Nason Homes, LLC v. Billy's Constr., Inc.
| Decision Date | 05 November 2015 |
| Docket Number | Civil No. 3:14-cv-566 |
| Court | U.S. District Court — Middle District of Tennessee |
| Parties | NASON HOMES, LLC, Plaintiff, v. BILLY'S CONSTRUCTION, INC., d/b/a BILL MACE HOMES, et al. Defendants. |
MEMORANDUM
Plaintiff Nason Homes, Inc. brings a claim for copyright infringement against Defendants Bill Mace and Billy's Construction, Inc. (also known as Bill Mace Homes). Plaintiff's Complaint ("Complaint") (Docket No. 1) alleges that Defendants used Plaintiff's copyright-protected architectural plan to build and sell a home in Clarksville, Tennessee. Plaintiff has filed a motion for summary judgment (Docket No. 109) against Defendants pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The Court will deny Plaintiff's motion.
The following facts are undisputed. Plaintiff is a construction company based in Georgia. In 2012, Plaintiff hired John Hemlick to design several residential houses for Plaintiff to build. One of those designs is known as the Alder Plan.
The Alder Plan is a detailed architectural drawing of a two-story home with five bedrooms. The house is 40 feet, four inches wide and 42 feet long, with a 12-foot-by-16-foot porch attached to the back of the house. Its roof, made of fiberglass shingles, is set at a 10/12 pitch on the sides and an 8/12 pitch on the front and back. The front of the house has a 20-foot-by-four-foot covered porch on one side and a two-car garage on the on the other.
The first floor consists of a dining room, a kitchen with a breakfast nook, a bedroom, a bathroom, and a family room with a vaulted ceiling. The second floor consists of a master bedroom, three smaller bedrooms, two bathrooms, and a walk-in closet. The two floors are connected by a two-story foyer with a staircase. The front of the house has two slim vertical windows on either side of a wooden door.
In 2012, Hemlick assigned to Plaintiff all of his copyrights in the Alder Plan. Plaintiff now owns a valid copyright—under U.S. Copyright Registration No. VA0001888774—in the Alder Plan. (See Docket No. 1, Ex. B.) Plaintiff's copyright covers four variations on the Alder: the Alder A, the Alder B, the Alder C, and the Alder D. All four variations have identical dimensions and room layouts. They differ only with respect to the construction materials used for the front of the house. The Alder A uses shake siding and brick; the Alder B uses shake siding and stacked stone veneer; the Alder C uses shake siding and horizontal siding; and the Alder D uses brick veneer.
In 2013, Plaintiff gave a copy of the Alder plan to a realtor named Brittany Hopkins of Meybohm Realtors. Hopkins was selling Plaintiff's homes in Georgia at the time. Plaintiff soon learned that Meybohm had posted a copy of the Alder plan to its website. Plaintiff immediately requested Meybohm to remove the plan from the website, and Meybohm complied.
In November, 2013, Defendants obtained a copy of floor plans for a house at 3168 Porter Hills Drive, Clarksville, Tennessee. A month later, Defendants were granted a building permit for the house.
Plaintiff soon learned that the house being built on Porter Hills Drive was strikingly similar to the Alder D. On Defendant's Facebook page, Plaintiff found an online photograph that showed the house under construction (Docket No. 109, Ex. 5). (Beneath the online photo is a caption identifying the house as "12 Porter Hills.") (Docket No. 109, Ex. 5.) Plaintiff also took several photos of the house, including the interior of the first floor during construction (Docket No. 1, Ex. C), and the exterior of the finished house from the street (Docket No. 109-8). These photographs show a two-story brick house with a two-car garage on one side of the first story and a narrow porch on the other side. The front door stands between two narrow windows and the roof has an 8/12 pitch on all sides.
Plaintiff filed this suit on February 24, 2014. Its complaint alleges that Defendants "infringed [Plaintiff's] copyright by building . . . almost an exact replica of the [Alder] plan." (Docket No. 1, p. 10.)
Summary judgment is appropriate only when the evidence shows 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). A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A court's function at the summary-judgment stage is not "to weigh the evidence and determine the truth of the matter," but rather to "determine whether there is a genuine issue for trial." Id. at 249. A court must draw "all reasonable inferences in favor of the nonmoving party." Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 132 (6th Cir. 2014). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Copyright Act protects "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a). A copyright holder has certain exclusive rights to the work, including the right to reproduce the work. Id. at § 106.
To prevail on a copyright claim, a plaintiff must prove (1) that the plaintiff owns a valid copyright and (2) that the defendant copied original or protectable aspects of the copyrighted work. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991); Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir. 2004). The second element requires the plaintiff to show "not only that the defendant actually copied the plaintiff's work, but also that the defendant's work is 'substantially similar' to protectable elements of the plaintiff's work." Strurdza v. United Arab Emirates, 281 F.3d 1287, 1295 (D.C. Cir. 2002).
There is no question about Plaintiff's ownership of the copyright in the Alder Plan. Plaintiff argues that it "own[s] . . . a valid copyright in the Alder Plan" by virtue of a certificate of registration (Docket No. 1, Ex. B) and the transfer of the copyright from Hemlick . (Docket No. 109-1, p. 4.)
The Court agrees. Plaintiff's registration certificate is prima facie evidence that it owns the copyright to the Alder Plan. Id. § 410(c); Monogram Models, Inc. v. Industro Motive Corp., 448 F.2d 284 (6th Cir. 1971). The certificate refers to "The Alder," designed by John Hemlick in 2012 and transferred to Plaintiff "[b]y written agreement." (Docket No. 1, Ex. B, p.1.) Itincludes architectural drawings that show the Alder's dimensions, layout, and materials. The certificate covers the four variations of the Alder, including the Alder D.
Defendants offer no reason to doubt Plaintiff's ownership: they state that Plaintiff's ownership "is not at issue" and concede that they "do not . . . possess facts or documents to indicate that [Plaintiff's] Copyright registration is unenforceable." (Docket No. 118, p. 8; Docket No. 138, Ex. B, p. 2.) The first element of Plaintiff's infringement claim is satisfied.
The Court turns to the question of copying. To show that a work was copied, "a plaintiff must either introduce direct evidence of the defendant's copying or prove it indirectly." Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 274 (6th Cir. 2009). Indirect proof of copying requires a showing that (1) the defendant had "access to the [protected] work," and (2) the allegedly-infringing work is "substantial[ly] similar[]" to the protected work. Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003).
Plaintiff has offered indirect proof that Defendants copied the Alder Plan. According to Plaintiff, Defendants "built the Infringing House based on [a] copy of the Alder Plan." (Docket No. 109-1, p. 4.)
A plaintiff shows that a defendant had access to a protected work by showing that there was "a reasonable opportunity for [the protected] work to have been available to [the] defendant." Martinez v. McGraw, 581 Fed. App'x 512, 514 (6th Cir. 2014). See also Jones v. Blige, 558 F.3d 485, 491 (6th Cir. 2009); Winfield Collection, Ltd. v. Gemmy Indus., Corp., 2005 WL 2077510, at *5 (6th Cir. 2005).
Defendants argue that they never had the Alder Plan when they built the house on Porter Hills Drive. In a declaration attached to Defendants' opposition brief, Bill Mace stated that "[n]either [he] nor Bill Mace Homes were ever in possession of 'The Alder' floorplan." (Docket No. 119, p. 1.) He also asserted that he was "unaware of . . . the Alder Plan," and that nobody "provided [him] with any floorplan, drawing, or sketch of the Alder Plan when [he] built" the house. (Docket No. 119, p. 2.)
Plaintiff disagrees, arguing that discovery has essentially proven that Defendants had access to the Alder Plan. In particular, Plaintiff points to Bill Mace's interrogatory responses from May 27, 2015, in which Mace admitted that he "obtained the floor plans and designs" for the house at 3168 Porter Hills Drive "from an individual framer . . . who was employed by Singletary Construction, LLC." (Docket No. 138, Ex. B, p. 2.) Mace also stated that he received those plans "in approximately November 2013, which was immediately prior to [Defendants] obtaining [their] permit to build" the house. (Docket No. 138, Ex. B, p. 2.) The design that the framer gave Mace, Plaintiff argues, is "an exact copy of the Alder Plan[.]" (Docket No. 138, p. 3.)
The court agrees with Plaintiff. Plaintiff's supplemental evidence includes a copy of Defendants' design for the house at 3168 Porter Hills Drive. That design appears to be a photocopy of the Alder Plan. The materials, dimensions, and room layout on Defendant's design are exactly the same as those on the Alder plan; the words "the Alder D" are even printed...
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