Dream Custom Homes Inc. v. Modern Day Constr. Inc.

• Decision Date: 22 February 2011
• Docket Number: Case No. 8:08–CV–1189–T–17AEP.
• Citation: 773 F.Supp.2d 1288
• Parties: DREAM CUSTOM HOMES, INC., Plaintiff,v.MODERN DAY CONSTRUCTION, INC., etc., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

773 F.Supp.2d 1288

DREAM CUSTOM HOMES, INC., Plaintiff,

v.MODERN DAY CONSTRUCTION, INC., etc., et al., Defendants.

Case No. 8:08–CV–1189–T–17AEP.

United States District Court, M.D. Florida,Tampa Division.

Feb. 22, 2011.

Debra Tuomey, Debra Tuomey, Attorney at Law, Spring Hill, FL, for Plaintiff.Frank A. Miller, Joseph A. Lowman, Caglianone, Miller & Anthony, PA, George G. Angeliadis, The Hogan Law Firm, Brooksville, FL, J. Robert McCormack, Lewis, Brisbois, Bisgaard & Smith, LLP, Tampa, FL, for Defendants.

ORDER

ELIZABETH A. KOVACHEVICH, District Judge.

This cause is before the Court on:

Dkt. 78 Motion for Summary Judgment

Dkt. 86 Notice of Filing—Deposition

Dkt. 87 Notice of Filing—Deposition

Dkt. 90 Motion for Summary Judgment

Dkt. 91 Notice—Judicial Notice

Dkt. 92 Response

Dkt. 93 Notice of Filing

Dkt. 94 Response—Judicial Notice

Dkt. 95 Motion for Leave to File Reply

Dkt. 96 Response

Dkt. 100 Response

Dkt. 101 Motion for Summary Judgment

Dkt. 102 Response

Dkt. 103 Request for Oral Argument

The Amended Complaint (Dkt. 33), filed on July 20, 2009, includes Plaintiff Dream Custom Homes, Inc.'s claim for copyright infringement. Plaintiff Dream Custom Homes, Inc. alleges that Defendants copied and/or distributed Plaintiff's Copyrighted Work, and reproduced and/or distributed Plaintiff's Copyrighted Work by creating derivative floor plans and elevations which infringe Plaintiff's Copyrighted Work. Plaintiff attached copies of four Certificates of Registration to the Amended Complaint: 1) Don Calais plans 2, Architectural or Technical Drawings, effective date of registration 9/7/2005; 2) Don Calais June, 2004, Architectural Work, effective date of registration 9/7/2005; 3) Don Calais plans 1, Architectural or Technical Drawings, effective date of registration 9/7/2005; and 4) Don Calais January 2002, Architectural Work, effective date of registration 9/7/2005. These collectively comprise the Copyrighted Work. Plaintiff has also attached a representative facsimile of the alleged Infringing Work, a six-page copy of plans and elevations prepared by Defendant PAR Custom Drafting, dated 2/7/2008, for a residence for Defendant Anthony Piarulli to be constructed by Defendant Modern Day Construction, Inc. at 11188 Kiska Wren Rd., in Hernando County, Florida.

In Count I, Plaintiff Dream Custom Homes, Inc. alleges:

15. In or around the ending months of 2007 and/or the beginning months of 2008, Defendants copied and/or distributed Plaintiff's Copyrighted Work and reproduced and/or distributed Plaintiff's Copyrighted Work by creating derivative floor plans and elevations (hereinafter the “Infringing Work”) which infringe Plaintiff's Copyrighted Work and the '600, '601, '602, and '603 registrations alleged above.....

18. Defendants, without right, license or authority, copied the Copyrighted Work in creating the Infringing Work, which was published and distributed by Defendants, and Defendant Modern Day Construction, Inc. is using the Infringing Work to construct a home for Defendant Anthony Piarrulli at 1118 Kiska Wren Road, Royal Highlands Unit 5, Block 302, Permit Number 1221036, Hernando County, Florida.

In the Amended Complaint, Plaintiff Dream Custom Homes, Inc. seeks entry of a temporary and final injunction, the seizure and impoundment of all copies made or used in violation of Plaintiff's copyrights, the award of actual damages and additional profits of Defendants, or the award of statutory damages resulting from Defendants' infringement of Plaintiff's Copyrighted Work, and the award of attorney's fees and costs. Plaintiff has requested a jury trial.

I. Standard of Review

Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

“The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The appropriate substantive law will guide the determination of which facts are material and which facts are ... irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. But, “[i]f the evidence is merely colorable ... or is not significantly probative ... summary judgment may be granted.” Id. at 249–50, 106 S.Ct. 2505.

In Herzog v. Castle Rock Entertainment, Inc., 193 F.3d 1241, 1247 (11th Cir.1999), the Eleventh Circuit Court of Appeals states:

Summary judgment historically has been withheld in copyright cases because courts have been reluctant to make subjective determinations regarding the similarity between two works. See, Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.) (citing Arnstein v. Porter, 154 F.2d 464, 474 (2d Cir.1946)). cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980). 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 plaintiffs work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar. Beal v. Paramount Pictures Corp., 20 F.3d 454 (11th Cir.1994). cert. denied, 513 U.S. 1062, 115 S.Ct. 675, 130 L.Ed.2d 607 (1994); Warner Bros. Inc. v. Am. Broadcasting Cos., 720 F.2d 231, 240 (2d Cir.1983) (quoting Hoehling, 618 F.2d at 977) (emphasis in original) (citation omitted), aff'd 530 F.Supp. 1187 (S.D.N.Y.1982), after remand, 654 F.2d 204 (2d Cir.), aff'g and remanding, 523 F.Supp. 611 (S.D.N.Y.1981).

The use of summary judgment has been approved in cases where: 1) because access has been established, the crucial issue is substantial similarity; 2) there may be substantial similarity with respect to the non-copyrightable elements of the two works compared; and 3) as to the protectable elements, there is substantial dissimilarity. Oravec v. Sunny Isles Ventures, L.C., 527 F.3d 1218 (11th Cir.2008).

Summary judgment is appropriate when the substantial similarity determination involves an architectural work that is merely a compilation of common design ideas. Intervest Const., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914, 919–20 (11th Cir.2008). The substantial similarity inquiry is “narrowed” when dealing with a compilation. Key Publications, Inc. v. Chinatown Today Publ'g Enter., Inc., 945 F.2d 509, 514 (2d Cir.1991). When viewed through the lens of compilation analysis, only the original, and thus protected arrangement of spaces, elements and other staple building components should be compared. Intervest Construction at 919. 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).

II. Defendant's Motion for Summary Judgment

Defendant Modern Day Construction, Inc. seeks entry of summary judgment in favor of Defendant because, at the level of protected expression, the differences between the Don Calais plans and elevations and the Piarulli plans and elevations are so significant that no reasonable, properly instructed jury could find the works substantially similar. Defendant Modern Day Construction, Inc. requests that the Court find, as a matter of law, that the Don Calais plans 1 and Don Calais plans 2 are not substantially similar to the Piarulli plans.

Defendant Anthony Piarulli has filed a separate Motion for Summary Judgment (Dkt. 101) which seeks entry of summary judgment in favor of Defendant Piarulli on the same basis as the Motion for Summary Judgment of Defendant Modern Day Construction, Inc. Defendants PAR Custom Drafting, Inc. and Phillip Roush have filed a separate Motion for Summary Judgment (Dkt. 90) which seeks entry of summary judgment on the same basis as the Motion for Summary Judgment of Defendant Modern Day Construction, Inc. Any reference to Defendant Modern Day Construction, Inc.'s Motion for Summary Judgment also includes the Motions for Summary Judgment of the other Defendants.

Substantial similarity to show that an original work has been copied is not the same as substantial similarity to prove infringement. Substantial similarity to prove infringement is a narrower inquiry than probative similarity, focused only on the elements of the copyrighted work that are protectable and whether whatever copying took place appropriated those elements.

Substantial similarity exists “where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir.2000). “An ‘average lay observer’ presumably is an individual who, without any vested interest in the governing issue, is sufficiently informed and alert to identify precisely the differences in the competing designs, yet sufficiently informed and independent to fairly identify and assess the similarities; that is, at a minimum, neither an engaged expert nor an oblivious passerby.” Arthur Rutenberg Homes, Inc. v. Maloney, 891 F.Supp. 1560, 1567 (M.D.Fla.1995).

III. Plaintiff's Response

Plaintiff responds that there are disputed issues of material fact which preclude the entry of summary judgment as to the validity of Plaintiff's copyright...