLC

Decision Date15 August 2012
Docket NumberDocket No. 11–3298.
Citation691 F.3d 182,2012 Copr.L.Dec. P 30301,103 U.S.P.Q.2d 1729
PartiesSCHOLZ DESIGN, INC., Plaintiff–Appellant, v. SARD CUSTOM HOMES, LLC, Prudential Connecticut Realty, & Coldwell Banker Residential Real Estate, LLC, Defendants–Appellees.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Louis K. Bonham, Osha Liang, LLP, Austin, TX (Holly M. Polglase, Hermes, Netburn, O'Connor & Spearing, P.C., Boston, MA, on the brief) for PlaintiffAppellant.

John J. Robacynski, Alan J. Rome, Rome, Clifford, Katz & Koerner, LLP, Hartford, CT, for DefendantAppellee Sard Custom Homes, LLC.

Thomas J. Finn, Paula Cruz Cedillo, McCarter & English LLP, Hartford, CT, for DefendantAppellee Coldwell Banker Residential Real Estate, LLC.

Before: LEVAL, SACK, and HALL, Circuit Judges.

SACK, Circuit Judge:

BACKGROUND

The plaintiff-appellant, Scholz Design, Inc. (Scholz), alleges that three front-elevation 1 architectural drawings of homes it designed in the late 1980s were copied and posted on various websites by the defendants in violation of Scholz's copyrights. The plaintiff also makes related claims for breach of contract and violations of the Digital Millennium Copyright Act, 17 U.S.C. § 1201, et seq.

Scholz created technical drawings, or blueprints, for three homes—which it called the “Springvalley A,” “Wethersfield B,” and “Breckinridge A”—and submitted them to the Copyright Office in 1988 and 1989 together with the front elevation drawings that are the subject of this suit, each showing the appearance of the front of the houses surrounded by lawn, bushes, and trees. See Scholz Design, Inc. v. Sard Custom Homes, LLC, No. 11–3298, Joint Appendix (“J.A.”) at 73, 76, 87 (2d Cir. Oct. 11, 2011).2 Scholz was granted registration of copyrights based on all these submissions.

In February 1992, Scholz and Sard Custom Homes (Sard) entered into an agreement (the “Builder Agreement I”) permitting Sard to construct homes using Scholz's home plans, including these three designs. See Builder Agreement I at 1–2, J.A. 97–98. The three-year contract required Sard to pay Scholz $1 per square foot of each home constructed using its plans, up to a maximum of $50,000 a year. Id. at §§ 5, 9, 10. Scholz and Sard renewed the contract for another three-year term in 1995 (the “Builder Agreement II”). Builder Agreement II at 1–2, J.A. 100–101. Both agreements required that Sard not “copy or duplicate any of the [Scholz] materials nor ... [use them] in any manner to advertise or build a [Scholz Design] or derivative except under the terms and conditions of the agreement.” Builder Agreement I at 1; Builder Agreement II at 1.

Scholz alleges that, after the termination of Scholz's agreement with Sard and in a manner not permitted by the agreement, Sard and co-defendant Prudential Connecticut Realty (“Prudential”) posted copies of Scholz's copyrighted drawings of the Springvalley and Wethersfield homes on two different websites to advertise Sard's “ability” to build the homes. Am. Compl. ¶ 15. Scholz also alleges that Sard and co-defendant Coldwell Banker Residential Real Estate, Inc. (Coldwell Banker) copied Scholz's copyrighted image of the Breckinridge design on Coldwell Banker's website for the same unpermitted purpose. Scholz further alleges that Sard, Prudential, and Coldwell Banker “may have used, reproduced, displayed, distributed, marketed or advertised” those designs through other means in addition to the websites identified. Am. Compl. ¶¶ 18, 33.

In October 2010, Scholz brought suit against the three defendants in the United States District Court for the District of Connecticut. The February 1, 2011, amended complaint alleges two counts of copyright infringement, two violations of the Lanham Act, 15 U.S.C. § 1051 et seq., breach of contract, and violations of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1201 et seq. Am. Compl. ¶¶ 9–72.

The defendants moved to dismiss the complaint, arguing inter alia that the pictures “could not have been copyrighted as architectural works because, the copyrights having been granted in 1988 and 1989, they predate the [Architectural Works Copyright Protection Act (“AWCPA”), Pub.L. No. 101–650, tit. VII (1990) ] and that the conceptual nature of these depictions means that they are not protected by Scholz's copyright because they contain insufficient detail from which a building could be constructed.” Scholz Design, Inc. v. Sard Custom Homes, LLC, No. 3:10–cv–1681, 2011 WL 2899093, at *2, 2011 U.S. Dist. LEXIS 76663, at *6 (D.Conn. July 15, 2011). The district court (Janet Bond Arterton, Judge ) agreed. The court, in its “Ruling on Motions to Dismiss,” reasoned that “copyright protection extends to the component images of architectural designs to the extent that those images allow a copier to construct the protected design,” and therefore “the copied images do not fulfill the intrinsic function of an architectural plan and thus the act of copying them does not violate any right protected by a copyright for architectural technical drawings.” Id. at *3, 2011 U.S. Dist. LEXIS 76663, at *9.

Because it concluded that the plaintiff's amended complaint did not state a claim for copyright infringement, the district court also granted defendants' motion to dismiss claims alleging violations of the DMCA and breach of contract, which, in the district court's view, required that the plaintiff have a valid copyright infringement claim.3Id. at *4, 2011 U.S. Dist. LEXIS 76663, at *14.

The plaintiff appeals.

DISCUSSION
I. Standard of Review

We review a district court's grant of a motion to dismiss de novo, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor. Flagler v. Trainor, 663 F.3d 543, 546 n. 2 (2d Cir.2011); Fed.R.Civ.P. 12(b)(6).

II. Copyright Infringement

In order to demonstrate copyright infringement, a plaintiff must show ownership of a valid copyright and copying of the protectable elements of the copyrighted work.4See Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 109 (2d Cir.2002). A certificate of copyright registration is prima facie evidence of ownership of a valid copyright, but the alleged infringer may rebut that presumption. MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 192 (2d Cir.2004) (citing 17 U.S.C. § 410(c)). To qualify for copyright protection, a work must be original—that is, it must be independently created by the author and possess “at least some minimal degree of creativity.” Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The work need not be “particularly novel or unusual.” Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133, 135 (2d Cir.2004). [T]he requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be.” Feist, 499 U.S. at 345, 111 S.Ct. 1282 (citation and internal quotation marks omitted).

The defendants' principal argument, with which the district court agreed, was that the allegedly infringed drawings were not entitled to copyright protection because they lacked sufficient detail to allow for construction of the homes depicted. We disagree. Copyright protection of a pictorial work, whether depicting a house, or a flower, or a donkey, or an abstract design, does not depend on any degree of detail. The rights Scholz claims in this suit derive from the general copyright law and not from the AWCPA, which has no relevance to the suit.

A. Copyright for Pictorial Works

Scholz's copyright allegations are straightforward: It created three separate original drawings (depicting homes), registered them with the Copyright Office, and the defendants without authorization made exact copies of those drawings on their websites. Nothing more is required for a copyright claim.

The district court apparently was of the view that, because the drawings were architectural, something more was required for their copyright protection. It is black-letter law, however, that courts accept as protected “any work which by the most generous standard may arguably be said to evince creativity.” 1–2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.08 (2012). Justice Holmes explained more than a century ago that [i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves the final judges of the worth of pictorial illustrations.” Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251, 23 S.Ct. 298, 47 L.Ed. 460 (1903). As noted above, the only requirement for copyrightability of a work is that it “possesses at least some minimal degree of creativity ... no matter how crude, humbleor obvious it might be.” Feist, 499 U.S. at 345, 111 S.Ct. 1282.

While we have not had occasion to consider a case presenting precisely the same issue as does this one,5 we have said in affirming summary judgment for the defendants based on alleged copying of certain conceptual elements of an architectural sketch that, although the copying of “ideas” at issue there did not constitute infringement, we do not mean to suggest that, in the domain of copyrighted architectural depictions, only final construction drawings can contain protected expression.” Attia v. Soc. of N.Y. Hosp., 201 F.3d 50, 57 (2d Cir.1999).

We see no reason why Scholz's drawings depicting the appearance of houses it had designed should be treated differently from any other pictorial work for copyright purposes. Andrew Wyeth and Edward Hopper were famous for their paintings of houses, and Claude Monet for paintings of the Houses of Parliament and of Rouen Cathedral. None of these depictions of buildings were sufficiently detailed to guide construction of the buildings depicted, but that would surely not justify denying them...

To continue reading

Request your trial
52 cases
  • Wolo Mfg. Corp. v. ABC Corp.
    • United States
    • U.S. District Court — Eastern District of New York
    • 7 Noviembre 2018
    ...from other works), and that it possesses at least some minimal degree of creativity." Id. ; see also Scholz Design, Inc. v. Sard Custom Homes, LLC , 691 F.3d 182, 186 (2d Cir. 2012) ("To qualify for copyright protection, a work must be original—that is, it must be independently created by t......
  • Associated Press v. Meltwater U.S. Holdings, Inc., 12 Civ. 1087 (DLC).
    • United States
    • U.S. District Court — Southern District of New York
    • 21 Marzo 2013
    ...copyright registration is prima facie evidence of both valid ownership of copyright and originality. See Scholz Design, Inc. v. Sard Custom Homes, LLC, 691 F.3d 182, 186 (2d Cir.2012); see also Boisson v. Banian, 273 F.3d 262, 268 (2d Cir.2001). The copying of the constituent elements of th......
  • Bruhn NewTech v. United States, 16-783C
    • United States
    • U.S. Claims Court
    • 23 Agosto 2019
    ...a registration made thereafter shall be within the discretion of the court.17 U.S.C. § 410(c); see also Scholz Design, Inc. v. Sard Custom Homes, LLC, 691 F.3d 182, 186 (2d Cir. 2012) ("A certificate of copyright registration is prima facie evidence of ownership of a valid copyright, but th......
  • Grayton v. Ercole
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 15 Agosto 2012
    ... ... See generally Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d Cir.1999). However, I ... ...
  • Request a trial to view additional results
1 firm's commentaries
  • Walking The 'Thin' Line Of Architectural Copyright Protection
    • United States
    • Mondaq United States
    • 26 Marzo 2013
    ...copyright protection is low. The U.S. Court of Appeals for the Second Circuit recently held in Scholz Design v. Sard Custom Homes LLC, 691 F.3d 182 (2nd Cir. 2012), that three architectural drawings were entitled to copyright protection despite the fact that they lacked sufficient detail to......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT