Savant Homes, Inc. v. Collins et al

Filing 48

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT: Defendants Douglas Collins and Douglas Consulting LLC's Motion for Summary Judgment (ECF No. 37 ) is GRANTED. Defendant Tammie Wagner and Ron Wagner's Motion for Summary Judgmen t (ECF No. 38 ) is GRANTED. The Court sua sponte GRANTS summary judgment in favor of Defendant Stewart King on all claims. Judgment shall enter in favor of Defendants on all claims. Defendants shall have their costs. By Judge William J. Martinez on 2/27/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2049-WJM-MEH
SAVANT HOMES, INC.,
Plaintiff,
v.
DOUGLAS W. COLLINS,
DOUGLAS CONSULTING, LLC, d/b/a COLLINS CUSTOM BUILDERS,
STEWART KING, d/b/a KODIAK CUSTOM DESIGN,
TAMMIE WAGNER, and
RON WAGNER,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Savant Homes, Inc. brings this action against Douglas Collins, Douglas
Consulting, LLC, d/b/a Collins Custom Builders (together “Collins”), Stewart King, d/b/a
Kodiak Custom Design, and Tammie and Ron Wagner (collectively “Defendants”)
arising out of the construction of two single-family homes in Larimer County, Colorado.
(Compl. (ECF No. 1).) Before the Court are Motions for Summary Judgment filed by
Collins and the Wagners (“Motions”). (ECF Nos. 37 & 38.) For the reasons set forth
below, the Motions are granted.
I. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem

Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute -as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Serv., 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. The
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. FACTUAL BACKGROUND
Plaintiff Savant Homes, Inc. is a custom home designer and builder, which holds
copyrights to architectural plans VA 1-833-039, entitled Anders Series Plans, and VA 1862-641, entitled Anders Series Plan - Constructed Design (together, the “Anders
Plan”). (ECF No. 1 at 2-3; ECF Nos. 37-13 & 37-14.) Plaintiff has designed and built
numerous homes based on the Anders Plan, including a model home at 8646
Blackwood Drive in Windsor, Colorado. (ECF No. 37-12.) Among other features, the
Anders Plan is a three-bedroom, two-bath ranch home that includes a master suite
(bedroom, bathroom, and walk-in closet) that is separated from two guest bedrooms by
the common living area, with a gourmet kitchen that is open to the dining room and a
great room. (ECF No. 40-10 at 8.) The laundry room is directly adjacent to the master
suite, and leads directly to a three-car garage, which has its doors at 90 degrees to the
2

street. (Id.)
In 2009, Ron and Tami Wagner (the “Wagners”) purchased land at 300 Madera
Way in Windsor, Colorado on which they planned to build a new custom home.
(Wagner Dep. (ECF Nos. 37-1 & 39-1) p. 12.) The Wagners contracted with Collins to
build the home at 300 Madera Way, and Collins in turn contracted with King to design
the home. (ECF No. 38-2; King Dep. (ECF No. 38-3) pp. 48-49.)
In June 2009, the Wagners visited Plaintiff’s model home at 8646 Blackwood
Drive with their realtor. (Wagner Dep. at 18-20.) Mrs. Wagner took with her one of
Plaintiff’s brochures, which included a simplified version of the model home’s floor plan
that is based on the Anders Plan. (Id.; ECF No. 37-18 & 37-19.) Two months later, the
Wagners returned with their realtor to again tour the model home; King and Collins
accompanied them on this visit. (Id. at 17-18; Collins Dep. (ECF No. 37-8) p. 63; ECF
No. 37-12.)
Construction began on the 300 Madera Way home in October 2009, and was
completed in May 2010. (Wagner Dep. at 30.) Due to a change in their relationship,
the Wagners later purchased land at 8466 Blackwood Drive, and contracted with Collins
and King to design and build a second home on this lot. (Id. at 37-39.) Construction on
the 8466 Blackwood home began in October 2011, and was completed in October
2012. (Id.) The Court will refer to the 300 Madera Way home and the 8466 Blackwood
Drive home as the “Accused Homes”.
Among other features, the Accused Homes are both three-bedroom, two-bath
homes with a master suite (bedroom, bathroom, walk-in closet) that is separated from
two guest bedrooms by the common living area, which includes a gourmet kitchen that
3

is open to the dining room and a great room. (ECF No. 38-3.) The laundry room in the
Accused Homes can be accessed directly from the master suite, and leads into a threecar garage that has its doors at a 90 degree angle to the street. (Id.)
At least one consumer has entered Plaintiff’s model home and been confused as
to whether it was built by the same party as the Wagners’ home at 8466 Blackwood
Drive. (Strope Dep. (ECF No. 40-9) p. 82.) A realtor has also inquired as to whether
Plaintiff built the 8466 Blackwood home. (Id. at 15.)
III. ANALYSIS
On the facts set forth above, Plaintiff brings claims against all Defendants for
copyright infringement, contributory infringement, trade dress, intentional interference
with business advantage, civil theft, deceptive trade practices, and civil conspiracy.
(Compl. pp. 5-10.) Plaintiff seeks a declaratory judgment enjoining Defendants from
further use of its copyrighted work, as well as monetary damages. (Id. pp. 9-10.)
Defendants move for summary judgment on all claims. (ECF Nos. 37 & 38.) The Court
will discuss each in turn below.
A.

Copyright Infringement
Copyright protection extends to “original works of authorship fixed in any tangible

medium of expression . . . .” Copyright Act, 17 U.S.C. §§ 101-122 (2011). The
Copyright Act was amended in 1990 to include the Architectural Works Copyright
Protection Act (“AWCPA”), which extends protection to any “architectural work,” defined
as “the design of a building as embodied in any tangible medium of expression,
including a building, architectural plans, or drawings.” 17 U.S.C. § 101; 17 U.S.C.
§ 102(a)(8). An “architectural work” includes “the overall form as well as the
4

arrangement and composition of spaces and elements in the design, but does not
include individual standard features.” 17 U.S.C. § 101.
Plaintiff alleges that the Accused Homes infringe on its copyrighted Anders Plan.
(Compl. p. 5.) “There are two elements to a copyright infringement claim: (1)
ownership of a valid copyright, and (2) copying of constituent elements of the work that
are original.” La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir.
2009). Plaintiff bears the burden of proof on both elements. Palladium Music, Inc. v.
EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005).
The record shows that Plaintiff’s Anders Series Plan was registered with the
United States Copyright Office on June 4, 2012, with a listing date of first publication on
May 31, 2007. (ECF No. 37-13.) By presenting a registration certificate, a party
establishes the prima facie validity of the copyright, and the burden to dispute the
validity of the copyright then shifts to the party challenging it. Harris Mkt. Res. v.
Marshall Marketing & Comm’ns, Inc., 948 F.2d 1518, 1526 (10th Cir. 1991).
Defendants do not seriously challenge the validity of this copyright, and the Court finds
that Plaintiff has satisfied the first element of its copyright infringement claim.
“A plaintiff can establish that the defendant copied his program either through the
presentation of direct evidence, or through indirect evidence that shows (1) that the
defendant had access to the copyrighted program, and (2) that there are probative
similarities between the copyrighted material and the allegedly copied material.” Gates
Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 832 (10th Cir. 1993). Because
direct proof of copying is rare, plaintiffs typically rely on the indirect method of proof. Id.
Plaintiff here asserts indirect evidence of copying, alleging that Defendants had
5

access to its Anders Plan, and that the Accused Homes are substantially similar to the
copyrighted portions of the Anders Plan. (ECF Nos. 39 & 40.) Defendants contend that
Plaintiff has presented insufficient evidence of a material dispute as to both prongs.
(ECF Nos. 37 & 38.)
1.

Access to Copyrighted Work

To demonstrate access, a plaintiff must show that the defendants had a
reasonable opportunity to view or to copy his work. A mere possibility, speculation or
conjecture about access does not satisfy this standard. See 3 Nimmer on Copyright
Sec. 13.02[A] at 13–18–24.
To meet this burden, Plaintiff has introduced evidence showing that the Wagners
visited a model home based on the Anders Plan in June 2009. (Wagner Dep. at 24.)
Ms. Wagner picked up a copy of Plaintiff’s brochure, and retained it. (Id. at 40.) On
August 9, 2009, Ms. Wagner again toured the model home, and this time brought Mr.
Collins and Mr. King with her. (Wager Dep. at 24.) Within a week of this visit, Mr. King
had finalized plans for the 300 Madera home. (King Dep. at 55.) In addition to these
visits, Plaintiff notes that Defendants had access to a simplified version of its Anders
Plan through online marketing tools. (ECF No. 37 at 6.)
The Court finds that this evidence is sufficient to permit a reasonable juror to
conclude that Defendants had access to the copyrighted work before the Accused
Homes were fully designed and constructed. See Charles W. Ross Builder, Inc. v.
Olsen Fine Home Bldg., LLC, 977 F. Supp. 2d 567, 583 (E.D. Va. 2013) (finding plaintiff
had met summary judgment burden of showing access to copyrighted work by showing
that defendant had toured model home, picked up a brochure, and received a portfolio
6

showing drawings of the floor plans); Dream Custom Homes, Inc. v. Modern Day
Constr., Inc., 773 F. Supp. 2d 1288, 1303 (M.D. Fla. 2011) (denying summary judgment
because plaintiff had shown that defendants toured a model home and viewed plans
online). Accordingly, the Court finds that Plaintiff has discharged its summary judgment
burden as to this prong.
2.

Substantial Similarity Between Copyrighted Portion of Work

To survive summary judgment, Plaintiff must also show a genuine dispute of
material fact as to whether there is substantial similarity between the protected aspects
of the Anders Plan and the Accused Homes. “[T]he mere fact that a work is copyrighted
does not mean that every element of the work may be protected.” Feist Publ’ns, Inc. v.
Rural Tele. Serv. Co., 499 U.S. 340, 348 (1991). By extending the Copyright Act’s
protections to the “arrangement and composition of spaces and elements” through the
AWCPA, Congress sought to recognize that “creativity in architecture frequently takes
the form of a selection, coordination, or arrangement of unprotectible elements into an
original, protectible whole.” H.R. Rep. No. 101-735 (1990). However, the AWCPA does
not protect “individual standard features”, “standard configurations of space”, or design
elements that are functionally required. Id. “Thus, it appears that Congress sought, in
adopting the AWCPA, to protect only those ‘features [of architectural works] that reflect
the architect’s creativity,’ while excluding from the Copyright Act any unoriginal features,
the protection of which ‘would impede, rather than promote, the progress of architectural
innovation.’” Intervest Constr., Inc. v. Caterbury Estate Homes, Inc., 554 F.3d 914, 919
(11th Cir. 2008) (quoting H.R. Rep. No. 101-735 (1990)).
To distinguish between the protected and non-protected aspects of a copyrighted
7

work, the Tenth Circuit has adopted the “abstraction-filtration-comparisons” test:
First, in order to provide a framework for analysis, . . . a court
should dissect the [work] according to its varying levels of
generality as provided in the abstractions test. Second,
poised with this framework, the court should examine each
level of abstraction in order to filter out those elements of the
[work] which are unprotectable. Filtration should eliminate
from comparison the unprotectable elements of ideas,
processes, facts, public domain information, merger
material, scenes a faire material, and other unprotectable
elements suggested by the particular facts of the program
under examination. Third, the court should then compare
the remaining protectable elements with the allegedly
infringing [work] to determine whether the defendants have
misappropriated substantial elements of the plaintiff’s [work].
Gates Rubber, 9 F.3d at 834.
Plaintiff attempts to meet this burden by introducing an expert report prepared by
Justin Larsen, in which he opines that the overall layout and flow of the Accused Homes
is substantially similar to the Anders Plan. (ECF No. 40-10.) Larsen states that “the
houses overall share a very similar aesthetic and layout as seen from the exterior with
many elements being similarly located including the garage, living areas, windows, and
entryway. Any differences are mostly minor cosmetic changes between the two.” (Id. at
2.)
The Court finds that this expert report does not meet Plaintiff’s burden with
regard to the second prong of the copyright infringement analysis. Further, in its
briefing and by the evidence it has presented, Plaintiff has completely ignored the
“abstraction-filtration-comparisons” standard. In its summary judgment briefing,
Plaintiff’s only argument regarding the protected aspects of the Anders Plan is that it
has “identified several unique design and construction features that give Savant homes
8

their distinguishing look and feel”. (ECF No. 40 at 16.) Plaintiff then cites its
interrogatory responses and Alan Strope’s deposition, both of which purport to identify
elements of the Anders Plan that Plaintiff believes are “original or unique.” (Id. (citing
Strope Dep. at 76-77 & ECF No. 40-11).) Plaintiff fails to conduct any analysis of how
these elements were designed, or explain how they are original or unique to the Anders
Plan. Larsen’s report makes no attempt to differentiate between the protected and
unprotected aspects of the Anders Plan, instead opining that the overall layout and flow
of the homes (which consists primarily of unprotected elements) is so substantially
similar that they must have been copied. (ECF No. 40 at 16; 40-10.) This briefing and
evidence is plainly insufficient to meet Plaintiff’s summary judgment burden. See Gates
Rubber, 9 F.3d at 833 (“The court’s inquiry does not end with a finding that the
defendant copied portions of the plaintiff’s program. Liability for copyright infringement
will only attach where protected elements of a copyrighted work are copied.”).
Contrary to Plaintiff’s approach, Defendants have produced an expert report
prepared by Rob Fisher, which specifically analyzes whether each aspect of the Anders
Plan is sufficiently unique so as to afford it protected status under the Copyright Act.
(ECF No. 38-10.) Mr. Fisher relies on his experience as an architect, compares the
Anders Plan to four house plans that are publicly available online, and opines that the
only protectable element of the Anders Plan is “[t]he wrought iron bars over the 3
[square] center windows at the front of the garage.” (Id. at 9.) Fisher’s report concludes
that all other aspects of the Anders Plan are not protected because they are standard or
stock elements, are the product of functional concerns, or are the product of common
market forces. (Id. at 6-8.)
9

Notably, the Accused Homes both have only one rectangular window on the front
of the garage, and neither has wrought iron bars over that window. (ECF No. 38 at 8.)
Thus, no reasonable juror could possibly conclude that the Accused Homes are
substantially similar to the aspects of the Anders Plan which Mr. Fisher has identified as
protected. As Plaintiff has offered no specific evidence contrary to Mr. Fisher’s report,
and has presented no evidence showing that other aspects of the Anders Plan are so
unique as to be protected under the copyright laws, the Court could easily end its
analysis here and grant summary judgment in favor of Defendant on the copyright
infringement claim.
However, while Plaintiff has not submitted an expert report on this issue or
otherwise analyzed the issue in its summary judgment briefing, Plaintiff has identified a
number of characteristics of the Anders Plan that it considers “original or unique”. (ECF
No. 40-11 at 7-8.) In the interest of viewing all evidence in the light most favorable to
Plaintiff, and drawing all reasonable inferences in favor of Plaintiff, the Court will
undertake an analysis of whether any of these characteristics are, in fact, protected by
the Copyright Act.
In its interrogatory responses, Plaintiff stated that the following aspects of the
Anders Plan are “original or unique”:
The Anders Plan was designed as an open floor plan with
the master bedroom on one side of the house and the other
2 bedrooms on the opposite side. The flexibility with the
Anders Plan to create flex space within this plan and appeal
to a buyer that would like that flexibility. The home was
intended for the “empty nesters” and “baby boomers”. The
inviting entry into the open space took away that closed-in
feeling that many homes have. Immediately, within the entry
is the large stairway to the basement with a large window
10

that allows natural light to not only the stairs, but to the great
room beyond. The large master suite with the large master
bath creating a retreat in these areas. Specifically, the large
bath tub area with the fireplace at the foot of the tub and
visible from the bed on the opposite side of the wall. The
reasoning is for the enjoyment from both sides of the
fireplace in this private space. Creating the walk-in shower
without a door to the shower offers a space to freely live
without being enclosed. Having an oversized walk-in closet
in the feature that offers lots of light in the closet with
windows on an exterior wall and plenty of space to layout
and organize the closet. Access directly into the laundry
room is a feature that is quite unique and has not been seen
or built by any of Savant’s owners or employees. This
feature was incorporated because of the closeness to the
laundry room and the closet where the laundry is usually
generated. The closeness of the laundry to the garage was
also part of the specific design allowing easy access to the
master bedroom without walking through the entire home.
The Anders Plan offers a side load garage giving the curb
appeal and the immediate access into the kitchen without
walking throughout the house with day-to-day items, such as
groceries. Creation of the gourmet kitchen that is open to
the dining area, and the entertainment area (the Great
Room), all within the same space.
(ECF No. 40-11 at 7-8.) In Mr. Strope’s deposition, the following exchange occurred:
Q: What do you believe are the distinctive source
[sic] identifying the elements of the Anders plan?
A. The Anders plan has multiple distinctive elements
that is common to a Savant home, you know, starting off with
the garage situation of how it is tied into the side load garage
onto the house to be able to fit onto most standard lots. The
uniqueness from the front elevation of this home with the hip
roofs that we provided onto it with the detail on how we did
the stucco and the stone as well as the metal across the
front of the windows, and those are all elements that tie this
style of home of what we’ve designed to fit from the outside
as well as onto the inside.
In particular, on the inside of the home, the layout was
specifically designed by my wife and I to have a home that
we can provide to our clients that has the openness feeling
to it, has a separation between the master and the other
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bedrooms, was designed for an empty nester and has the
features of a master suite that is almost like a master retreat,
having the large tub with the see-through fireplace as an
option that goes directly into the master so it’s usable in both
spaces, having the walk-in shower that is a distinct feature of
allowing – having dual shower heads within the shower but
having this open feeling of openness into this large
bathroom.
The other distinct feature that I think that we’ve put in
is the walk-in closet and the large walk-in closet, the size of
the closet, the direct connection to the laundry room, where
the majority of this laundry is created is off of the master
because it was somewhat designed as an empty nester’s
home.
The wide staircases coming to the basement is
another feature that we have put into this home to – that it’s
not a straight run, that it has a good curvature, it’s very open,
they are very wide, it’s a very comfortable feel into the
basement. And the home is -- was designed to be inviting
people to come into the front door. It’s inviting, this
openness to it.
(Strope Dep. at 76-77.)
From this evidence, the Court has attempted to apply the “abstraction-filtrationcomparisons” test, and dissect the Anders Plan to filter out the protectable elements.
Gates Rubber, 9 F.3d at 834. In doing so, the Court has considered the evidence in the
record regarding features of homes that are common, dictated by market forces, or
purely functional. (See ECF No. 38-10.) The Court has also considered the design
elements of the four floor plans analyzed by Defendants’ expert. (Id. at 9-11.) From
this evidence, the Court finds that the following features are not protected, as they are
common and functional rather than unique or original: the open floor plan with master
on one side of house and two bedrooms on the opposite side; the “flex space”; the
“inviting entry into the open space”; the large master suite with large master bath
intended to “create a retreat”; the oversized walk-in closet; the proximity of the laundry
12

room to the master suite; the side load garage with immediate access to the kitchen;
and the gourmet kitchen that is open to the dining room and great room. See 37 C.F.R.
§ 202.11 (stating that “standard configurations of spaces, and individual standard
features such as windows, doors, and other staple building components” cannot be
copyrighted); Logan Developers, Inc. v. Heritage Bldgs., Inc., 2014 WL 2547085, at *8
(E.D.N.C. June 5, 2014) (finding that the common features, including arrangement of
the bedrooms, closets, and open spaces, were not protected by copyright law); Jeff
Benton Homes v. Ala. Heritage Homes, Inc., 929 F. Supp. 2d 1231, 1254 (N.D. Ala.
2013) (denying copyright protection to floor plan with a master separated from two other
bedrooms by the kitchen and living areas because those features are “too common”).
Because all of the features described above are not protectable under copyright
laws, the court disregards them for purposes of the substantial similarity analysis.
Universal Furniture, Int’l, Inc. v. Collezione Europa USA. Inc., 618 F.3d 417, 436 (4th
Cir. 2010). Thus, the remaining features that Plaintiff has identified as original or unique
are: the large stairway to the basement with large entry to allow natural light onto the
stairs and the great room “very open, very wide”; the arrangement of the master bath,
including a fireplace at the foot of the bath tub that is visible from bed on opposite wall;
metal across the three front windows of the garage; a large walk in shower; and the Tshaped oversized master closet with exterior windows to allow in lots of light. (See ECF
Strope Dep. at 76-77; ECF No. 40-11 at 7-8.) Though the Court questions the
uniqueness of some of these characteristics, the Court will consider these aspects of
the Anders Plan to be protected by copyright law for purposes of summary judgment.
The Court has compared the protected elements of the Anders Plan with the
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Accused Homes and concludes that no reasonable juror could find that there is
substantial similarity. Both of the Accused Homes have a narrower stairway leading to
the basement that is in the Anders Plan. (ECF No. 40-10 at 8-9.) The master closets in
the Accused Homes are also smaller and shaped differently than the Anders Plan.
(ECF No. 38-3.) As the wide open nature of the stairway and the shape and size of the
closet are what makes these elements so unique as to be eligible for copyright
protection, these differences are notable.
Even more extreme differences are apparent in the master bathrooms. The
Anders Plan has an angled bathtub next to a single sink with a second sink on the
opposite wall, a fireplace next to the bathtub visible from the bedroom, a water closet
next to one of the sinks, and no linen closet. The 300 Madera home has a straight
bathtub next to a shower with two sinks on the opposite wall, a see-through fireplace
next to the bathtub, a water closet tucked behind the two sinks, and a linen closet. The
8466 Blackwood home has no bathtub, no fireplace, a water closet separate from the
sinks and shower, and a linen closet. (ECF No. 38 at 9; ECF No. 38-3.) Aside from the
shared element of two sinks in each bathroom, there is little overlap in these designs.
Finally, as the Court has previously noted, the windows on the garage of the
Accused Homes are significantly different from the Anders Plan. The Anders Plan has
three windows across the front of the garage, each covered by metal bars. The
Accused Homes have one window each, and no metal bars. (ECF No. 38 at 8; ECF
No. 38-3.)
The Court recognizes that substantial similarity is typically a question of fact that
should be resolved by the jury. See Jacobsen v. Desert Book Co., 287 F.3d 936, 943
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(10th Cir. 2002) (holding that whether works are substantially similar is a “classic jury
question”); Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 142 (5th Cir. 2004).
However, where no reasonable juror could find that there is substantial similarity
between the protectable elements of a copyrighted work and the alleged infringer,
summary judgment is appropriate.1 See Blehm v. Jacobs, 702 F.3d 1193, 1208 (10th
Cir. 2012) (finding that images are “so dissimilar as to protectable expression that the
substantial similarity question need not go to a jury.”); Johnson v. Gordon, 409 F.3d 12,
18 (1st Cir. 2005) (“Summary judgment on [substantial similarity] is appropriate only
when a rational factfinder, correctly applying the pertinent legal standards, would be
compelled to conclude that no substantial similarity exists between the copyrighted work
and the allegedly infringing work.”). The Court does not take lightly the decision to grant
summary judgment on such a fact-driven question. However, when the Court compares
the protected elements of the Anders Plan to the Accused Homes, it has little difficulty
concluding that no reasonable juror could find that they are substantially similar.
Accordingly, the Court finds that summary judgment is appropriate on Plaintiff’s
copyright infringement claim.

1

Notably, at least one court has held that substantial similarity with regard to
architectural plans is more properly judged by a court than a jury. See Intervest Constr., 554
F.3d at 920 (“Because a judge will more readily understand that all copying is not infringement,
particularly in the context of works that are compilations, the ‘substantial-similarity’ test is more
often correctly administered by a judge rather than a jury—even one provided proper instruction.
The reason for this is plain—the ability to separate protectable expression from non-protectable
expression is, in reality, a question of law or, at the very least, a mixed question of law and fact.
It is difficult for a juror, even properly instructed, to conclude, after looking at two works, that
there is no infringement where, say, 90% of one is a copy of the other, but only 15% of the work
is protectable expression that has not been copied.”).

15

B.

Contributory Infringement and Civil Conspiracy
Defendants move for summary judgment on Plaintiff’s claims for contributory

infringement and civil conspiracy on the grounds that both claims are derivative of a
finding of copyright infringement. (ECF Nos. 37 & 38.) Though it argues that summary
judgment is not appropriate because there is a genuine dispute of material fact as to the
copyright infringement claim, Plaintiff agrees that these claims are derivative. (ECF
Nos. 39 & 40.)
Having granted summary judgment on Plaintiff’s copyright infringement claim, the
Court also concludes that summary judgment is appropriate on Plaintiff’s claims for
contributory infringement and civil conspiracy.
C.

Trade Dress Infringement
“The trade dress of a product is its overall image and appearance, and may

include features such as size, shape, color or color combinations, texture, graphics, and
even particular sales techniques.” Sally Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d
964, 977 (10th Cir. 2002). Protection may extend to a single feature or a combination
of features in a trade dress. See Vornado Air Circulation Sys., Inc. v. Duracraft Corp.,
58 F.3d 1498, 1502 (10th Cir. 1995). In order to demonstrate trade dress infringement,
the plaintiff must demonstrate: (1) that its trade dress is inherently distinctive or has
become distinctive through secondary meaning; and (2) likelihood of confusion. See id.
at 1502-03. In addition, the party asserting trade dress infringement bears the burden
of demonstrating that the trade dress is not functional. 15 U.S.C. § 1125(a)(3); WalMart Stores, Inc. v. Samara Bros., 529 U.S. 205, 210 (2000).
Defendants contend that Plaintiff has failed to identify the features of the Anders
16

Plan that qualify as trade dress, has failed to show that these elements are distinctive,
and has failed to establish likelihood of confusion. (ECF No. 37 at 19-20.)
1.

Inherently Distinctive

The Tenth Circuit has held:
A trade dress is inherently distinctive if its intrinsic nature
serves to identify a particular source. Such trade dresses
almost automatically tell a customer that they refer to a
brand and immediately signal a brand or a product source.
Like trademarks, the inherent distinctiveness of a trade dress
is categorized along the generic-descriptivesuggestive-arbitrary-fanciful spectrum. A trade dress which
is not inherently distinctive, however, may acquire
distinctiveness through secondary meaning. In other words,
over time customers may associate the primary significance
of a dress feature with the source of the product rather than
the product itself. When a trade dress has become
distinctive of a product’s source, courts have permitted
protection under § 43(a) of the Lanham Act.
Sally Beauty, 304 F.3d at 977 (internal quotations and citations omitted).
In attempting to show that aspects of its Anders Plan are inherently distinctive,
Plaintiff relies on the same characteristics that it identified as “unique or original” for
purposes of the copyright analysis, such as the “flex space”, the “inviting entry into the
open space”, the “large master suite and master bath creating a retreat”, and the
“oversized walk-in closet”. (ECF No. 40 at 8-9, 20-21.) However, Plaintiff utterly fails to
analyze how any of these characteristics are inherently distinctive. As discussed above,
the majority of these elements are common features in modern homes or are functional,
neither of which qualify for trade dress protection. See 15 U.S.C. § 1125(a)(3); Samara
Bros., 529 U.S. at 210. Plaintiff also fails to cite any evidence showing that the Anders
Plan has acquired distinctiveness through secondary meaning. Thus, the Court finds
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that Plaintiff has failed to meet its summary judgment burden with regard to the
distinctiveness of its trade dress.
2.

Likelihood of Confusion

The Court also finds that there is no genuine dispute of fact as to likelihood of
confusion. In considering whether a party has shown likelihood of confusion, the Court
must consider the following factors: (1) intent to copy; (2) similarity of products and
manner of marketing; (3) degree of consumer care; (4) degree of similarity between the
parties’ trade dress; (5) strength of the plaintiff’s trade dress; and (6) evidence of actual
confusion. Sally Beauty, 304 F.3d at 979.
With regard to the first factor, there is conflicting evidence regarding Defendants’
intent to copy. The Wagners toured the model home along with their builder and
architect, which shows access and could permit a jury to infer intent. However, the
Wagners have testified that they intended to base the design on the Accused Homes on
a home they had previously owned in Arizona. Viewing the evidence in Plaintiff’s favor,
the Court finds that this factor weighs slightly in favor of finding a likelihood of confusion.
With regard to the second factor, as discussed above, the Court concludes that
there is not substantial similarity between the distinctive aspects of the Anders Plan and
the Accused Homes for purposes of copyright infringement. The same analysis applies
here. See Sally Beauty, 304 F.3d at 979 (applying copyright analysis to trade dress
infringment). Additionally, both of the Accused Homes are privately owned by the
Wagners; neither has ever been put on the market to be sold. As such, the Accused
Homes have never been marketed, and there can be no overlap or similarity between
methods of marketing. Thus, the second and fourth factors weigh heavily against a
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finding of likelihood of confusion.
With regard to the third factor, “[i]t is generally assumed that consumers with
expertise or who are buying expensive products or services exercise a greater degree
of care when doing so and are thus less easily confused.” Edge Wireless, LLC v. U.S.
Cellular Corp., 312 F. Supp. 2d 1325, 1333 (D. Or. 2003) (citing Brookfield Comm’ns,
Inc. v. W. Coast Enter. Corp., 174 F.3d 1036, 1060 (9th Cir. 1999) (“What is expected of
this reasonably prudent consumer depends on the circumstances. We expect him to be
more discerning—and less easily confused—when he is purchasing expensive items”)).
A home is likely one of the most expensive purchases a consumer will make in his or
her lifetime. As such, consumers are far less likely to be confused by similarity between
homes than they would be ordinary consumer products. The Court concludes that this
factor also weighs heavily against a finding that there is a likelihood of confusion.
The strength of trade dress is tied to its distinctive nature. See Sally Beauty, 304
F.3d at 979. The Court has already found that Plaintiff has failed to show that its trade
dress is distinctive and, therefore, any protection for such trade dress is weak. Id. This
factor weighs against a finding of likelihood of confusion.
Finally, the only evidence of actual confusion that Plaintiff has presented is a
statement made by one buyer who visited Plaintiff’s model home, in which that
consumer indicated that she thought the 8466 Blackwood home was being built by
Plaintiff. (Strope Dep. at 82.) Also, a realtor inquired whether Plaintiff was building the
home at 8466 Blackwood. (Id. at 15.) There is no evidence that anyone ever confused
the 300 Madera home with Plaintiff’s Anders Plan. The Court finds that these examples
are such de minimis evidence of consumer confusion that, to the extent this factor
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weighs in Plaintiff’s favor, such weight is minimal. See Sally Beauty, 304 F.3d at 974
(“Evidence of actual confusion does not create a genuine issue of fact regarding
likelihood of confusion if it is de minimis.”).
Having considered all six factors, the Court finds that Plaintiff has failed to show
a genuine dispute of material fact as to whether there is a likelihood of confusion
between its trade dress and the Accused Homes. Accordingly, summary judgment on
Plaintiff’s trade dress claim is appropriate.
D.

Remaining Claims
Plaintiff also brings claims for intentional interference with business advantage,

civil theft, and deceptive trade practices. (ECF No. 1 at 8-9.) Defendants move for
summary judgment on each of these claims. (ECF Nos. 37 & 38.) In its responses to
the Motions, Plaintiff does not address these claims at all. (ECF Nos. 39 & 40.) Despite
Plaintiff’s failure to oppose the Motion, the Court cannot grant the Motion without first
determining whether Defendant has met its burden of production. See Reed v. Bennett,
312 F.3d 1190, 1994-95 (10th Cir. 2002).
To succeed on a claim for intentional interference with business advantage, a
plaintiff must show that there is a reasonable probability that a contract would have
resulted but for the defendant’s conduct. Klein v. Grynberg, 44 F.3d 1497, 1506 (10th
Cir. 1997). Defendants have pointed to testimony from Mr. Strope that he cannot name
a single individual who was in the process of contracting with Plaintiff but declined to do
so because of some action taken by Defendants. (ECF No. 37 at 23.) Plaintiff offers no
evidence in rebuttal. As such, the Court finds that Plaintiff has failed to show a genuine
dispute of material fact as to its claim for intentional interference with business
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advantage, and summary judgment is appropriate on this claim.
A plaintiff may sustain a claim for civil theft if he shows that the defendant
knowingly obtained control over the plaintiff’s property without authorization and with the
specific intent to deprive the plaintiff of the property. Itin v. Ungar, 17 P.3d 129, 134
(Colo. 2000). Defendant contends that Plaintiff has failed to show that it has been
deprived of the Anders Plan, and Plaintiff offers no contrary evidence. (ECF No. 37 at
24.) In fact, the record shows that Plaintiff continues to build homes based on the
Anders Plan. (ECF No. 37-11 at 17.) As such, the Court finds that summary judgment
is appropriate on the civil theft claim.
To prove a private cause of action for a deceptive trade practice, a plaintiff must
show: (1) that the defendant engaged in an unfair or deceptive trade practice; (2) that
the challenged practice occurred in the course of defendant’s business, vocation, or
occupation; (3) that it significantly impacts the public as actual or potential consumers of
the defendant’s goods, services, or property; (4) that the plaintiff suffered injury in fact to
a legally protected interest; and (5) that the challenged practice caused the plaintiff's
injury. Hall v. Walter, 969 P.2d 224, 235 (Colo. 1998). Defendant alleges that Plaintiff
has failed to show that it made a false representation sufficient to constitute a deceptive
trade practice because Plaintiff cannot show any misstatement by Defendants that
“induce[d] a party to act, refrain from acting, or have the capacity or tendency to attract
customers.” (ECF No. 37 at 25 (quoting HealthONE of Denver, Inc. v. United Health
Grp., 805 F. Supp. 2d 1115, 1120 (D. Colo. 2011).) Plaintiff offers no contrary
evidence. As such, the Court finds that Plaintiff has failed to show a genuine dispute of
fact as to an essential element of its deceptive trade practice claim, and that summary
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judgment is appropriate.
Finally, Defendants move for summary judgment on Plaintiff’s “claim” for a
declaratory judgment. As a declaratory judgment is a form of relief rather than an
independent cause of action, the Court finds that summary judgment on any such
“claim” in the Complaint is appropriate. See Aetna Life Ins. Co. v. Haworth, 300 U.S.
227 (1937) (holding the Declaratory Judgment Act does not create an independent
cause of action but only affords a form of relief previously unavailable).
Accordingly, the Court grants Defendants’ Motions in so far as they seek
summary judgment on Plaintiff’s claims for intentional interference with business
advantage, civil theft, deceptive trade practices, and declaratory judgment.
E.

Claims Against Defendant King
Plaintiff brings each of its claims against all Defendants, including Stewart King

d/b/a Kodiak Customer Design. (ECF No. 1.) Mr. King has appeared in this case pro
se, has filed an Answer on his own behalf, responded to Plaintiff’s discovery requests,
and has had his deposition taken by Plaintiff. (ECF Nos. 20, 39-7, 39-8, 40-7, 40-8.)
Mr. King has not, however, filed a motion for summary judgment.
Although “the practice of granting summary judgment sua sponte is not favored,”
Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1132 (10th Cir. 2003), a sua sponte
order of summary judgment may be appropriate if “the losing party was on notice that
she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S.
317, 326 (1986). In this case, the summary judgment motions filed by Collins and the
Wagners alerted Plaintiff to the need to come forward with all of its evidence on all
claims brought in the Complaint. The Court’s above analysis of whether summary
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judgment was appropriate on each of Plaintiff’s claims was not affected by the role each
Defendant played in the design and construction of the Accused Homes. That is, there
is no reason to believe that Plaintiff could show a genuine dispute of fact as to its claims
against King, the architect of the Accused Homes, when it could not do so as to its
claims against the owners and builder of the Homes.
Accordingly, the Court sua sponte grants summary judgment in favor of
Defendant King on all claims.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendants Douglas Collins and Douglas Consulting, LLC’s Motion for Summary
Judgment (ECF No. 37) is GRANTED;

2.

Defendant Tammie Wagner and Ron Wagner’s Motion for Summary Judgment
(ECF No. 38) is GRANTED;

3.

The Court sua sponte GRANTS summary judgment in favor of Defendant
Stewart King on all claims;

4.

Judgment shall enter in favor of Defendants on all claims. Defendants shall have
their costs.
Dated this 27th day of February, 2015.
BY THE COURT:

William J. Martínez
United States District Judge
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