America's Home Place, Inc. v. Fine Built Construction of North Carolina, Inc. et al
Filing
111
ORDER: The 90 Motion to Exclude the Declaration of Larry Vandiver is GRANTED in part and DENIED in part. The Neislers 71 Motion for Summary Judgment and the Fine Defendants 83 Motion for Summary Judgment as to Plaintiffs Claims are GRANTED. Pla intiffs 73 Motion for Summary Judgment is hereby DENIED. The Fine Defendants 82 Motion for Summary Judgment as to the Neislers Counterclaims is GRANTED in part and DENIED in part. It is granted as to the Neislers GUDTPA claim, which the parties h ave agreed to dismiss. It is denied as moot as to the Neislers breach of implied warranty claim. The remaining counterclaims against the Fine Defendants(Count II and Count IV, Defs. Terry and Kim Neislers Answer, Affirmative Defenses and Countercl. to Co-Defs. Cross-cl., Dkt. 20 )are, therefore, DISMISSED. As there are no claims remaining in this action, the Clerk is DIRECTED to close the case. Signed by Judge Richard W. Story on 01/29/2018. (rsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
AMERICA’S HOME PLACE,
INC.,
Plaintiff,
v.
FINE BUILT CONSTRUCTION
OF NORTH CAROLINA, INC., et
al.,
Defendants.
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CIVIL ACTION NO.
2:15-CV-00197-RWS
ORDER
This case comes before the Court on the Neisler Defendants’ Motion for
Summary Judgment [71]; Plaintiff’s Motion for Summary Judgment [73]; and
Defendants Fine Built Construction and Clifford T. Fine’s Motions for
Summary Judgment as to Plaintiff’s Complaint [83] and the Neisler
Defendants’ Counterclaims [82].
Also before the Court is a Motion to Exclude the Declaration of Larry
Vandiver [90], which was filed in support of Plaintiff’s Motion for Summary
Judgment. As the Court indicated during oral argument on November 13,
2017, that Motion will be GRANTED in part and DENIED in part. It is
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granted as to Plaintiff’s attempt to introduce an additional floor plan–the
Oxford Plan–that was not produced until after the close of discovery. See FED.
R. CIV. P. 37(c). The Motion is denied, however, insofar as it seeks to prevent
Plaintiff’s introduction of the complete copyright registrations for the
Mountainview plans, upon which this suit is, and has always been, premised.
As to the other pending Motions, after reviewing the record and
considering the parties’ arguments in the briefs and during oral argument, the
Court enters the following Order.
Background
This is a copyright case involving residential building designs. Plaintiff
America’s Home Place, Inc. is a “scattered-lot” custom home builder. (Pl.’s
Statement of Undisputed Material Facts (“Pl.’s SMF”), Dkt. [73-2] ¶ 1.)1
Plaintiff owns certificates of registration from the United States Copyright
1
The Court notes that many of the objections made by the Neislers and Fine
Defendants in response to Plaintiff’s Statement of Undisputed Material Facts [73-2]
stem from their dissent over the use of the Declaration of Larry Vandiver [74] because
Mr. Vandiver was not identified as a witness during discovery. As indicated above,
the Court will only disregard the statements and exhibits of the Vandiver Declaration
that pertain to the Oxford home design. Otherwise, the Court will allow Plaintiffs to
rely upon the Vandiver Declaration. Facts derived therefrom will be deemed admitted
absent an alternative basis for objecting from Defendants.
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Office for two residential construction plans called the Mountainview I and
Mountainview II.2 (Id. ¶¶ 2–6; Vandiver Decl., Dkt. [74] at Ex. A, Ex. B.)
In 2014, Kim and Terry Neisler–two first responders from
Florida–approached Plaintiff and several other local builders about building a
home for them in Blairsville, Georgia. (Decl. of Terence Neisler (“Neisler
Decl.”), Dkt. [71-4] ¶¶ 3, 8–9.) When the Neislers met with Plaintiff, some
time in October 2014, they had already created a conceptual layout for their
future home. (Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (“Pl.’s Resp.
to Fine SOF”), Dkt. [96] ¶ 105.) While in discussions with Plaintiff, the
Neislers were shown portions of the Mountainview I-B and II-B plans, which
are modified versions of the original Mountainview designs. (Defs.’ Resp. to
Pl.’s Statement of Undisputed Material Facts (“Fines’ Resp. to Pl. SOF”), Dkt.
[97-1] ¶ 33–34.) The Moutainview I-B and II-B were redlined to reflect
modifications requested by the Neislers. (Id.)
Ultimately, however, the Neislers never contracted with Plaintiff.
2
The registration numbers for the Mountainview I and Mountainview II are
VAu000610338 and VAu000610339, respectively.
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Instead, the Neislers retained Fine Built Construction (“Fine Built”)3 to build
their home. (Pl.’s Resp. to Fine SOF, Dkt. [96] ¶¶ 104, 106.) Fine Built then
hired Diane Wilson to draft plans for the Neislers’ home, and the Fine
Defendants constructed a home based on those plans. (Id. ¶¶ 115–16; Fines’
Resp. to Pl. SOF, Dkt. [97-1] ¶ 41.) After Plaintiff noticed similarities between
its Mountainview plans and the home the Neislers had built, this litigation
ensued. Plaintiff brings this copyright action alleging that the Neislers’ home
impermissibly infringes upon the Mountainview I-B and Mountainview II-B
designs, as well as the redlined versions of those plans. Plaintiff now moves
for summary judgment, as do Defendants.
Discussion
I.
Summary Judgment Standard
Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “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.” “The moving
party bears ‘the initial responsibility of informing the . . . court of the basis for
3
Defendant Clifford T. Fine is the president of Fine Built. (Pl.’s Resp to Fine
SOF, Dkt. [96] ¶ 15.) The two, collectively, will be referred to as the “Fine
Defendants.”
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its motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, which it believes demonstrate the absence of a genuine issue of material
fact.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.
2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where the
moving party makes such a showing, the burden shifts to the non-movant, who
must go beyond the pleadings and present affirmative evidence to show that a
genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249–50.
Furthermore, in resolving a motion for summary judgment, the court
must view all evidence and draw all reasonable inferences in the light most
favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d
1294, 1296 (11th Cir. 2002). But, the court is bound only to draw those
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inferences that are reasonable. “Where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). “If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477
U.S. at 249-50 (internal citations omitted); see also Matsushita, 475 U.S. at 586
(once the moving party has met its burden under Rule 56(a), the nonmoving
party “must do more than simply show there is some metaphysical doubt as to
the material facts”).
Finally, the standard of review for cross-motions for summary judgment
does not differ from the standard applied when only one party files a motion,
but simply requires a determination of whether either of the parties deserves
judgment as a matter of law on the facts that are not disputed. Am. Bankers
Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005). The Court
must consider each motion on its own merits, resolving all reasonable
inferences against the party whose motion is under consideration. Id. And
while “[c]ross-motions for summary judgment will not, in themselves, warrant
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the court in granting summary judgment unless one of the parties is entitled to
judgment as a matter of law on facts that are not genuinely disputed,” crossmotions may be probative of the absence of a factual dispute where they reflect
general agreement by the parties as to the controlling legal theories and
material facts. United States v. Oakley, 744 F.2d 1553, 1555–56 (11th Cir.
1984).
II.
Cross Motions for Summary Judgment [71], [73], [83]
To support a claim of copyright infringement, Plaintiff must prove (1)
ownership of a valid copyright and (2) copying of protectable elements by
Defendants. Miller’s Ale House, Inc. v. Boynton Carolina Ale House, LLC,
702 F.3d 1312, 1325 (11th Cir. 2012) (quoting Oravec v. Sunny Isles Luxury
Ventures, LLC, 527 F.3d 1218, 1223 (11th Cir. 2008)).
A.
Ownership of a Valid Copyright
The first element–ownership of a copyright–may be demonstrated
through registration with the United States Copyright Office. Donald Frederick
Evans & Assocs., Inc. v. Cont’l Homes, Inc., 785 F.2d 897, 903 (11th Cir.
1986). Here, Plaintiff has produced certificates of registration for two
residential construction plans: Mountainview I (registration number
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VAu000610338) and Mountainview II (registration number VAu000610339).
Defendants do not challenge Plaintiff’s ownership of these copyrights or their
validity.4
Defendants do argue, however, that the redlined Mountainview plans
cannot form a basis for Plaintiff’s copyright infringement action because they
are unregistered works. Plaintiff responds that the redlined plans are derivative
works of the Mountainview plans, so registration of the latter is sufficient to
permit a claim for infringement of the former.
Registration with the Copyright Office is a precondition for bringing an
action for copyright infringement. Reed Elsevier, Inc. v. Muchnick, 559 U.S.
154, 157 (2010); Fourth Estate Pub. Benefit Corp. v. Wall–Street.com, LLC,
856 F.3d 1338, 1339 (11th Cir. 2017); see 17 U.S.C. § 411(a) (“[N]o civil
action for infringement of the copyright in any United States work shall be
4
The Fine Defendants challenge whether these registrations actually apply to
the plans at issue, however, “because neither of the certificates include a copy of the
deposit/plans submitted with the registration.” (Fine Defs.’ Reply in Further Supp. of
Their Mot. for Summ. J. as to Pl.’s Compl., Dkt. [102] at 7.) On summary judgment,
the Court must construe the facts in the light most favorable to the nonmoving
party–in the case of this argument, Plaintiff–meaning that the Court will accept as true
Plaintiff’s allegation that the floor plans produced are derivative works of these
registered plans. However, as discussed more fully below, this presents another issue
with Plaintiff’s claim.
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instituted until preregistration or registration of the copyright claim has been
made in accordance with this title.”). As a general rule, this registration
requirement also applies to derivative works. Murray Hill Publ’ns, Inc. v. ABC
Commc’ns, Inc., 264 F.3d 622, 632 (6th Cir. 2000) (“[B]efore an infringement
suit can be sustained based on the derivative work, that derivative work must
be registered.”), abrogated in part by Reed, 559 U.S. at 157 (The “registration
requirement is a precondition to filing a claim that does not restrict a federal
court’s subject-matter jurisdiction.”). Otherwise, the owner of a copyright in a
registered underlying work may sue for infringement of portions of an
unregistered derivative work, only where the underlying work is infringed by
virtue of the defendant’s copying of the derivative work. Montgomery v.
Noga, 168 F.3d 1282, 1292–93 (11th Cir. 1999); see also Willis v. Knight, No.
1:08-CV-705-ODE, 2008 WL 11336133, at *4 (N.D. Ga. Oct. 20, 2008). In
other words, “an unregistered derivative work is protected from infringement
only to the extent to which that unregistered work has reproduced protected
material from the underlying registered work.” Pearson Educ., Inc. v. Ishayev,
963 F. Supp. 2d 239, 248 (S.D.N.Y. 2013) (citing cases supporting this
“majority approach,” including Montgomery, 168 F.3d at 1292 (“The exclusive
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right to prepare derivative works, specified separately in clause (2) of section
106, overlaps the exclusive right of reproduction [in section 106(1) ] to some
extent. . . . [T]o constitute a violation of section 106(2), the infringing work
must incorporate a portion of the copyrighted work in some form.”)).
Here, then, the redlined plans are only protected insofar as the
Mountainview plans are. Any alterations in the redlined plans need not be
considered and do not affect the Court’s analysis. But more significantly, these
legal principles illuminate a different, glaring issue with Plaintiff’s case.
Namely, Plaintiff has only produced copyright registrations for the
Mountainview I and Mountainview II plans, but has alleged infringement of
the Mountainview I-B and Mountainview II-B plans, which Plaintiff admits are
derivative works of the registered plans. (See Pl.’s SOF, Dkt. [73-2] ¶¶ 2–8.)
However, as stated above, a derivative work must be registered
separately from the underlying work prior to filing a copyright suit based on
the derivative; if not, the unregistered derivative work is protected only to the
extent it includes protected elements of the underlying design. Montgomery,
168 F.3d at 1292 (concluding the court had jurisdiction over an infringement
action based on an unregistered derivative, where the derivative incorporated
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significant protectable elements of a registered original work, such that by
copying the unregistered derivative, the defendants infringed original elements
of the underlying registered work); see also Dalton Ross Homes, Inc. v.
Williams, No. CV-06-1301-PCT-FJM, 2007 WL 2461892, at *3 (D. Ariz. Aug.
29, 2007) (granting summary judgment in favor of defendants who had
admittedly copied an unregistered derivative work of a registered floor plan
because “a plain reading of section 501(b) in conjunction with section 411(a)
[which makes no distinction between a derivative and original work],
indicate[s] that in order to file an action for infringement of a derivative work,
the plaintiff must first register the copyright of that derivative work”).
Plaintiff has neither produced a copyright registration for the derivative
plans, nor explained how the derivative plans incorporated original, protectable
elements of the underlying, registered works. Rather, Plaintiff, in its briefing,
argues merely that its registrations are valid and “‘that a valid copyright can
exist in a derivative work’ based upon preexisting works.” (Pl.’s Reply to all
Defs. Resp. to Pl.’s Mot. for Summ. J., Dkt. [103] at 2–6, 8 (quoting Original
Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821 (11th Cir. 1982).).
Certainly, this is true, but it misses the point. Plaintiff’s registrations only
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make clear that the Mountainview I and Mountainview II plans are
copyrighted; they do not satisfy the statutory requirement of registration as to
the Mountainview I-B and Mountainview II-B. See, e.g., Murray Hill Publ’ns,
264 F.3d at 630 (holding that the copyright owner must formally register a
derivative work in order to file an infringement suit for infringement of that
derivative work). Therefore, Plaintiff may only sue for infringement of the
Mountainview I-B and Mountainview II-B based on its registration of the
underlying Mountainview plans if “the author of both works is the same and
the underlying work is infringed by virtue of the defendant’s copying of the
derivative work.” Willis, 2008 WL 11336133, at * 4 (citing Montgomery, 168
F.3d at 1292–93) (emphasis added).
The Eleventh Circuit articulated this limitation in Montgomery v. Noga.
There, the author of a computer program enabling users to view pictures on a
computer screen integrated several computer programs to create the initial
version of a program called VPIC. Montgomery, 168 F.3d at 1286. The author
registered his copyright in VPIC version 2.9a, but the case stemmed from the
defendants’ unlicensed download and use of VPIC version 4.3. Id. at 1286–87.
There was no copyright registration for version 4.3, which was derived from
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2.9a. Id. at 1287, 1291–92. Nevertheless, the Eleventh Circuit affirmed the
district court’s act of allowing the author to prove infringement of the
unregistered version 4.3 by showing that the defendants violated the copyright
of version 2.9a:
The evidence at trial showed that VPIC 4.3 incorporated over
seventy percent of the original source code from the registered
work VPIC 2.9a, and that VPIC 4.3 would not function if the
VPIC 2.9a code was removed. By downloading VPIC 4.3 and
incorporating it as a utility on FLD discs, therefore, the defendants
infringed Montgomery’s registered copyright in VPIC 2.9a within
the meaning of section 501(a) of the Copyright Act.
Id. at 1292–93.
Such is not the case here. In Montgomery, the author’s claim for
infringement was based on the inevitability that by use of the unregistered
VPIC 4.3, the defendants necessarily infringed upon the registered VPIC 2.9a
by virtue of the fact that the derivative version incorporated a significant
portion of the protected one, without which VPIC 4.3 could not even function.
By contrast, Plaintiff has presented no evidence to suggest that Mountainview
I-B and Mountainview II-B incorporate any meaningful share of the protected
plans, such that any copying of the derivative works by Defendants inevitably
means infringement of the registered designs.
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It is Plaintiff’s burden to prove, not just its ownership of a valid
copyright, but also copying of protectable elements by Defendants. See, e.g.,
Miller’s Ale House, 702 F.3d at 1325. In the case of the unregistered
Mountainview I-B and Mountainview II-B plans, the only possible protectable
elements are those also present in the Mountainview I and Mountainview II
plans. As Plaintiff has not produced the original Mountainview designs, it is
impossible to discern what in the derivative plans might be protected and what,
as a matter of law, cannot be. As a result, Plaintiff has failed to carry its
burden. And this, alone, is sufficient to warrant summary judgment in favor of
Defendants. Nonetheless, because the Parties have spent significant time
arguing the issue of substantial similarity, the Court will turn briefly to the
second element of Plaintiff’s copyright claim–copying–recognizing that it will
not change the outcome of this Order.
B.
Copying
“Copying” may be shown by establishing a defendant’s access to the
copyrighted work and that the defendant’s work is substantially similar to the
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plaintiff’s work.5 Donald Frederick Evans & Associates, Inc. v. Continental
Homes, Inc., 785 F.2d 897, 903-04 (11th Cir. 1986). Because it is not
contested that Defendants had access to the Mountainview plans, the Court will
focus on whether the Neislers’ home is substantially similar to those designs.
In an action involving architectural works, the test for substantial
similarity is “whether a reasonable jury could find the competing designs
substantially similar at the level of protected expression.” Miller’s Ale House,
702 F.3d at 1325. The protection afforded compilations such as floor plans,
however, is “thin.” Id. That is because “the variety of ways a two-story
rectangle can be divided into three bedrooms, two baths, a kitchen, a great
room or living room, closets, porches, etc. is finite.” Howard v. Sterchi, 974
F.2d 1272, 1275 (11th Cir. 1992). And so “the substantial similarity analysis
5
This is the test where proof of direct copying is unavailable. Herzog v.
Castle Rock Entm’t, 193 F.3d 1241, 1249 (11th Cir. 1999) (“Since it is virtually
impossible to prove copying directly, this element is usually established
circumstantially, by demonstrating that the person who composed the defendant’s
work had access to the copyrighted material and that there is substantial similarity
between the works.”). Here, Defendants deny copying. And even if there were
evidence that the Neislers attempted to copy the Mountainview plans, “there is no
infringement unless the defendant succeeded to a meaningful degree.” Leigh v.
Warner Bros., 212 F.3d 1210, 1214 (11th Cir. 2000). Therefore the Court would still
need to perform the same substantial similarity analysis.
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must focus [only] on similarity of expression, i.e., material susceptible of
copyright protection.” Intervest Constr., Inc. v. Canterbury Estate Homes, Inc.,
554 F.3d 914, 921 (11th Cir. 2008). “[S]pacial depictions of rooms, doors,
windows, walls, etc.” are not protected. Intervest, 554 F.3d at 920. Only “an
architect’s original combination or arrangement of such elements may be.” Id.
at 919; see also Home Design Servs., 825 F.3d 1314 at 1321 (explaining that
the Copyright Act restricts the definition of copyrightable architectural work to
exclude “individual standard features”–e.g., “common windows, doors, and
other staple building components.” (citing 17 U.S.C. § 101 and its legislative
history)). Moreover, given the subtle distinction between protected and
unprotected expression, according to the Eleventh Circuit, judges, rather than
juries, are usually better equipped to resolve questions of infringement. See
Intervest, 554 F.3d at 920 (The issue of “substantial similarity at the level of
protectable expression . . . is often more reliably and accurately resolved in a
summary judgment proceeding . . . because a judge is better able to separate
original expression from the non-original elements of a work . . . .”). It is the
Court’s task, then, to “separate protectable expression from non-protectable
expression” and determine whether the protectable elements of the works are
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“substantially similar,” recognizing that with architectural designs, “modest
dissimilarities are more significant than they may be in other types of art
works.” Miller’s Ale House, 702 F.3d at 1326; Intervest, 554 F.3d at 918.
To illustrate, take Intervest, where the Eleventh Circuit examined a set of
architectural house plans and found that, although the plans shared the same
overall layout, no reasonable jury could deem them substantially similar at the
level of protected expression due to numerous, subtle differences in the plans’
otherwise standard architectural features. Id. 921. Common elements among
the two floor plans included four bedrooms, a two-car garage, living room,
dining room, family room, foyer, kitchen, two bathrooms, a nook, and a porch.
Id. at 916. But the plans contained significant differences as well, such as
different room dimensions, different garage entrance locations, the inclusion of
a “bonus room” above the garage in one model but not the other, different
locations of the air conditioning unit and water heater, the inclusion of
windows in the garage in one model but not the other, and several differences
between the various bedrooms across the two models. Id. at 916–17 (quoting
the district court’s order granting summary judgment in favor of defendant and
recognizing these differences as significant). The court, therefore, concluded
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that no reasonable jury could find the two floor plans at issue “substantially
similar.” Id. at 921.
Likewise, in Home Design Services, the court found no infringement
despite the plans sharing the same set of rooms, arranged in the same overall
layout, the same presence, location, and function of walls, entryways, windows,
and fixtures:
Although HDS-2089 and the Turner plans share the same general
layout, this is only because both sets of plans follow the customary
four-three split style, as well as the attendant industry standards.
Kevin Alter, Home Design’s own expert, conceded on
cross-examination that HDS-2089's split-bedroom arrangement
aligns with industry standards, as does the contiguity of the dining
room, breakfast nook, and kitchen. Alter further characterized
HDS-2089 as neither “unusual” nor “radically different [from] the
many things that are on the market.” No one, including Home
Design, owns a copyright to the idea of a four-three split style, nor
to the industry standards that architects regularly heed to achieve
such a split.
825 F.3d at 1324–25.
So too here, the problem for Plaintiff is that the Mountainview designs
seem to merely follow the customary style for split-level homes with open floor
plans, as well as the attendant industry standards. (See generally Ex. 2,
Neislers’ Mot. for Summ. J. (“Wilson Dep. Excepts”), Dkt. [71-5] at 9–40.)
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Plaintiffs have produced no testimony or other evidence to the contrary. And
“when floor plans are drawn in a customary style and to industry standards,
even ‘subtle differences’ . . . can indicate that there is no copyright
infringement.” Home Design Servs., 825 F.3d at1324. 1324 (citing Zalewski v.
Cicero Builder Dev., Inc., 754 F.3d 95, 102 n.12, 106–07 (2d Cir. 2014)).
The differences here, though, are not so subtle. Indeed, while the
Neislers’ home and Mountainview plans are visually similar in some respects,
there are a number of significant dissimilarities comparable to those identified
in Intervest and Home Design Services. In fact, Defendants allege more than
one hundred dissimilarities, the existence of which Plaintiff does not dispute.
Instead, Plaintiff contends that they are merely “differences among
non-protectable elements [that] should have no bearing on the Court’s analysis
of substantial similarity.” (Pl.’s Resp. in Opp’n to All Defs.’ Mots. for Summ.
J. as to Pl.’s Claims, Dkt. [95] at 11 (citing Intervest, 554 F.3d at 921).)
According to Plaintiff, the Court should compare the plans at a broader level,
which will reveal “substantial similarity among the” unique arrangement and
coordination of elements that “significantly overshadows any minute
differences that may exist among individual standard elements[.]” (Id. at 12.)
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However, it is both the individual design elements and the unique compilation
of those elements that are relevant to the copyright infringement analysis. Jeff
Benton Homes v. Alabama Heritage Homes, Inc., 929 F. Supp. 2d 1231, 1241
(N.D. Ala. 2013).
Comparing the Mountainview plans and the Neislers’ home side by side,
there are several striking dissimilarities. Looking just at the exterior, it is clear
that the Neislers’ home has a higher elevation and includes an entire floor–the
basement–that is absent from the Mountainview plans. Furthermore, the porch
on the Neislers’ home spans the length of the building’s posterior; the
Mountainview porches do not. And while both designs include a similar
roofline, the Mountainview gable descends at a steeper slope, and the gables’
central windows differ, as do the size and shape of the windows on the left and
right sides of the main floors. The position of the chimney and vents are
different as well.
Numerous dissimilarities are also evident when examining the plans’
interior designs, dozens of which are present in the main floor alone. These
include different windows and different window locations, a fireplace, different
sized rooms, a larger, distinctly-shaped island in the Neislers’ kitchen, and a
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staircase to the basement, which of course leads to an entire floor absent from
the Mountainview plans. Additionally, the upstairs of the Nieslers’ home has
larger closets, a single closet in the master bedroom–as opposed to two separate
ones, a linen closet in the master bathroom, french doors in one of the
bedrooms, different sized windows, and different room dimensions, just to
name a few. Not only were many of these dissimilarities highlighted by the
Eleventh Circuit in Intervest and Heritage Homes, but the volume of
dissimilarities between the Neislers’ home and Mountainview plans and their
magnitude are at least comparable to the ones present in those cases, if not
greater.
Thus, Plaintiff has failed to demonstrate that the Neislers’ home and
Mountainview plans are substantially similar under the applicable law.
Defendants’ Motions for Summary Judgment [71], [83] are, therefore,
GRANTED, and Plaintiff’s Motion for Summary Judgment [73] is DENIED.
II.
Fine Defendants’ Motion for Summary Judgment as to the Neisler
Defendants’ Counterclaims [82]
The Fine Defendants move for summary judgment as to the Neislers’ two
remaining counterclaims: (1) breach of implied warranty and (2) violation of
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the Georgia Uniform Deceptive Trade Practices Act (“GUDTPA”).6 The
Neislers’ breach of implied warranty claim seeks contribution and/or
indemnification in the event of a finding of liability on any of Plaintiff’s
claims. Because summary judgment will be granted in favor of Defendants,
this counterclaim is moot and will be dismissed. In addition, the Neislers have
agreed to voluntarily dismiss their GUDTPA claim, (see Mem. of Law in Opp.
to Fine Defs.’ Mot. for Summary J., Dkt. [92] at 5), so it will likewise be
dismissed. The Fine Defendants’ Motion for Summary Judgement as to the
Neisler Defendants’ Counterclaims is, thus, GRANTED in part and DENIED
in part. All remaining counterclaims against the Fine Defendants are hereby
DISMISSED.
Conclusion
For the foregoing reasons, the Motion to Exclude the Declaration of
Larry Vandiver [90], is GRANTED in part and DENIED in part.
The Neislers’ Motion for Summary Judgment [71] and the Fine
6
The Neislers initially brought four counterclaims against the Fine Defendants
in response to two cross-claims filed by the Fine Defendants. However, after the
Court dismissed the Fine Defendants cross-claims (see Dkt. [48]), the Neislers
voluntarily dismissed two of their counterclaims with permission from the Court (see
Dkt. [65]). Only the Neislers’ implied warranty and GUDTPA claims remain.
22
AO 72A
(Rev.8/82)
Defendants’ Motion for Summary Judgment as to Plaintiff’s Claims [83] are
GRANTED. Plaintiff’s Motion for Summary Judgment [73] is hereby
DENIED.
The Fine Defendants’ Motion for Summary Judgment as to the Neislers’
Counterclaims [82] is GRANTED in part and DENIED in part. It is granted
as to the Neislers’ GUDTPA claim, which the parties have agreed to dismiss. It
is denied as moot as to the Neislers’ breach of implied warranty claim. The
remaining counterclaims against the Fine Defendants–(Count II and Count IV,
Defs.’ Terry and Kim Neisler’s Answer, Affirmative Defenses and Countercl.
to Co-Defs.’ Cross-cl., Dkt. [20])–are, therefore, DISMISSED.
As there are no claims remaining in this action, the Clerk is DIRECTED
to close the case.
SO ORDERED, this 29th day of January, 2018.
________________________________
RICHARD W. STORY
United States District Judge
23
AO 72A
(Rev.8/82)
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