Donald Frederick Evans and Associates, Inc. v. Continental Homes, Inc.

Decision Date31 March 1986
Docket NumberNo. 84-3723,84-3723
Citation785 F.2d 897
Parties, 229 U.S.P.Q. 321, 1986 Copr.L.Dec. P 25,918 DONALD FREDERICK EVANS AND ASSOCIATES, INC., d/b/a The Evans Group, etc., Plaintiff-Appellant, Cross-Appellee, v. CONTINENTAL HOMES, INC., a Florida corporation, Complete Interiors, Inc., a Florida corporation, and David Mann Meadows, Defendants-Appellees, Cross- Appellants. DONALD FREDERICK EVANS AND ASSOCIATES, INC., Plaintiff-Appellant, Cross- Appellee, v. David Mann MEADOWS, an individual, Complete Interiors, Inc., d/b/a Continental Homes, Defendants-Appellees, Cross-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Herbert L. Allen, Orlando, Fla., for plaintiff-appellant, cross-appellee.

Ladd H. Fassett, Orlando, Fla., for defendants-appellees, cross-appellants.

Appeals from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and SIMPSON, Senior Judge.

KRAVITCH, Circuit Judge:

The Evans Group 1 (Evans), a Florida architecture and planning firm, appeals from judgments in two civil actions, 81-706-CIV-ORL-18 and 83-276-CIV-ORL-18, rendered in favor of the defendants below, Complete Interiors, Inc. 2 (CI), a Florida land development and contracting company, and its general manager David M. Meadows (Meadows). In both actions, Evans appeals the district court's judgment for CI and Meadows as to its claims of copyright infringement under the Copyright Act of 1976, 3 17 U.S.C. Sec. 501. Evans also seeks reinstatement of its various other claims in case 81-706: it challenges the district court's finding that 17 U.S.C. Sec. 506(c) does not authorize a private cause of action and dismissal of its claim thereunder; it seeks relief from a directed verdict entered on its common law claim and its Florida statutory claim of unfair competition; and it appeals from judgment for CI and Meadows as to its claim of libel of title. CI and Meadows assert on cross-appeal that the district court's denial of their claims for attorney's fees should be reversed. They also advance several alternative grounds on which the trial court could have relied to find that Evans' claims did not merit relief.

The district court properly exercised jurisdiction over the federal copyright statute claims in both cases pursuant to 28 U.S.C. Sec. 1338(a) and determined that exercising pendent jurisdiction over the state law claims in case 81-706 was proper under 28 U.S.C. Sec. 1338(b) and United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218 (1966). The cases were consolidated for trial. After the directed verdict on the unfair competition claims, the jury was dismissed by agreement of the parties. We have jurisdiction over both the federal statutory and the pendent state claims under 28 U.S.C. Sec. 1291 and Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 1001 (5th Cir.1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975). 4

I. BACKGROUND

The district court's findings of fact indicate the following. Three clients hired Evans to create architectural design drawings (working drawings) of new single-family home designs to be built in their residential developments. In February, 1979, Evans completed working drawings of the Baywood design for Betsy Godfrey's Waterbridge development. In December, 1979, pursuant to a letter agreement, Evans completed working drawings of the Rivendell design for H. Miller & Sons' Tuskawilla Point development. In January, 1982, pursuant to a written contract, Evans completed working drawings of five designs including the Hollybrooke, Sunridge, 5 and Woodlyn 6 designs, for Olin-American's Moss Pointe development. Evans affixed a notice of copyright to the 1982 working drawings of the plans created for Olin-American, but had not affixed any notice to those created for Godfrey or H. Miller & Sons. Drawings of the plans were published on various occasions.

Drawings of the floor plans and of the facades of these home designs, except for the Hollybrooke, appeared in one or more issues of the Parade of Homes supplement to Orlando, Florida's daily newspaper, the Sentinel Star, now named the Sentinel. The Parade of Homes, captioned "Advertising Supplement" on its front page, is an annual publication in which local builders and developers display new home designs. No notice of copyright was affixed to any of the drawings of Evans' home designs included in the Parade of Homes supplements, nor did the title pages of the supplements or any of the introductory portions contain a mention of copyright. The front page of the Sentinel newspaper, however, contained a copyright notice underneath its masthead. The chart below summarizes the district court's findings concerning the appearances of the plans in the Parade of Homes supplements:

                                              Approximate Number of Copies Distributed
                                             ------------------------------------------
                   Issue         Model          with newspaper      without newspaper
                -----------  --------------  --------------------  --------------------
                1979 Parade  Starshine             220,994                 8,000
                             (aka Sunridge)
                1980 Parade  Baywood               224,133                 8,000
                             Rivendell             224,133                 8,000
                             Starshine             224,133                 8,000
                             (aka Sunridge)
                1982 Parade  Woodlyn               236,611                10,000
                1984 Parade  Mulberry              200,000
                             (aka Woodlyn)
                

In addition to the appearances in the Parade of Homes, the district court found that various other publications contained drawings of the five plans as follows:

The Baywood was published in a promotional flyer bearing no notice of copyright, of which 100 copies were distributed. 7

The Rivendell was published in a sales brochure bearing no notice of copyright, of which 5,000 copies were distributed.

The Sunridge (a/k/a Starshine) was published in a brochure promoting the Moss Pointe development bearing no notice of copyright, of which approximately 1,000 copies were distributed; and in a Moss Pointe advertising folder obtained in April, 1982, bearing no notice of copyright, of which approximately 1,500 copies were distributed.

The Woodlyn (a/k/a Mulberry) was published in the same Moss Pointe brochure and advertising folder of which approximately 1,000 and 1,500 copies were distributed respectively; and in a full-page advertisement which appeared, without an individual copyright notice, in the May 1, 1982, edition of the Sentinel of which approximately 198,000 copies were distributed; and as the Mulberry in a promotional brochure for the Country Lane development bearing no notice of copyright, of which approximately 1,500 copies were distributed.

The Hollybrooke was published in the same Moss Pointe brochure and advertising folder of which approximately 1,000 and 1,500 copies were distributed respectively; and in a lay-out comprised of a photograph and a drawing which appeared, without an individual copyright notice, in the December, 1982 issue of Professional Builder magazine of which approximately 100,000 copies were published.

Sometime after the distribution of the 1980 Parade of Homes, defendant Meadows, using the drawings therein, copied the Baywood and Rivendell plans, and renamed them the Morning Glory 1F and the Autumn IIIE, respectively. CI and Meadows constructed homes from the plans, began advertising, and established a sales office to promote them. They did not construct model homes; their employees, however, directed prospective customers to view the model homes built by Evans' clients, Godfrey and H. Miller & Sons, explaining that those models were very similar to defendants' homes, although defendants' would be considerably less expensive.

Evans learned of the advertising of the Morning Glory 1F in the fall of 1980 and contacted its attorney who then sent an investigator to ascertain what CI's customers were being told. Evans' attorney requested by letter in November, 1980 that CI stop directing its customers to the models built by Evans' clients, but indicated in the letter that no copyright issue was involved. CI's employees ceased referring customers to the models, but continued to advertise the homes.

After seeing the Woodlyn plans in the 1982 Parade of Homes, defendant Meadows visited the Moss Pointe models in June of 1982 and again in November of 1982. Using a brochure obtained during his second visit, Meadows prepared plans substantially similar to the Sunridge, Woodlyn, and Hollybrooke. The models were renamed the Riverwood, Highlander, and Morningstar respectively. CI began advertising its homes in December, 1982.

Evans obtained copyright registration number VA93-273 for the Baywood working drawings, and copyright registration number VA93-272 for the Rivendell working drawings, effective dates August 18, 1981. Evans obtained copyright registration number VA98-759, effective date May 5, 1982, for the working drawings of the Moss Pointe development homes which include the Sunridge, Woodlyn, and Hollybrooke. In the latter part of 1982, Evans requested its client, Olin-American to affix a copyright notice to the remaining Moss Pointe advertising folders; it was not until March 16, 1983, however, that Evans provided a rubber stamp for this purpose. Olin-American disapproved the stamp and returned it to Evans. On April 11, 1983, Evans obtained a new stamp, but by that time Olin-American had completed marketing the Moss Pointe homes.

Evans filed the complaint in case 81-706 in December, 1981, alleging, inter alia, infringement of its Baywood and Rivendell copyrights; in April, 1983, it commenced case 83-276 alleging infringement of its copyright covering the Sunridge, Woodlyn, and Hollybrooke. In both cases, Evans sought injunctive relief, an accounting for CI's and Meadows' profits or...

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