Collective v. Pucciano, CIVIL ACTION NO. 1:15–cv–00842–AT

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
• Citation: 247 F.Supp.3d 1322
• Docket Number: CIVIL ACTION NO. 1:15–cv–00842–AT
• Parties: ARCHITECTS COLLECTIVE, a Sole Proprietorship of Larry Kester, Plaintiff, v. PUCCIANO & ENGLISH, INC., a Georgia Corporation, Defendant.
• Decision Date: 29 March 2017

247 F.Supp.3d 1322

ARCHITECTS COLLECTIVE, a Sole Proprietorship of Larry Kester, Plaintiff,
v.
PUCCIANO & ENGLISH, INC., a Georgia Corporation, Defendant.

CIVIL ACTION NO. 1:15–cv–00842–AT

United States District Court, N.D. Georgia, Atlanta Division.

Signed March 29, 2017

247 F.Supp.3d 1326

Brenna Nicole Wiebe, Thomas M. Askew, Wm. Greg James, Riggs, Abney, Neal, Turpen, Orbison & Lewis PC, Tulsa, OK, Chad C. Taylor, Riggs, Abney, Neal, Turpen, Orbison & Lewis PC, Oklahoma City, OK, Martha Logan Decker, Steven G. Hill, Hill Kertscher & Wharton, LLP, Atlanta, GA, for Plaintiff.

Jeffrey William Melcher, Tawana Blocker Johnson, Wilson Elser Moskowitz Edelman & Dicker LLP, Atlanta, GA, for Defendant.

ORDER

Amy Totenberg, United States District Judge

Architects Collective, a sole proprietorship of architect Larry Kester, brought this action for alleged copyright infringement against a competing architecture firm, Pucciano & English, Inc. ("Pucciano & English"). Kester contends that Pucciano & English copied Kester's federally-registered architectural plans for Unit A1 (one bedroom), Unit B2 (two bedroom), Unit C2 (three bedroom) apartment units. Plaintiff asserts that Architects Collective's and Pucianno & English's shared client, Crowne Partners, was the conduit by which Defendant obtained Architects Collective's plans for the three individual apartment unit plans.

Defendant's Motion to Exclude Expert Testimony of Larry Kester [Doc. 81] and Defendant's Motion for Summary Judgment [Doc. 82] are pending before the Court. In the Motion to Exclude, Defendant seeks to prevent Larry Kester from offering any testimony regarding the similarities between the Architects Collective plans and the Pucianno & English plans. In the Motion for Summary Judgment, Defendant seeks judgment as a matter of law in its favor that: (a) Plaintiff does not own valid copyrights in his plans, or (b) that the Pucianno & English plans do not infringe the Architects Collective plans because the plans are are not substantially similar.

The Court's rulings are set forth below.

I. BACKGROUND ¹

Architects Collective is a sole proprietorship owned by Larry Kester. (Def.'s

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Stmt. Mat. Facts ("Def.'s SMF") ¶ 1.) Larry Kester is a licensed architect in 30 states. (Expert Deposition of Larry Kester ("Kester Expert Dep.") at 39; Kester CV, Doc. 87–4.) He has served as the owner and founder of Architects Collective for 35 years. (Kester CV, Doc. 87–4.) Roughly ninety (90%) percent of Mr. Kester's work at Architects Collective is designing multifamily housing (i.e. apartments). (See Kester Expert Dep. at 36.) Throughout his career, he has designed approximately 365 multifamily projects. (Id. at 45.)

From 1987 to 2011, Mr. Kester designed approximately 25 garden style apartment communities for Crowne Partners. (Id. ¶¶ 2–3.) Kester designed Crowne at Hattiesburg, Crowne at Swift Creek, and Crowne Lake for Crowne Partners. (Id. ¶ 5.) Each of these projects contained various individual unit plans, including a one bedroom unit designated Unit A1; a two bedroom unit designated Unit B2; and a three bedroom unit designated Unit C2. (Id. ¶ 6.)

Kester, doing business as Architects Collective, applied for and received copyright registrations for each of these projects. (Id. ¶ 8; Doc. 82–2 at 38–40, 42.) Kester certified on the copyright application for each project that he was the sole author of each work. (Def.'s SMF ¶ 9.) Kester did not indicate on the copyright applications whether other individuals provided design services for each project or that the projects were derivative works. (Id. ¶¶ 10–11.) The deposit that Kester submitted to the Copyright Office with the applications was not a complete set of plans. (Id. ¶ 12.)

In 2011, due to growing competition in the market, Crowne Partners decided to move away from developing garden style apartments and shifted to a mid-rise product, which would allow for more units on less land. (Deposition of Alan Levow² ("Levow Dep.") at 60.) Crowne Partners was not satisfied with Larry Kester's design plan for the mid-rise concept and felt he did not have the necessary level of experience with that particular format as opposed to the garden style. (Id. at 61–63.) As a result, Crowne Partners retained David English of Defendant Pucciano & English to design the plans for its new mid-rise concept communities at Crowne at Maybank, Crowne at Cahaba River, Crowne on Timberline, and Crowne at Cary Place.³ (Id. at 61–62; Def.'s SMF ¶ 16.)

Crowne Partners had hard copies of the Architects Collective plans in its possession from previous projects. (Pl.'s Add'l Mat. Facts ("Pl.'s SMF") ¶ 8.) After hiring Pucciano & English in 2011 to replace Architects Collective, Alan Levow asked Butch Rigsby⁴ to send architectural plans of Kester's most current jobs for Crowne Partners to Pucciano & English. (Deposition of Harold D. "Butch" Rigsby ("Rigsby Dep.") at 15–16; see also Def.'s SMF ¶ 23.)

247 F.Supp.3d 1328

Rigsby "respectfully declined" to do so "because of the copyright infringements." (Id. at 16.) Around that same time in 2011, Levow asked Rigsby to approach Kester about Crown Properties' purchasing a license to use Kester's architectural plans because Crowne Partners liked certain units Kester had designed.⁵ (Rigsby Dep. at 23–24; Levow Dep. at 24–25.) Kester declined the offer. (Levow Dep. at 24–25.) According to Alan Levow, no one from Crowne Partners ever gave copies of Kester's architectural plans to Pucciano & English. (Levow Dep. at 42–43.) Alan Levow enlisted the help of a second architect, Laura Howard Depree, to help Pucciano & English finalize some of the individual unit plans for the new projects. (Def.'s SMF ¶ 18.) Levow testified that Depree asked to see Crowne Partner's prior plans designed by Kester because she had no experience designing plans for apartments, but that he did not share them with her. (Levow Dep. at 43–44.) And according to David English, the first time he saw Kester's architectural plans were when this lawsuit was filed. (Deposition of David English ("English Dep.") at 29.)

The projects designed by Mr. English for Crowne Partners contained a variety of individual unit plans. Specifically, the plans contained a one bedroom unit in Crowne at Maybank designated Unit A4; a two bedroom unit that appears in all four projects designated as Unit B2; and a three bedroom unit that appears in all four projects designated as Unit C1. (Def.'s SMF ¶ 26.)

In approximately November 2014, Larry Kester allegedly discovered that Crowne Partners was using individual unit plans (Pucciano & English Unit A, Unit B, and Unit C) that he considered were copied from plans that he designed (Architects Collective Unit A, Unit B, and Unit C). (Def.'s SMF ¶ 200.) Kester filed suit for copyright infringement under the Copyright Act on March 24, 2015, alleging that Pucciano & English's plans for the Crowne at Cahaba River, Crowne at Timberline, Crowne at Maybank Village, and Crowne at Cary Place projects are virtually identical to Architects Collective's plans for Crowne at Hattiesburg, Crowne at Swift Creek, and Crowne Lake. (Compl. ¶¶ 9, 10, 13; Compl. Exs. A & B.) Architects Collective alleges that the plans are substantially similar "in the following respects, among others: the same number of units per floor, the same arrangement of dwelling units within each building, the same arrangement of spaces within each dwelling unit, placement of unit amenities, and configuration of units." (Id. ¶¶ 10, 17.) Plaintiff attached an "Exemplar of the similarity in plans" as Exhibit B to the Complaint, consisting of the following:

(1) A two bedroom unit plan designed by Defendant, (Doc. 1–2 at 2);

(2) A two bedroom unit plan designed by Plaintiff, designated "Unit Plan—B2," (id. at 3);

(3) A three bedroom unit plan designed by Defendant, (id. at 4); and

(4) A three bedroom unit plan designed by Plaintiff, designated "Unit Plan—C2.2," (id. at 5).

Subsequently in discovery, Plaintiff identified additional unit plans—a one bedroom unit plan designated as Unit A1 and a three bedroom unit plan designated as Unit C2, alleged to have been infringed by Defendant's plans. Although the Complaint was never formally amended to specifically reflect allegations regarding these additional plans, Defendant has not challenged Plaintiff's reliance on these plans in support of its infringement claims.

247 F.Supp.3d 1329

In general, Larry Kester contends that the architectural designs of Architects Collective and Pucciano & English have the following similarities:

One Bedroom Units (A1 and A4)

1. Overall form, look and feel of the dwelling units;

2. Overall layout of primary spaces and certain secondary spaces of the dwelling units;

3. Kitchen arrangements and arrangement of kitchen appliances;

4. Nine (9) foot ceiling heights;

5. Vaulted ceilings in top floor units;

6. Crown molding in living and dining rooms;

7. Location of wall mounted air handler and low boy water heater spaces; and

8. Use of ceiling fans.

Two Bedroom Units (B2)

1. Overall form, look and feel of the dwelling units;

2. Overall layout of primary spaces and certain secondary spaces

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