Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg., LLC

• Decision Date: 29 September 2011
• Docket Number: Civil Action No. 4:10cv129.
• Citation: 827 F.Supp.2d 607
• Parties: CHARLES W. ROSS BUILDER, INC. d/b/a Charles Ross Homes, Plaintiff, v. OLSEN FINE HOME BUILDING, LLC, Beverly Olsen, Boathouse Creek Graphics, Inc., Rick J. Rubin, and Jennifer L. Rubin, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

827 F.Supp.2d 607

CHARLES W. ROSS BUILDER, INC. d/b/a Charles Ross Homes, Plaintiff,

v.OLSEN FINE HOME BUILDING, LLC, Beverly Olsen, Boathouse Creek Graphics, Inc., Rick J. Rubin, and Jennifer L. Rubin, Defendants.

Civil Action No. 4:10cv129.

United States District Court, E.D. Virginia,Newport News Division.

Sept. 29, 2011.

John C. Lynch, Megan E. Burns, Troutman Sanders LLP, Virginia Beach, VA, Robert Armistead Angle, Troutman Sanders LLP, Richmond, VA, for Plaintiff.

Brian Nelson Casey, John Franklin, III, Taylor & Walker PC, Norfolk, VA, Jeffrey Hamilton Geiger, Sands Anderson PC, Mark Daniel Matthews, Linda Marie Quigley, The Matthews Law Group PLLC, Richmond, VA, for Defendants.

OPINION AND ORDER

ROBERT G. DOUMAR, Senior District Judge.

This matter comes before the Court upon Defendants' Olsen Fine Home Building, LLC, Beverly Olsen, Boathouse Creek Graphics, Inc., Rick J. Rubin, and Jennifer L. Rubins (collectively “Defendants”) Motions for Summary Judgment. This Court has subject matter jurisdiction over Plaintiff Charles W. Ross Builder, Inc.'s (“Plaintiff”) Amended Complaint, which alleges violations of the Federal Copyright Act, 28 U.S.C. § 101, et seq., the Digital Millennium Copyright Act, 17 U.S.C. § 1202(b), and the Lanham Act, 15 U.S.C. § 1051 et seq.

Plaintiff is a custom home designer and builder operating primarily in the Williamsburg area of Virginia. Plaintiff is a corporation existing under the laws of the Commonwealth of Virginia and has its principal place of business in Williamsburg, Virginia. (Pl.s Am. Compl. ¶ 2.) Defendant Olsen Fine Home Building, LLC, is a builder in Williamsburg and subdivision of Ford's Colony in Virginia and the builder of the dwelling utilization plans drawn up by Boathouse Creek Graphics. Owner and co-defendant Beverly Olsen reportedly has constructed at least eight houses in the Ford's Colony neighborhood of Williamsburg in the past ten years. Defendant Boathouse Creek Graphics is a residential design corporation organized and existing under the laws of the Commonwealth of Virginia with its principal place of business in Yorktown, Virginia. Finally, Defendants Rick and Jennifer Rubin (“the Rubins”) are individuals residing in Williamsburg, Virginia.

This is a copyright infringement suit concerning a single-family home designed and constructed for the Rubins in the subdivision of Ford's Colony in the Williamsburg area of James City County, Virginia. Plaintiff's Amended Complaint alleges that the Rubins toured a copyrighted model of Plaintiff's “Bainbridge” model home, received a promotional brochure which contained floor plans for many different homes, including the Bainbridge, and subsequently contracted with Defendants Boathouse Creek Graphics, Inc., Olsen Fine Home Building, LLC, and Beverly Olsen, to design and build a home substantially similar to Plaintiff's copyrighted model. Plaintiffs four-count Amended Complaint alleges federal copyright violations against all Defendants (Count One), alleges that the Rubins contributed to or induced said copyright infringement (Count Two), and alleges violations of the Digital Millennium Copyright Act (Count Three) and unfair competition (Count Four) against Boathouse Creek Graphics and Olsen Fine Home Building.

For the reasons stated herein, this Court finds that Defendants' Motions for Summary Judgment are GRANTED.

I. FACTUAL AND PROCEDURAL HISTORY

This case presents a novel situation in the area of Architectural Copyright Law because of the myriad influences dictating nearly every design element of the two houses at issue in this litigation. These governing forces all originate from the simple fact that both of the homes at issue are designed in traditional Georgian style and are located in the Ford's Colony subdivision of historic Williamsburg, Virginia.

A. Ford's Colony

Ford's Colony is one of the largest, if not the largest, gated communities in Virginia. It comprises 3,000 lots, 2,238 individual residences, three golf courses, swimming pools, tennis courts, several recreational facilities, and a Marriott Resort Area.

The subdivision sits in the heart of Williamsburg in James City County, Virginia—also home to the historic College of William and Mary. The second oldest college in the country, the school was chartered in 1693 by King William III and Queen Mary II of England, and broke ground on the Sir Christopher Wren Building in 1695. The Wren Building, designed by famed British architect Sir Christopher Wren, served as the main building of the college in this early period. The building exemplifies the balance and proportion uniquely characteristic of early colonial architecture and is generally accorded to mark the beginnings of colonial architecture, which was the forerunner of Georgian-style architecture in Virginia.

Following the construction of the Wren Building, the Georgian style became the Colonial vogue in Williamsburg, as demonstrated by the numerous other residences in the area famous for their adherence to the boxy, symmetrical Georgian style. Indeed, James City County houses both “Westover Plantation” and “Carter's Grove,” each of which are widely recognized as early examples of Georgian style and which are often referred to as Classical Georgian. Westover Plantation was constructed in 1750 by William Byrd III. Carter's Grove was built around the same time by King Carter for his grandson, Carter Burwell, and was designed by, among others, the Taliaferros, a prominent Virginia family still living in the area.

In light of its close proximity to historic Colonial Williamsburg, development in Ford's Colony is highly restrictive and follows to a large extent the Georgian colonial way. Home design and construction are strictly limited to traditional colonial architecture styles “indigenous to the colonial Virginia area.” Ford's Colony Envtl. Control Comm., Purchaser's Handbook for Single Family Homebuilding at Ford's Colony 3 (2008) [hereinafter “Purchaser's Handbook”]. This is in accord with the stringent residential restrictions which apply to all Ford's Colony properties. In fact, only five architectural styles are permitted in the expansive subdivision: Colonial, Georgian, Classical Revival, Federal/ Adam, and Greek Revival. Id. at 11; see also Ford's Colony Williamsburg, http:// www. fordscolony. com (last visited September 29, 2011) (follow “For Buyers” drop down menu, click on “Custom Home Styles”).

Prior approval by the Environmental Control Committee (“ECC”), a development oversight body, is required to approve the design of any and all homes. To this end, a 102–paged “Purchaser's Handbook” detailing numerous stylistic requirements and limitations on construction is distributed to all persons desiring to build a home in Ford's Colony. The “Purchaser's Handbook” and ECC together “provide reasonable and objective control over site planning, architecture, and landscaping design” in the neighborhood. Purchaser's Handbook, supra, at 11.

The ECC requires that custom homes be “as authentic as practical,” and cautions that “[m]ixtures of architectural styles in one building will not normally be approved.” Id. (“For example, a traditional home of the Georgian period should respect the details and disciplines of that period and not include designs of other eras.”) Ford's Colony's Web site offers guidance on characteristic features of each architecture style and specifically notes that “Georgian Colonial Homes typically have these features: Square, symmetrical shape; paneled front door at center; decorative crown over front door; flattened columns on each side of door; five windows across front; paired chimneys; medium pitched roof; minimal roof overhang.” Ford's Colony Williamsburg, http:// www. fordscolony. com (last visited September 29, 2011) (follow “For Buyers” drop down menu, click on “Custom Home Styles,” click on “Georgian” hyperlink).

More than thirty pages of Ford's Colony's “Purchaser's Handbook” are devoted to pictorial examples of permissible and impermissible design details. For example, lone transom windows, such as might be used to light a shower or closet, are expressly disallowed. Purchaser's Handbook, supra, at Ex. VI–31. Likewise, dormers may not feature siding detail, id. at Ex. VI–33, and dormers accented with circle head windows must be designed such that the circle head projects into the pediment. Id., at Ex. VI–34. The Handbook specifies that spacing between the top of garage doors and the frieze board may not exceed four feet, id. at Ex. VI–32, and provides numerous drawn depictions of permissible cornice detail, deck column detail, chimney elevation and detail, entry pediment elevation, dormer detail, and the like. Id. at Ex. IV–1 to VI–36. The Handbook suggests preferred paint colors, and directs purchasers specifically to the “Historic Williamsburg” paint line by Pratt and Lambert or the “Historic Colors” line by Benjamin Moore and Company. Id. at 11.

It is under the ECC's close scrutiny that designers such as Plaintiff and Defendants Olsen Fine Home Building and Boathouse Creek Graphics draw custom home plans in conformity with the detailed requirements of the Purchaser's Handbook and Ford's Colony's rigidly restrictive covenants. It is not surprising, then, that many homes in the colonial neighborhood, particularly homes built in the same architectural style, resemble each other to a substantial degree. ( See Def.'s Mot. Summ. J., Ex. 7, ECF No. 44 (twenty-one photographs of Georgian style homes in Ford's Colony all displaying common elements of Georgian architecture)). Indeed, the “Purchaser's Handbook” even anticipates “essentially complete duplications of exterior architectural design,” although it requires that such anticipated duplications not be visually in range of each other. Purchaser's Handbook, supra, at 12.

B. Colonial Georgian Architecture

The Georgian style, as first interpreted by Italian architect Andrea Palladio, dominated the British...