Bldg. Graphics, Inc. v. Lennar Corp.

• Decision Date: 30 September 2011
• Docket Number: Case No. 3:08–CV–548.
• Citation: 866 F.Supp.2d 530
• Court: U.S. District Court — Western District of North Carolina
• Parties: BUILDING GRAPHICS, INC., Plaintiff, v. LENNAR CORP., Lennar Carolinas, LLC, and Drafting & Design, Inc., Defendants.

866 F.Supp.2d 530

BUILDING GRAPHICS, INC., Plaintiff,

v.LENNAR CORP., Lennar Carolinas, LLC, and Drafting & Design, Inc., Defendants.

Case No. 3:08–CV–548.

United States District Court,

W.D. North Carolina,

Charlotte Division.

Sept. 30, 2011.

Douglas M. Martin, Poyner & Spruill, J. Mark Wilson, Moore & Van Allen PLLC, Charlotte, NC, for Plaintiff.

Christopher M. Thomas, Parker Poe Adams & Bernstein LLP, Eric P. Stevens, Poyner & Spruill, Raleigh, NC, Douglas M. Martin, Poyner & Spruill, Charlotte, NC, Thomas C. Wright, Gardere Wynne Sewell LLP, Dallas, TX, for Defendants.

MEMORANDUM AND ORDER

RICHARD L. VOORHEES, District Judge.

THIS MATTER is before the Court on Defendant Drafting and Design, Inc.'s Motionfor Summary Judgment (Doc. 54); Defendants Lennar Corp. and Lennar Carolinas, LLC's Motion for Summary Judgment (Doc. 55); and Plaintiff Building Graphics, Inc.'s Motion for Partial Summary Judgment (Doc. 57), all filed on November 16, 2009. Plaintiff brings this action alleging that defendants misappropriated three of its home designs that are protected under the Architectural Works Copyright Protection Act (“AWCPA”), Pub.L. No. 101–650 §§ 701–706, 104 Stat. 5089, 5133–34 (1990). After reviewing the briefs, evidentiary submissions, and relevant law, and for the reasons set forth, the Court will grant Defendants' Motions. Because Plaintiff has not made out its prima facie case of copyright infringement, there is no need to consider the affirmative defenses proffered by Defendants.

I. FACTUAL BACKGROUND

In recounting the facts relating to counts presented in the Second Amended Complaint (Doc. 51), the Court views all reasonable inferences in the light more favorable to Building Graphics, the party opposing the entry of summary judgment. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

Plaintiff, Building Graphics, is an architectural firm that specializes in designing residential housing plans. Building Graphics has registered for copyright protection its three housing plans pertinent to this case, developed from 1993 to 1998. The “Chadwyck” design was registered as a technical drawing on October 10, 2008, and as an architectural work on November 7, 2008, and the “Ballantrae” and “Springfield” designs, both derivative works of the Chadwyck, were registered on June 22, 2009, and July 22, 2009, respectively. (Doc. 51 at 3, 5.) Building Graphics created these designs for use by three single-family home builders: the Chadwyck for use by UDC Homes, Inc., the Ballantrae for use by Hampshire Homes, Inc., and the Springfield for use by Evans Ingraham Builders.

Defendants Lennar Corp. and Lennar Carolinas, LLC (collectively “Lennar”), themselves engaged in the business of constructing single-family residential homes, contracted with Defendant Drafting & Design, which has as its business purpose the creation or modification of architectural drawings and plans, for the preparation of drawings for several homes to be built by Lennar. Plaintiff alleges that Lennar provided Drafting & Design with copies of, or information on, the three aforementioned designs owned by Building Graphics, thereby infringing on its copyrights.

Building Graphics alleges that Lennar had several avenues by which to access the protected designs. First, Building Graphics argues that one of Lennar's employees, John Gardner, was previously employed by UDC Homes and that Mr. Gardner had access to and was otherwise familiar with the Chadwyck and other floor plans designed by Building Graphics. Second, the three plans were all accessible via the website of Building Graphics's affiliate, Living Concepts, Inc. Third, Building Graphics contends that Defendants had access to the designs through homes offered or constructed by UDC, Hampshire Homes, and Evans Ingraham, and through sales and marketing materials circulated by these builders.

Building Graphics's allegations of infringement are as follows:

(1) The “Summerlin,” a Lennar home model, has a floor plan identical or substantially similar to the Chadwyck design, and a front elevation identical or substantially similar to that of the Ballantrae design.

(2) The “Hampton,” a Lennar home model, has a floor plan identical or substantially similar to the Chadwyck design, and an elevation identical or substantially similar to the Springfield design.

(3) The “Hudson,” a Lennar home model, has a floor plan identical or substantially similar to the Chadwyck design, and an elevation identical or substantially similar to the Springfield design.

(4) The floor plan for the “Abbey,” a Lennar home model, is identical or substantially similar to the Chadwyck design.

(5) The floor plan for the “Bluffton,” a Lennar home model, is identical or substantially similar to the Chadwyck design.

Given these allegations, Building Graphics has requested money damages as well as a preliminary and permanent injunction to prevent Defendants from further violating its copyrights.

Drafting & Design maintains it neither used in its work nor had access to Building Graphics's copyrighted material. Rather, Drafting & Design contends that its work was based upon residential plans and elevations that were independently created. This set of architectural plans, known as the “Fairfax” design, were supposedly developed by the Lessard Architectural Group in the Washington, DC area.¹ The Fairfax was then provided by Mr. Gardner, while employed by Lennar, to Drafting & Design for the purpose of redrawing the plan to meet North Carolina requirements and Lennar's Charlotte specifications. By modifying the Fairfax plan, Drafting & Design created either the “Somerset” or “3404,” which then served as the precursor to the “Sumerlin,” “Hampton,” “Hudson,” “Abbey,” and “Bluffton.” ( Compare Doc. 59–6 at 19 with Doc. 59–6 at 40.)

Building Graphics rebuts Defendants' claim of independent creation by noting the time line of the Somerset's development. The earliest Drafting & Design invoices for work done in connection with the challenged plans were billed to Don Galloway Homes, a Charlotte-based homebuilder that was acquired by Lennar on December 21, 2001. (Doc. 54–6 at 3.) It was by means of this acquisition that Mr. Gardner, a former Don Galloway employee, became an employee of Lennar. (Doc. 59–7 at 19.) However, Drafting & Design began working on the challenged plans on or around May 16, 2001. (Doc. 59–8 at 2.) There is no evidence to suggest that, pre-acquisition, Don Galloway had access to Lennar's U.S. Home materials. Defendants have offered no explanation as to the means by which Drafting & Design began work on the challenged plans before John Gardner became a Lennar employee. Furthermore, Defendants have done little to show that the Fairfax was itself created independently of Plaintiff's protected designs. Therefore, because this Order pertains to motions for summary judgment, the Court finds that Defendants have not demonstrated independent creation, and so cannot rebut Plaintiff's prima facie case, by means of the Fairfax.² The Court thus proceeds to determine whether Plaintiff has successfully made out its prima facie case, thereby raising a genuine issue of fact that Defendants have infringed upon Plaintiff's valid copyrights.

II. SUMMARY JUDGMENT STANDARD

A court must grant summary judgment upon finding, based on the pleadings, discovery and disclosure materials, and affidavits, that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The initial burden to demonstrate the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating whether this burden has been met, a court must construe all evidence in the light most favorable to the nonmoving party, resolving all ambiguities and inferences in the nonmovant's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the movant makes a prima facie showing that there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and put forth “specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505. Ultimately, the Court is left to decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52, 106 S.Ct. 2505.

Speaking to the matter of summary judgment in the copyright context specifically, the Eleventh Circuit has noted that

[s]ummary judgment historically has been withheld in copyright cases because courts have been reluctant to make subjective determinations regarding the similarity between two works. However, non-infringement may be determined as a matter of law on a motion for summary judgment, either because the similarity between two works concerns only non-copyrightable elements of the plaintiff's work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.

Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1247 (11th Cir.1999) (internal citations omitted). Summary judgment is particularly appropriate where the allegedly infringing work is merely a compilation of common design ideas, Intervest Constr., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914, 919–20 (11th Cir.2008), as the nature of a compilation narrows the substantial similarity inquiry, Key Publ'ns, Inc. v. Chinatown Today Publ'g Enter., Inc., 945 F.2d 509, 514 (2d Cir.1991). Furthermore, in the case of architectural plans, “modest dissimilarities are more significant than they may be in other types of art works.” Howard v. Sterchi, 974 F.2d 1272, 1276 (11th Cir.1992). Ultimately, if the record...