Humphreys & Partners Architect v. Lessard Design, Incorporated
Filing
AMENDED OPINION filed amending and superseding opinion dated 06/23/2015. Originating case number: 1:13-cv-00433-TSE-TCB Copies to all parties.. [14-2030]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2030
HUMPHREYS & PARTNERS ARCHITECTS, L.P.,
Plaintiff – Appellant,
v.
LESSARD DESIGN, INCORPORATED; LESSARD GROUP INCORPORATED;
CHRISTIAN J. LESSARD; CLARK BUILDERS GROUP, LLC; PDT
BUILDERS, LLC; THE PENROSE GROUP; SIXTH PENROSE INVESTING
COMPANY LLC; NORTHWESTERN INVESTMENT MANAGEMENT COMPANY,
LLC; NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,
Defendants – Appellees,
and
PENROSE
PARTNERS;
PARK
CREST
PENROSE/DONOHOE TYSONS, LLC,
SPE
PHASE
I,
LLC;
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:13-cv-00433-TSE-TCB)
Argued:
May 12, 2015
Decided:
Amended:
June 23, 2015
June 24, 2015
Before SHEDD, DUNCAN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Shedd and Judge Harris joined.
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ARGUED: Patrick Andrew Zummo, LAW OFFICES OF PATRICK ZUMMO,
Houston, Texas, for Appellant.
Patrick Joseph Coyne, FINNEGAN,
HENDERSON, FARABOW, GARRETT & DUNNER, LLP, Washington, D.C.;
Antigone Gabriella Peyton, CLOUDIGY LAW PLLC, McLean, Virginia,
for Appellees. ON BRIEF: Walter D. Kelley, Jr., HAUSFELD, LLP,
Washington, D.C.; Jennifer L. Swize, JONES DAY, Washington,
D.C., for Appellant.
Kandis M. Koustenis, CLOUDIGY LAW PLLC,
McLean, Virginia, for Appellees The Penrose Group, PDT Builders,
LLC, Sixth Penrose Investing Company LLC, and Clark Builders
Group, LLC; Christopher P. Foley, FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP, Washington, D.C., for Appellees Lessard
Design, Incorporated, Lessard Group Incorporated, and Christian
J. Lessard; Christopher P. Mead, LONDON & MEAD, LLP, Washington,
D.C., for Appellees Northwestern Investment Management Company,
LLC and Northwestern Mutual Life Insurance Company.
2
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DUNCAN, Circuit Judge:
In
this
architectural
Plaintiff-Appellant
copyright
Humphreys
&
infringement
Partners
action,
Architects,
L.P.
(“HPA”) appeals the district court’s entry of summary judgment
in favor of Defendants-Appellees Lessard Design, Inc., Lessard
Group, Inc., and Christian J. Lessard (collectively, “Lessard”);
Clark
Builders
Penrose
Group,
Group,
(collectively,
LLC
and
(“Clark”);
Sixth
“Penrose”);
PDT
Penrose
and
Builders,
Investing
Northwestern
LLC,
Co.,
The
LLC
Investment
Management Co., LLC, and Northwestern Mutual Life Insurance Co.
(collectively,
“Northwestern”).
HPA
claims
that
the
design,
development, ownership, and construction of Two Park Crest, an
apartment
building
in
McLean,
Virginia,
infringed
HPA’s
architectural copyright embodied in Grant Park, a condominium
building in Minneapolis, Minnesota. 1
The district court awarded
summary judgment to Appellees, primarily because no reasonable
jury could find that the Grant Park and Two Park Crest designs
are
substantially
similar.
For
the
following
reasons,
we
affirm.
1
The Appendix to this opinion includes a comparison
prepared by HPA’s founder and CEO of the two designs’ floorplans
and exteriors. See infra Appendix; see also J.A. 5220, 5222.
3
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I.
A.
HPA is an architecture firm based in Dallas, Texas, that
designs multi-family residential buildings.
In 2000 and 2001,
HPA designed a high-rise residential tower known as Grant Park.
In
2003,
HPA
registered
the
Grant
Park
design
as
an
architectural work with the United States Copyright Office and
received a certificate of copyright registration.
Park
building
was
constructed
in
Minneapolis,
The Grant
Minnesota,
in
2004.
Grant Park is a 27-story condominium building with 11 units
per floor.
It has two separate elevator cores, such that each
floor has two elevator lobbies.
The units on a typical floor
open directly into these lobbies, five units into one and six
into the other.
The lobbies also each provide access to a
stairwell and to either a trash chute or a mechanical/electrical
room.
Residents
unfinished
can
service
travel
corridor,
between
which
the
lobbies
allows
all
access both utility rooms and both stairwells.
layout
is
desirable
because
it
eliminates
through
an
residents
to
This dual-core
the
need
for
a
finished central hallway and fosters a sense of community among
the units sharing a lobby.
In
building
2008,
Penrose
called
Two
began
Park
developing
Crest
4
for
a
high-rise
construction
apartment
in
McLean,
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In 2010, it solicited design proposals from three
architecture firms, including HPA and Lessard, a firm based in
Vienna, Virginia.
HPA submitted illustrations of its Grant Park
design in September 2010 and met with Penrose in October 2010.
On
November
3,
2010,
Penrose
informed
Lessard
that
it
wanted the Two Park Crest design to feature dual elevator cores
connected by a service corridor, and emailed Lessard the Grant
Park floorplan to illustrate the concept.
Later that month, on
November 15, Lessard emailed Penrose a preliminary sketch of a
design
with
design
was
two
elevator
“looking
cores;
good.”
J.A.
Penrose
responded
9033.
Lessard
that
the
ultimately
submitted a design for a 19-story building with 17 apartments
per floor.
The design incorporated three elevator cores: two
passenger elevator cores connected by an unfinished hallway, and
a service elevator core accessible from that hallway.
Of the 17
apartments per floor, 8 would open directly into one passenger
elevator lobby and 9 would open directly into the other.
On November 17, 2010, Penrose told HPA that it had hired
Lessard
to
subsequently
2011,
design
sold
Northwestern
the
the
Two
Park
project
hired
to
Clark
to
Crest
project.
Northwestern.
construct
Two
In
November
Park
Clark began constructing the building in January 2012.
5
Penrose
Crest.
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B.
In April 2013, HPA filed this action against Appellees
2
under 17 U.S.C. § 101 et seq., alleging one count of copyright
infringement against each Appellee.
Following discovery, the
parties cross-moved for summary judgment.
Appellees argued that
they were not liable to HPA because, among other reasons, they
did not copy the Grant Park design and the two designs are not
substantially similar.
expert
reports
filed
Appellees supported their motions with
by
three
architects--Stephen
Gresham,
Robert Greenstreet, and Douglas Carter--who concluded in their
reports that the two designs are not substantially similar.
HPA
motions
argued
that
in
its
Lessard
motion
copied
and
the
receiving that design from Penrose.
responses
Grant
Park
to
Appellees’
design
after
It claimed that the speed
with which Lessard created the Two Park Crest design is direct
evidence of copying, and that the similarities between the two
designs is circumstantial evidence of copying.
HPA supported
its claim that the two designs are substantially similar with a
declaration from architect and HPA expert Daniel Figert, who
identified
nine
characteristics
shared
by
both
designs--for
example, both designs are for multi-family buildings that are
2
HPA also brought a claim against Penrose Partners, Park
Crest SPE Phase I, LLC, and Penrose/Donohoe Tysons, LLC, none of
which is a party to this appeal.
6
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approximately
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twenty
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stories
tall,
that
have
two
elevator
lobbies connected by a service corridor, and that provide direct
access to units from the elevator lobbies. 3
presence
and
arrangement
of
these
nine
HPA argued that the
features
in
Two
Park
Crest infringed its copyright in the Grant Park design.
HPA
also
moved
to
strike
Gresham’s,
Greenstreet’s,
and
Carter’s expert reports on the ground that those reports were
inadmissible
hearsay.
In
response,
Appellees
provided
declarations from the experts verifying the contents of their
reports and stating that they would testify at trial to the
substance thereof.
The district court then denied HPA’s motions
to strike, reasoning that the declarations, although belated,
cured HPA’s objection.
On September 2, 2014, the district court granted Appellees’
motions for summary judgment.
The court determined that summary
judgment was appropriate because, among other reasons, (1) there
was no direct evidence of copying, and (2) no reasonable jury
3
Figert also stated that both buildings have a “barbell”shaped footprint, have “similar top story and fenestration
[(i.e., window)] elements” that are constructed of “the same
materials,” and have a roof with a “cantilevered overhang” (i.e,
a roof extending beyond the exterior wall that is supported by a
beam anchored only inside the exterior wall).
J.A. 5559–60
(Figert Declaration).
And, with respect to the typical
floorplans in each design, Figert stated that each building has
“mechanical / electrical rooms located at one end of the fire
corridor and the trash chutes located at the opposite end,” and
that the corner units in each design have “diagonal access
corridors.” Id. at 5559.
7
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could find that the Grant Park and Two Park Crest designs are
extrinsically (i.e., objectively) similar.
The court held that the two designs are not extrinsically
similar
for
two
neither
the
nine
independently
features
sufficient
that
Figert
reasons.
identified
First,
nor
their
arrangement in Grant Park is eligible for copyright protection.
And
second,
those
features
are
presented
differently in the Two Park Crest design.
and
arranged
With respect to the
arrangement of the nine features in the two designs, the court
noted that Appellees’ experts had provided detailed explanations
as to how the two designs differ with respect to their size,
footprints, floorplans, and exterior appearances.
HPA’s expert,
in contrast, “offer[ed] no evidence as to what makes the two
arrangements
extrinsically
similar.”
Humphreys
&
Partners
Architects, L.P. v. Lessard Design, Inc., 43 F. Supp. 3d 644,
677 (E.D. Va. 2014).
The court concluded that Appellees were
“entitled to summary judgment . . . based on the results of the
extrinsic similarity analysis.”
Id.
HPA timely appealed.
II.
Before turning to HPA’s arguments on appeal, we set forth
the law governing architectural copyright infringement claims.
“Copyright
protection
subsists
.
.
.
in
original
works
of
authorship fixed in any tangible medium of expression . . . from
8
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which
they
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can
be
perceived,
communicated . . . .”
expanded
the
scope
“architectural
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reproduced,
17 U.S.C. § 102(a).
of
“works
works,”
id.
§
of
or
otherwise
In 1990, Congress
authorship”
102(a)(8),
by
to
include
enacting
the
Architectural Works Copyright Protection Act (the “AWCPA”), Pub.
L. No. 101–650, §§ 701–706, 104 Stat. 5089 (1990) (codified in
various
sections
of
17
U.S.C.).
The
AWCPA
defines
an
architectural work as “the design of a building as embodied in
any tangible medium of expression.”
includes
the
overall
form
as
17 U.S.C. § 101.
well
as
the
“The work
arrangement
and
composition of spaces and elements in the design, but does not
include
individual
legislative
standard
history
features.”
explains
composition
of
spaces
and
“creativity
in
selection,
coordination,
that
the
elements
architecture
is
frequently
or
Id.
at
18
(1990),
protectable
takes
arrangement
reprinted
in
1990
AWCPA’s
arrangement
the
of
elements into an original, protectible whole.”
101–735,
The
and
because
form
of
a
unprotectible
H.R. Rep. No.
U.S.C.C.A.N.
6935,
6949.
“To
establish
a
claim
for
copyright
infringement,
a
plaintiff must prove that it owned a valid copyright and that
the defendant copied the original elements of that copyright.”
Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 801
(4th
Cir.
2001).
“Copying
can
9
be
proven
through
direct
or
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circumstantial evidence.”
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Bldg. Graphics, Inc. v. Lennar Corp.,
708 F.3d 573, 578 (4th Cir. 2013).
“Direct evidence of copying . . . includes evidence such as
party
admissions,
witness
accounts
of
the
physical
act
of
copying, and common errors in the works of plaintiffs and the
defendants.”
Rottlund Co. v. Pinnacle Corp., 452 F.3d 726, 732
(8th Cir. 2006).
In M. Kramer Manufacturing Co. v. Andrews, 783
F.2d 421 (4th Cir. 1986), for example, we found direct evidence
of copying where “[t]he computer programs in the record [were]
virtually
identical”
and
the
defendants’
program,
like
plaintiff’s, included “a hidden legend that would appear only
when
the
[program’s]
sequence,”
id.
at
buttons
446.
were
Similarly,
pressed
our
in
sister
an
abnormal
circuits
have
found direct evidence of copying where a defendant “gave . . .
explicit instruction that [a] work be copied,” Rogers v. Koons,
960
F.2d
admitted
301,
to
307
copying
(2d
Cir.
the
1992),
plaintiff’s
and
where
work,
the
see,
defendant
e.g.,
Enter.
Mgmt. Ltd. v. Warrick, 717 F.3d 1112, 1120 (10th Cir. 2013);
Soc’y of Holy Transfiguration Monastery, Inc. v. Gregory, 689
F.3d 29, 49 (1st Cir. 2012).
“Where
direct
evidence
of
copying
is
lacking,
[the]
plaintiff may prove copying by circumstantial evidence in the
form of proof that the alleged infringer had access to the work
and
that
the
supposed
copy
is
10
substantially
similar
to
the
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author’s original work.”
Bouchat v. Baltimore Ravens, Inc., 241
F.3d
Cir.
350,
353-54
(4th
2001).
To
show
substantial
similarity, the plaintiff must establish that the two works are
both
“extrinsically”
and
“intrinsically”
similar.
Universal
Furniture Int’l, Inc. v. Collezione Europa USA, Inc., 618 F.3d
417,
435
(4th
objective
Cir.
one”
substantial
protected
2010).
that
similarity
elements
of
“The
extrinsic
inquiry
to
‘external
criteria’”
“looks
between
the
the
copyrighted
alleged
copy
work.
Id.
is
and
at
an
of
the
435–36
(quoting Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435,
1442 (9th Cir. 1994)).
implicates
the
“The intrinsic inquiry, in contrast,
perspective
of
the
[works’]
intended
observer
. . . [and] looks to the ‘total concept and feel of the works
. . . .’”
Id. at 436 (quoting Lyons P’ship, 243 F.3d at 801).
While we have applied this two-part substantial similarity
test in a variety of copyright contexts, we have not expressly
held in a published opinion that this test governs claims of
architectural copyright infringement.
The parties both argue,
and the district court determined, that the extrinsic/intrinsic
test governs.
We agree, and therefore hold that “the two-part
test for determining substantial similarity . . . is applicable
to
a
works.”
copyright
infringement
claim
involving
architectural
Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg.,
LLC, 496 F. App’x 314, 320 (4th Cir. 2012); see also Bldg.
11
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Graphics, 708 F.3d at 580 n.3 (stating in dicta that the court
would
apply
the
extrinsic/intrinsic
test
to
a
claim
of
architectural copyright infringement).
III.
We turn now to HPA’s arguments on appeal.
the
HPA claims that
district
by
court
erred
in
three
respects:
considering
Appellees’ expert reports when resolving the motions for summary
judgment; by failing to credit HPA’s direct and circumstantial
evidence of copying; and by making various errors of copyright
law.
We consider each argument in turn.
A.
We begin with HPA’s argument that the district court erred
by considering Appellees’ expert reports, a claim we review for
abuse of discretion.
Cir.
2008)
See Nader v. Blair, 549 F.3d 953, 963 (4th
(reviewing
admissibility
of
affidavits
at
summary
judgment stage for abuse of discretion); cf. EEOC v. Freeman,
778 F.3d 463, 466 (4th Cir. 2015) (“We review a district court’s
decision to admit or to exclude expert evidence for an abuse of
discretion.”).
HPA
maintains
that,
because
these
reports
were
“inadmissible hearsay,” they were “not evidence upon which the
court could grant summary judgment.”
Appellees
respond
that
the
district
12
Appellant’s Br. at 25.
court
acted
within
its
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discretion
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when
considering
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the
expert
reports
because
those
“reports were both sworn to in declarations filed in response to
HPA’s
objection
and
the
content
of
the
reports
admissible through the expert’s testimony at trial.”
Br. at 28.
would
be
Appellees’
We agree with Appellees that the district court did
not err by considering the reports.
“The
court
and
the
parties
have
great
flexibility
with
regard to the evidence that may be used on a [summary judgment]
proceeding.”
10A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure § 2721 (3d ed. 1998).
The
court
may
consider
materials
that
would
themselves
be
admissible at trial, and the content or substance of otherwise
inadmissible
materials
where
the
“the
party
submitting
the
evidence show[s] that it will be possible to put the information
. . . into an admissible form.”
Moore’s
Federal
nonmovant
Practice
objects
to
§
the
11 James Wm. Moore et al.,
56.91[2]
court’s
(3d
ed.
2015).
consideration
of
If
the
“material
cited to support or dispute a fact,” Fed. R. Civ. P. 56(c)(2),
the
movant
has
the
burden
“to
show
that
the
material
is
admissible as presented or to explain the admissible form that
is anticipated,” Fed. R. Civ. P. 56 advisory committee’s note.
Here,
immaterial
the
admissibility
because
Appellees
that is anticipated.”
Id.
of
the
reports
“explain[ed]
the
themselves
admissible
is
form
Appellees submitted declarations
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made “under penalty of perjury” from the experts attesting that
they
“would
testify
respective]
(Carter);
to
the
report[s].”
accord
verification
or
J.A.
matters
J.A.
6426
6367
set
forth
(Greenstreet),
(Gresham).
reaffirmation
of
an
in
And
unsworn
[their
6392–93
“[s]ubsequent
expert’s
report,
either by affidavit or deposition, allows the court to consider
the unsworn expert’s report on a motion for summary judgment.”
DG & G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576
F.3d
820,
826
(8th
Cir.
2009)
(quoting
Maytag
Corp.
v.
Electrolux Home Prods., Inc., 448 F. Supp. 2d 1034, 1064 (N.D.
Iowa 2006)).
are
HPA does not claim that the experts’ declarations
deficient
inadmissible
or
at
that
trial.
the
We
experts’
therefore
testimony
find
no
would
error
in
be
the
district court’s consideration of the experts’ reports. 4
B.
We
turn
now
to
HPA’s
argument
that
the
district
court
failed to credit HPA’s direct and circumstantial evidence of
copying when granting summary judgment to Appellees.
4
As the
Our holding today does not establish any requirement for
the consideration of expert reports at summary judgment.
We
hold only that the district court acted within its discretion by
considering Appellees’ reports; we express no opinion as to
whether the experts’ declarations were necessary.
Cf. Deakins
v. Pack, 957 F. Supp. 2d 703, 752 (S.D.W. Va. 2013) (“The 2010
amendments
to
Rule
56(c)(2)
‘eliminated
the
unequivocal
requirement that documents submitted in support of a summary
judgement motion must be authenticated.’” (quoting Akers v. Beal
Bank, 845 F. Supp. 2d 238, 243 (D.D.C. 2012))).
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district court noted, summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“We review de novo a district court’s
award of summary judgment, viewing the facts in the light most
favorable
to
the
nonmoving
party.”
Boyer-Liberto
v.
Fontainebleau Corp., No. 13-1473, 2015 WL 2116849, at *8 (4th
Cir. May 7, 2015) (en banc).
1.
HPA first argues that the district court “ignored HPA’s
evidence” when it “stated that there was no direct evidence of
copying.”
Appellant’s
Br.
at
52.
HPA
submits
that
“the
development of Lessard’s sketches establishes direct evidence of
copying,” id. at 53, particularly when viewed in concert with
Figert’s deposition testimony.
Figert stated in relevant part:
“It appears that rather than going through the normal iterative
design process, that Lessard had a preconceived solution to the
design.”
This
Id. (quoting J.A. 5195).
evidence
is
not
direct
evidence
of
copying.
That
Lessard may have created its design with more speed and less
revision than
is
typical
in
the
industry
is
consistent
with
HPA’s theory that Lessard copied its design, but it does not
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itself establish copying.
5
Pg: 16 of 26
And Figert did not claim to have
personal knowledge that Lessard copied the Grant Park design.
In fact, Figert made clear in his deposition that he was not
prepared to state that Lessard copied the design.
Asked whether
it was his “opinion that Lessard copied the Grant Park design,”
Figert responded, “I was not asked to give an opinion about
whether or not there was a copy made. . . . I’ll pass on giving
a conclusion as to whether or not I think they copied it or
not.”
J.A. 1532.
Because HPA presented no direct evidence of
copying, the district court did not err by stating that “direct
evidence of copying does not exist” here.
Humphreys & Partners
Architects, L.P. v. Lessard Design, Inc., 43 F. Supp. 3d 644,
659 (E.D. Va. 2014).
2.
HPA next argues that the district court resolved disputed
issues of fact in Appellees’ favor and failed to credit HPA’s
evidence
when
considering
whether
5
the
two
designs
are
HPA
states
that
the
district
court
in
Brocade
Communications Systems, Inc. v. A10 Networks, Inc., 873 F. Supp.
2d 1192 (N.D. Cal. 2012), considered “almost identical facts” to
be “direct evidence of copying,” Appellant’s Br. at 53. But the
Brocade court found “the unusually fast pace of development of
[computer] code” to be “circumstantial evidence” supporting an
expert’s conclusion about copying.
Brocade Commc’ns Sys., 873
F. Supp. 2d at 1219–20 (emphasis added).
16
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extrinsically
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6
similar.
Pg: 17 of 26
Specifically,
HPA
claims
that
the
district court failed to credit its “evidence showing that the
overall
form
and
composition
Appellant’s Br. at 27.
than
does
HPA’s
of
the
works
was
similar.”
This argument presents a closer question
direct-evidence
claim.
We
address
it
by
outlining the parties’ respective burdens at summary judgment,
and
then
considering
whether
Appellees
and
HPA
met
those
burdens.
The
burden
party
by
moving
showing
that
for
summary
there
is
an
support the nonmoving party’s case.”
F.3d 179, 182 (4th Cir. 2002).
judgment
“discharges
absence
of
its
evidence
to
Kitchen v. Upshaw, 286
If the movant discharges this
burden, the nonmoving party must present “specific facts showing
that there is a genuine issue for trial.”
Blair v. Defender
Servs., Inc., 386 F.3d 623, 625 (4th Cir. 2004) (quoting White
v. Rockingham Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir.
1987)).
party
To create a genuine issue for trial, “the nonmoving
must
rely
on
more
than
conclusory
allegations,
mere
speculation, the building of one inference upon another, or the
mere existence of a scintilla of evidence.”
731 F.3d 303, 311 (4th Cir. 2013).
6
Dash v. Mayweather,
In other words, a factual
We assume for the purposes of this argument that HPA has
met its burden of showing that it owns a valid copyright in the
Grant Park design, and that Appellees had access to that design.
17
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dispute
is
Filed: 06/24/2015
genuine
only
Pg: 18 of 26
where
“the
non-movant’s
version
is
supported by sufficient evidence to permit a reasonable jury to
find” in its favor.
Stone v. Univ. of Md. Med. Sys. Corp., 855
F.2d 167, 175 (4th Cir. 1988).
Here, Appellees carried their initial burden of “‘showing’-that is, pointing out to the district court--that there is an
absence of evidence to support [HPA’s] case.”
Catrett, 477 U.S. 317, 325 (1986).
Celotex Corp. v.
They explained in their
motions that no evidence suggests that Two Park Crest and Grant
Park have a substantially similar overall form, or that the two
designs arrange spaces and elements in a substantially similar
manner.
And Appellees submitted expert reports explaining why
the two designs are dissimilar.
Cf. Universal Furniture Int’l,
Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 435 (4th Cir.
2010)
expert
(“The
extrinsic
testimony
may
inquiry
be
is
an
objective
relevant.”).
For
one
on
example,
which
Gresham
explained in his report that, while both designs offer direct
access to
units
elevators
to
designs.
from
the
J.A.
elevator
apartment
2326.
“At
lobbies,
doors”
Grant
is
the
“relation
different
Park,”
Gresham
in
of
the
the
two
wrote,
“the
elevators open into a discernible vestibule,” such that a person
standing in the lobby “can view six of the individual resident
doors (out of eleven, total, per floor[]).”
Crest,
however,
the
elevators
18
open
Id.
directly
“At Two Park
into
a
cross
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corridor,” and “[u]nit entries are tucked away in the legs of an
H-shaped
resident
corridor[.]”
Id.
In
the
Two
Park
Crest
design, “[o]nly two of seventeen resident doors are visible form
the elevator lobby.” 7
Id.
The burden then shifted to HPA to document a substantial
similarity between the protected elements of its design--i.e.,
Grant Park’s overall form and arrangement of the nine individual
features--and the Two Park Crest design.
HPA claims on appeal
that it carried this burden with the following evidence.
First, HPA relies on two declarations submitted by Mark E.
Humphreys, HPA’s founder and CEO.
The only statements in these
declarations relevant to substantial similarity are Humphreys’s
assertions that “[t]he Court can see that the two floor plans
are very similar,” and that “the Court can see that [the two
buildings] have a very similar appearance.”
statements
are
insufficient
to
create
a
material fact because they are conclusory.
at 311.
J.A. 5216.
genuine
These
dispute
of
See Dash, 731 F.3d
Humphreys identifies no specific, objective similarity
7
Appellees also presented evidence that, as compared to
Grant Park, Two Park Crest is eight stories shorter; has six
more units per floor; has one more elevator core, for service;
has a less rectangular footprint; has mechanical/electrical
rooms and trash chutes on the back (rather than front) side of
the building; has exit stairwells located opposite the elevator
lobbies and encased in separate enclosures; has an exterior with
wider and more widely spaced vertical indentations; has a façade
that is majority glass; and has fewer window elements and
walkable balconies.
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between
the
Filed: 06/24/2015
two
designs
to
Pg: 20 of 26
support
his
conclusion
that
the
buildings’ floorplans and appearances are similar.
Second, HPA identifies three declarations--from Robert Lux
and David A. Hunt, both of whom worked with HPA on the Grant
Park
project,
and
Walter
Hughes,
HPA’s
Director
of
Design--
describing the creation, originality, and benefits of the Grant
Park design.
for
trial
These declarations do not create a genuine dispute
because
none
contains
an
assertion
about
the
similarity between the Grant Park and Two Park Crest designs.
Finally, HPA relies on Figert’s declaration and deposition
testimony.
designs
Figert stated in his declaration that “[t]he two
have
an
extrinsic
similarity
in
that
the
ideas
and
expression of the ideas used in the projects have substantial
similarities[,] . . . includ[ing] such things as building floor
plan layout, exit circulation, building size, and composition of
the major elements that make up the exterior expression of the
designs.”
J.A. 5558.
He also listed nine features shared by
both designs--for example, the stairwells in both designs are
located
adjacent
to
elevator
lobbies--and
stated
that
these
characteristics are “examples of the arrangement and composition
of
spaces
and
elements
that
represent
substantially
features of Humphreys’ Grant Park design.”
similar
J.A. 5560.
And
Figert stated in his deposition that the “the overall expression
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of the idea of those [nine] elements is very similar in the two
projects.”
J.A. 5197.
Figert’s
declaration
and
deposition
testimony
are
insufficient to show that the designs are extrinsically similar.
Like Humphreys, Figert offered no specific similarity between
the designs’ overall form or arrangement of individual elements.
He
identified
nine
shared
features
and
stated
that
these
characteristics show that the two designs arrange and compose
both spaces and elements in a substantially similar manner.
But
the mere presence of these nine features in both buildings does
not
create
an
issue
for
trial
because,
as
HPA’s
counsel
confirmed at oral argument, HPA does not claim “any protectable
interest in any individual component” of the Grant Park design. 8
Oral Arg. 7:56–8:16; see also Ale House Mgmt., Inc. v. Raleigh
Ale House, Inc., 205 F.3d 137, 143 (4th Cir. 2000) (“To prove
copyright
owned
infringement,
copyrighted
the
material
protected elements of it.”).
plaintiff
and
that
must
the
establish
infringer
that
it
copied
And Figert did not explain how
specifically the two designs are similar in their floorplans,
exits, sizes, or arrangement of individual elements.
8
Figert’s
We do not imply that the outcome of this appeal would be
different if HPA had pressed this claim.
To the contrary, we
agree with the district court that the nine features, when
viewed in isolation, are not extrinsically similar in the two
designs.
See Humphreys & Partners Architects, L.P. v. Lessard
Design, Inc., 43 F. Supp. 3d 644, 669-75 (E.D. Va. 2014).
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conclusory assertions are, as a matter of law, insufficient to
show that any aspect of Two Park Crest is substantially similar
to a protected element of the Grant Park design.
See Dash, 731
F.3d at 311.
At bottom, HPA failed to carry its burden of identifying a
specific similarity between the Two Park Crest design and the
protected
elements
of
its
Grant
Park
design.
The
evidence,
viewed in the light most favorable to HPA, shows that the Two
Park Crest and Grant Park designs incorporate nine of the same
concepts.
But it does not establish that the two designs have a
similar overall form, or that the designs arrange or compose
elements and spaces in a similar manner.
Accordingly, because
HPA failed to present nonconclusory evidence that the designs
are
extrinsically
district
court
similar,
failed
to
we
reject
credit
HPA’s
its
claim
that
the
extrinsic-similarity
evidence.
C.
We conclude by addressing HPA’s claim that the district
court misapplied relevant copyright law in three respects.
First,
HPA
argues
that
the
district
court
erroneously
declined to consider whether the Two Park Crest design arranges
unprotected elements in a substantially similar manner to the
arrangement of those elements in the Grant Park design.
This
argument mischaracterizes the district court’s reasoning.
The
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district court began its analysis by considering whether any of
the nine features Figert identified were themselves protectable.
But the court did not stop there; it also considered whether,
“notwithstanding the fact that the nine features [HPA] relies on
do not warrant protection under the AWCPA, . . . the arrangement
of those features is substantially similar in the Grant Park and
Two Park Crest designs.”
Humphreys & Partners Architects, L.P.
v. Lessard Design, Inc., 43 F. Supp. 3d 644, 676 (E.D. Va.
2014).
And,
contrary
to
HPA’s
assertion
here,
the
district
court did not exclude any feature from this analysis.
Rather,
the court concluded that no reasonable jury could find the two
arrangements similar because, among other reasons, “the overall
footprints of the two designs are highly different,” and the two
designs “have a different shape, size, and exterior appearance.”
Id. at 677.
Second, HPA claims that the district court erred in various
respects by finding that the allegedly copied aspects of the
Grant Park design are not eligible for copyright protection.
We
need not reach this argument because the district court also
held that, even if those aspects were protected, Appellees are
not liable to HPA because they did not copy them.
This holding,
which we affirm today, is sufficient to support the judgment.
Finally,
intrinsic
HPA
(i.e.,
argues
that
subjective)
the
and
23
district
extrinsic
court
(i.e.,
conflated
objective)
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similarity when considering the two designs as a whole.
Cf.
Universal Furniture Int’l, Inc. v. Collezione Europa USA, Inc.,
618 F.3d 417, 435-36 (4th Cir. 2010) (distinguishing between the
intrinsic- and extrinsic-similarity analyses).
the
district
court
engaged
in
a
HPA claims that
subjective
analysis
when
discussing whether the overall arrangement of elements in the
two designs is extrinsically similar.
But the district court
correctly stated that “examining an ordinary person’s subjective
impressions of similarities between two works . . . is typically
the
province
subjective
Supp.
3d
of
finding
at
679.
the
jury,”
about
the
HPA’s
and
two
final
it
declined
designs.
argument
to
make
Humphreys,
fails
any
43
F.
because
it
identifies no subjective finding by the district court in its
extrinsic-similarity analysis, and our review reveals no such
finding.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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APPENDIX
Typical Grant Park Floorplan:
Typical Two Park Crest Floorplan:
25
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Grant Park Exterior:
Two Park Crest Exterior:
26
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