Anand Vihar LLC v. The Evans Group Incorporated
Filing
64
ORDER denying 39 Motion for Partial Summary Judgment; denying 22 Motion for summary judgment. Signed by Judge James D. Whittemore on 7/17/2017. (SMA)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANAND VIHAR LLC,
Plaintiff/Counter Defendant,
v.
Case No: 8:16-cv-841-T-27TBM
THE EVANS GROUP INCORPORATED,
Defendant/Counter Claimant.
___________________________________/
ORDER
BEFORE THE COURT are Plaintiff’s Motion for Summary Judgment (Dkt. 22), which
Defendant opposes (Dkt. 32), and Defendant’s Motion for Partial Summary Judgment (Dkt. 39),
which Plaintiff opposes (Dkt. 51). Anand Vihar LLC, a real estate developer, brought this single
count declaratory judgment action in Pasco County Circuit Court to determine its rights to
copyrighted conceptual site drawings prepared by The Evans Group Incorporated, an architecture
and design firm.1 Evans Group removed the action to this Court and asserted counterclaims for
copyright infringement and breach of contract. Evans Group moves for summary judgment on its
copyright counterclaim. Anand moves for summary judgment on its contention that it has an
unrestricted license to use the copyrighted drawings for its construction project. Upon consideration,
the Motions are DENIED.
Material Undisputed Facts
On September 9, 2015, the parties entered into a Letter of Agreement (“the Agreement”) for
Evans Group to prepare conceptual site planning drawings for a fifty-five and over residential
1
Evans Group is a family run corporation. Donald Evans is a licensed architect who manages the creativity.
(Dkt. 25-1 at 8:9-12, 10:16). Dawn Michele Evans, Donald’s daughter, manages the business. (Dkt. 25-1 at 10:14-15).
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community in Pasco County (“the Project”). (Dkt. 22-1). Conceptual drawings are the initial design
drawings for a construction project and the first step in the development process. (Dkt. 23 ¶ 7).
Conceptual drawings cannot be used for construction or permitting purposes. The Agreement states
in pertinent part:
The Architect hereby expressly reserves his copyright and other property rights in the
Project Documents and it is agreed that upon payment in full of the above amount,
the Client shall have a license to use the Conceptual Site Plan and Architecture for
use on this Project and no other project. These documents are not to be reproduced,
changed, or copied in any form or manner whatsoever without first obtaining the
express written permission and consent of the Architect, nor are they to be assigned
to any party without first obtaining said written permission and consent.
(Dkt. 22-1, Ex. A).
Evans Group prepared the conceptual drawings, and Anand paid in full. (Dkt. 4 ¶ 6). Evans
Group owns copyright registrations for the following: (1) the Clubhouse, No. VAu 1-240-242, (2)
the Courtyard, No. VAu 1-240-272, (3) the Lake and Club Villas, No. 1-240-270, and (4) the Garden
Home, No. VAu 1-240-266. (Dkt. 39, Ex. A). From the conceptual drawings, Anand had electronic
versions of the conceptual drawings prepared by an engineer using a computer aided drafting design
program (“CADD”). The electronic drawings were then used for marketing materials. The parties
agree that the use of the conceptual drawings for marketing materials is within the scope of the
Agreement. (Dkt. 39 at 4).
As the planning for the Project progressed, Evans Group submitted an initial proposal and
price quote to complete the final construction drawings. (Dkt. 23 ¶ 13). The parties’ attempt at
negotiating the scope of work and the expense of the final drawings failed. (Dkt. 22-1, Ex. C; Dkt.
32, Ex. I). The parties attempted to negotiate a fee that would allow Anand to use the conceptual
drawings with another architect. (Dkt. 32, Ex. A ¶ 22). These negotiations also failed. Ultimately,
Anand retained another architect, Brian Wolfe, to complete the construction drawings. (Dkt. 39-5
2
at 33:8-14). This action followed.
Standard
Summary judgment is appropriate where “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). “A genuine factual
dispute exists only if a reasonable fact-finder ‘could find by a preponderance of the evidence that the
[non-movant] is entitled to a verdict.’” Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir.
2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material if it
may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d
642, 646 (11th Cir. 1997).
The moving party bears the initial burden of showing the court, by reference to materials on
file, that there are no genuine disputes of material fact that should be decided at trial. Hickson Corp.
v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). If the moving party fails to demonstrate the absence of a genuine dispute, the
motion should be denied. Kernel Records, 694 F.3d at 1300 (citation omitted). On the other hand,
“‘[i]f no reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine
issue of material fact and summary judgment will be granted.’” Lima v. Fla. Dep’t of Children &
Families, 627 F. App’x 782, 785–86 (11th Cir. 2015) (quoting Beal v. Paramount Pictures Corp.,
20 F.3d 454, 459 (11th Cir.1994)).
Discussion
I. Copyright Infringement
It is undisputed that Evans Group owns valid copyrights in the conceptual drawings and that
Anand had access to the copyrighted conceptual drawings. Evans Group argues that drawings by
Wolfe produced during discovery (the “discovery drawings”) infringe on its copyrighted drawings.
3
Anand counters that Evans Group fails to identify protectable elements in the copyrighted drawings.
And, rather than presenting evidence that the discovery drawings do not infringe on the copyrighted
drawings, Anand responds with new drawings, arguing that the new drawings do not infringe.
“Copyright infringement has two elements: ‘(1) ownership of a valid copyright, and (2)
copying of [protectable] elements.’” Home Design Servs., Inc. v. Turner Heritage Homes Inc., 825
F.3d 1314, 1320-21 (11th Cir. 2016) (Rosenbaum, J., concurring) (quoting Miller’s Ale House, Inc.
v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1325 (11th Cir. 2012)) (alteration in original),
cert. denied, 137 S. Ct. 1335, 197 L. Ed. 2d 543 (Mar. 20, 2017)). The second element can be proven
with direct proof of copying or “by demonstrating that the defendant[] had access to the copyrighted
work and that the works are ‘substantially similar’” Oravec v. Sunny Isles Luxury Ventures, L.C.,
527 F.3d 1218, 1223 (11th Cir. 2008) (citation omitted). And, it is the expression of the idea that is
protectable, not the idea itself. Id. at 1224-25.
“No matter how the copying is proved, the plaintiff also must establish specifically that the
allegedly infringing work is substantially similar to the plaintiff's work with regard to its protected
elements.” Leigh v. Warner Bros., 212 F.3d 1210, 1214 (11th Cir. 2000) (emphasis in original).
Substantial similarity exists “‘where an average lay observer would recognize the alleged copy as
having been appropriated from the [protectable features of the] copyrighted work.’” Miller’s Ale
House, 702 F.3d at 1326 (quoting Oravec, 527 F.3d at 1224) (alteration in original). Therefore, “‘it
must be determined both whether the similarities between the works are substantial from the point
of view of the lay [observer] and whether those similarities involve copyrightable material.’” Id.
(citation omitted) (alteration in original). “‘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 plaintiff's work, or because no reasonable jury, properly
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instructed, could find that the two works are substantially similar.’” Oravec, 527 F.3d at 1223
(citation omitted).
Architectural work is defined under the Copyright Act as including “the arrangement and
composition of spaces and elements in the design” as protectable elements and excluding “individual
standard features” as protectable elements. 17 U.S.C. § 101. Individual standard features include
“‘common windows, doors, and other staple building components.’” Oravec, 527 F.3d at 1225
(quoting H.R.Rep. No. 101-735 (1990), as reprinted in 1990 U.S.C.C.A.N. 6935, 6949) (citation
omitted). While individual standard features are not protectable, “an architect’s original combination
or arrangement of such features may be.” Id. (citations omitted). However, “[c]ustomary styles and
efficiency- or expectation-driven industry standards are not susceptible to copyright.” Home Design,
825 F.3d at 1324. If plans are “drawn in a customary style and to industry standards,” the similarities
are non-copyrightable elements. Id. at 1326. And, “‘similarities in the general layout of rooms can
easily occur innocently.’” Miller’s Ale House, 702 F.3d at 1326 (citation omitted).While in certain
cases the question of substantial similarity is removed from the jury, that will not be the case here.
Anand retained Evans Group “to proceed with the Conceptual Site Planning and Conceptual
Architecture for approximately +/- 330 units in three product lines, and a Club House Amenity[.]”
(Dkt. 32, Ex. E). The Project is “aimed at a very specific audience - Indians, ” and it is “designed
specifically for the older, affluent, traditional Indian audience.” (Dkt. 32, Ex. B). Conceptual
drawings are created by coming up with a shape based on the site or zoning requirements, “tak[ing]
the parts and everything else,” and arranging and composing the parts. (Donald Evans Dep., Dkt. 251 at 21:7-10).
Evans Group argues that the conceptual drawings were “drawn from a blank piece of paper,
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and contain an original composition and arrangement of features[.]” This argument lacks evidentiary
support. There are a finite number of ways to permute a rectangular space. Home Design, 825 F.3d
at 1325. While Dawn Michele Evans avers that design considerations were researched for a unique
community concept, her affidavit is silent regarding the unique features of the copyrighted
conceptual drawings. Donald Evans’ testimony is likewise silent regarding the same.2 While the
concept of creating a community for the “older, affluent, traditional Indian audience” may be unique,
the expression of the design for a clubhouse, homes, and condominiums for this community may not
be. Evans Group fails to identify the protectable elements of its designs that “depart[] from
customary style and industry standards and espouses unusual design choices.” Id. at 1326.
Because Evans Group fails to meet its burden that the discovery drawings infringe on
protectable elements of the conceptual drawings, its motion for summary judgment will be denied.3
See also Intervest Const., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914, 919 (11th Cir. 2008)
(“[O]nly the original, and thus protected arrangement and coordination of spaces, elements and other
staple building components should be compared.”).
2
This is not to suggest that Donald Evans will not testify at trial regarding the originality of his work. Notably,
Anand does not present evidence of any differences between the conceptual drawings and discovery drawings, but rather
compares “current iterations” to the conceptual drawings. (Dkt. 52 ¶ 5). Indeed, the similarities between the conceptual
drawings and discovery drawings are significant and obvious. A reasonable jury could find that because Anand provided
the CADD drawings and copyrighted works to Wolfe for his use, the similarities were intentional. (Dkt. 39-5 at 31:20-24,
32:1-14; Dkt. 52 ¶ 3).
3
Anand’s argument that summary judgment of non-infringement may be entered in its favor under Fed. R. Civ.
P. 56(f) without formal notice because the “ legal issue has been fully developed and the evidentiary record is complete”
is rejected. As Anand argues, the drawings are “on-going,” and new drawings were provided months after discovery
closed. Accordingly, whether Anand’s new drawings infringe on Evans Group’s copyrighted works is not fully developed
on this record.
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II. License to Use Conceptual Drawings
A. License Granted in the Agreement
The parties dispute the interpretation of the terms granting Anand a license to use the
conceptual drawings. Anand contends that the Agreement grants it a license to use the conceptual
drawings without limitation for the Project. Evans Group counters that the terms prohibit Anand
from reproducing, changing, or copying the conceptual drawings for any project without its express
written permission and consent.
Under Florida law, “[t]he parties’ intention governs contract construction and interpretation;
the best evidence of intent is the contract’s plain language.”4 Whitley v. Royal Trails Prop. Owners'
Ass'n, Inc., 910 So. 2d 381, 383 (Fla. 5th DCA 2005) (citations omitted). “When provisions in a
contract appear to be in conflict, they should be construed so as to be reconciled, if possible.”
Seabreeze Rest., Inc. v. Paumgardhen, 639 So. 2d 69, 71 (Fla. 2d DCA 1994). While the court
determines whether contract terms are ambiguous, if the terms “‘are disputed and reasonably
susceptible to more than one construction, an issue of fact is presented as to the parties' intent which
cannot properly be resolved by summary judgment.’” Strama v. Union Fid. Life Ins. Co., 793 So.
2d 1129, 1132 (Fla. 1st DCA 2001) (quoting Universal Underwriters Ins. Co. v. Steve Hull
Chevrolet, Inc., 513 So.2d 218, 219 (Fla. 1st DCA 1987)).
The Agreement states:
The Architect hereby expressly reserves his copyright and other property rights
in the Project Documents and it is agreed that upon payment in full of the above
amount, the Client shall have a license to use the Conceptual Site Plan and
Architecture for use on this Project and no other project. These documents are
4
Contract interpretation is ordinarily a matter of state law. In re Chira, 567 F.3d 1307, 1311 (11th Cir. 2009).
It is undisputed that the Agreement was made in Florida, and therefore Florida law applies. Fioretti v. Massachusetts
Gen. Life Ins. Co., 53 F.3d 1228, 1235 (11th Cir. 1995).
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not to be reproduced, changed, or copied in any form or manner whatsoever
without first obtaining the express written permission and consent of the
Architect, nor are they to be assigned to any party without first obtaining said
written permission and consent.
(Dkt. 22-1, Ex. A). And, the parties dispute the interpretation of the terms granting a license to
Anand.
Anand contends that the Agreement grants it a license to use the conceptual drawings without
restriction on the Project and that the license only restricts its use of the conceptual drawings outside
of the Project. Evans Group counters that Anand is prohibited from reproducing or changing the
conceptual drawings without consent. There are questions of material fact concerning the parties’
respective interpretations of the Agreement that cannot be resolved at summary judgment. See
Strama, 793 So. 2d at 1132. Accordingly, Anand’s motion on this issue will be denied.5
B. Implied License
Alternatively, Anand contends that Evans Group granted it an implied license. As the alleged
infringer, Anand has the burden of establishing an implied license. Latimer v. Roaring Toyz, Inc.,
601 F.3d 1224, 1235 (11th Cir. 2010). Similar to express licenses, an implied license may be limited.
Id. The focus is on objective evidence revealing the intent of the parties. Id. And, “an implied license
will be limited to a specific use only if that limitation is expressly conveyed when the work is
delivered.” Id.
Anand argues that the draft versions of the parties’ agreement reveal an implied license. Each
draft agreement includes the terms “[t]hese documents are not to be reproduced, changed, or copied
in any form or manner whatsoever[.]” (Dkt. 22-1, Ex. A, D, E, F). And, the limitation expressly
5
To the extent the Evans Group is moving for summary judgment on this issue, (see Dkt. 39 at 21), its Motion
is likewise denied.
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included in the Agreement is susceptible to more than one construction as previously discussed.
Latimer, 601 F.3d at 1235; Strama, 793 So. 2d at 1132. Anand’s motion on this issue, therefore, will
be denied.
Conclusion
Accordingly, Plaintiff’s Motion for Summary Judgment (Dkt. 22) and Defendant’s Motion
for Partial Summary Judgment (Dkt. 39) are DENIED.
DONE AND ORDERED this 17th day of July, 2017.
/s/ James D. Whittemore
JAMES D. WHITTEMORE
United States District Judge
Copies to: Counsel of Record
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