Zalewski et al v. T.P. Builders, Inc. et al

Filing 194

MEMORANDUM-DECISION and ORDER - That plaintiffs' letter motion regarding the submission of errata sheets (Dkt. No. 185) is GRANTED. That T.P. and Cicero's motions for summary judgment (Dkt. Nos. 176, 177) are GRANTED and all claims against them are DISMISSED. That plaintiffs may, if they so choose, file a Fourth Amended Complaint within thirty (30) days of the date of this Memorandum-Decision and Order, limited to the issue of wholesale copying of their works, that complies with the requirements of, inter alia, N.D.N.Y.L.R. 7.1(a)(4). That, if plaintiffs do not file a Fourth Amended Complaint within thirty (30) days of this order, the Clerk is directed to enter judgment for defendants and close this case. Signed by Chief Judge Gary L. Sharpe on 6/18/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JAMES E. ZALEWSKI et al.,
Plaintiffs,
v.

1:10-cv-876
1:11-cv-1156
(GLS/RFT)

T.P. BUILDERS, INC. et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Lee Palmateer Law Office LLC
90 State Street, Suite 700
Albany, NY 12207
FOR THE DEFENDANTS:
T.P. Builders and Thomas Paonessa
Schmeiser, Olsen Law Firm
22 Century Hill Drive
Suite 302
Latham, NY 12110
Cicero Building Dev., Inc
and Luigi Cicero
Hoffman, Warnick Law Firm
75 State Street - 14th Floor
Albany, NY 12207
Roxanne K. Heller
and DeRaven Design & Drafting
Heslin, Rothenberg Law Firm
5 Columbia Circle
Albany, NY 12203

LEE PALMATEER, ESQ.

ARLEN L. OLSEN, ESQ.

PAUL C. RAPP, ESQ.

ANNETTE I. KAHLER, ESQ.
CAROLINE B. AHN, ESQ.
SUSAN E. FARLEY, ESQ.

V.S. Sofia Engineering, Sofia
Engineering, PLLC and
Vincenzo S. Sofia
Sugarman, Wallace Law Firm
211 West Jefferson Street
Syracuse, NY 13202

KEVIN R. VAN DUSER, ESQ.
SAMUEL M. VULCANO, ESQ.

Cillis Builder, Inc.
and Theodore Cillis III
DeGraff, Foy Law Firm
90 State Street
Albany, NY 12207

GEORGE J. SZARY, ESQ.
NICOLE ROMAN RODGERS,
ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs James Zalewski and Draftics, Ltd. commenced this action1
for copyright infringement under the Copyright Act of 1976, as amended,2
against defendants T.P. Builders, Inc. and Thomas Paonessa (collectively
“T.P.”); Roxanne K. Heller and DeRaven Design & Drafting (collectively
“DeRaven”); V.S. Sofia Engineering, Sofia Engineering, PLLC, and
Vincenzo S. Sofia (collectively “Sofia”); Cillis Builders, Inc. and Theodore
1

By Order dated March 16, 2012, Magistrate Judge Randolph F. Treece directed the
parties to enter a joint stipulation consolidating case numbers 10-cv-876 and 11-cv-1156.
(See Dkt. No. 171, 10-cv-876.)
2

17 U.S.C. §§ 101-1332.

2

Cillis III, (collectively “Cillis”); and Cicero Building Dev., Inc. and Luigi
Cicero (collectively “Cicero”). (See 3d Am. Compl., Dkt. No. 138, 10-cv876; Compl., Dkt. No. 1, 11-cv-1156.)3 Pending are T.P. and Cicero’s
motions for summary judgment.4 (See Dkt. Nos. 176, 177.) For the
reasons that follow, the motions are granted.
II. Background
A.

Underlying Facts5
In the early and mid-1990s, James Zalewski, the president, sole

shareholder and draftsman for Draftics, Ltd., created home designs
DRA210, DRA211, DRA212, DRA216, DRA217 and DRA313. (See 3d
Am. Compl. ¶¶ 17, 22.) Although Zalewski did not immediately register
these designs with the United States Copyright Office, he provided T.P.
with copies of them. (See id. ¶¶ 23-29, 38.) Between 1993 and 1998,

3

Docket citations refer to Case No. 10-cv-876; citations to 11-cv-1156 are noted as

such.
4

T.P.’s motion seeks either dismissal under Fed. R. Civ. P. 12(b)(6) or summary
judgment under Fed. R. Civ. P. 56. (See Dkt. No. 176.) Because T.P. filed an Answer, (see
Dkt. No. 148), dismissal under Rule 12 is unavailable. See Fed. R. Civ. P. 12(b). As such,
T.P.’s motion will be analyzed under Rule 56.
5

Though analyzed under Fed. R. Civ. P. 56, T.P. and Cicero’s statements of material
facts provide little in the way of background. (See Dkt. No. 176, Attach. 29; Dkt. No. 177,
Attach. 7.) Therefore, the material facts are taken from plaintiffs’ Third Amended Complaint
and, unless otherwise noted, are undisputed.

3

plaintiffs claim that T.P. advertised their designs and sold several houses
in accordance with them. (See id. ¶ 41.) However, in 1998, plaintiffs
assert that T.P. ceased using Draftics’ services, yet continued to advertise
and build homes based on their drawings. (See id. ¶ 42.)
Plaintiffs now allege that defendants constructed in excess of twenty
homes which infringed their copyrighted designs. (See generally id. ¶¶ 3294.) Specifically, they claim that in addition to “literal copying,” the
infringing homes “copy the overall form, look and feel . . ., the floor plans . .
. , the elevation views . . . , the arrangement and composition of spaces
and architectural features . . . , [and] the selection, coordination, and
arrangement of rooms, windows, doors, closets, stairs and other interior
and exterior architectural features of the copyrighted works.” (Id. ¶ 52.)
Moreover, plaintiffs aver that T.P. and Cicero removed copyright notices
from advertisements displayed on various websites. (See id. ¶¶ 95-113;
Compl. ¶¶ 18-41, 11-cv-1156.)
B.

The Works
In general, plaintiffs’ works depict Colonial home plans, consisting of

elevation views and/or floor plans. (See Dkt. No. 138, Attachs. 1-7.) Each
has been registered with the United States Copyright Office as evidenced
4

by the certificates of registration attached to the Third Amended Complaint.
(See id.) According to the certificates, DRA210 was first published on
December 31, 1994 and registered on October 14, 2009, (see id., Attach.
1); DRA211 was first published on December 31, 1994 and registered on
October 14, 2009, (see id., Attach. 2); DRA212 was first published on
December 31, 1994 and registered on October 14, 2009, (see id., Attach.
3); DRA216 (home plan) was completed in 1996 and registered on
November 13, 2007, (see id., Attach. 4); DRA216 (technical drawings) was
completed in 1996 and registered on November 13, 2007, (see id., Attach.
5); DRA217 was first published on December 31, 1997 and registered on
October 14, 2009, (see id., Attach. 6); and DRA313 was first published on
December 31, 1996 and registered on October 14, 2009, (see id., Attach.
7).
C.

Procedural History
Plaintiffs initially commenced this action in July 2010 against multiple

defendants, including the builders, realtors and homeowners of the
accused homes. (See Compl., Dkt. No. 1.) After various consultations
with Magistrate Judge Randolph F. Treece, and the filing of a Second

5

Amended Complaint, only T.P., Cicero, DeRaven, Sofia, Shelroc,6 and
Cillis remained. (See Dkt. Nos. 47, 51, 52, 53, 56, 61, 64, 68, 85; 2d Am.
Compl., Dkt. No. 60.)
In a Memorandum-Decision and Order dated August 6, 2011, the
court dismissed plaintiffs’ Second Amended Complaint, but granted them
leave to file a Third Amended Complaint. (See Dkt. No. 133.) Plaintiffs’
elected to do so, and filed their Third Amended Complaint on September 1,
2011. (See 3d Am. Compl..) Inexplicably, plaintiffs voluntarily dismissed
Shelroc and Cicero from the action,7 and the remaining defendants filed
dispositive motions. (See Dkt. Nos. 144, 146, 149, 151, 156.) Plaintiffs
cross-moved for partial summary judgment against T.P., Sofia and Cillis,
arguing, inter alia, that defendants’ homes were “substantially similar.”
(Dkt. Nos. 158, 159, 160.)
After reviewing the parties’ submissions, the court granted Cillis,
DeRaven and Sofia’s motions, holding that “plaintiffs’ and defendants’

6

Joseph M. Clark, Shelroc Homes, LLC, and Capital Framing, Inc. are collectively
referred to as Shelroc.
7

Despite the voluntary dismissal, plaintiffs commenced separate, but related actions,
against Cicero and Shelroc. See Zalewski et al. v. Shelroc Homes, LLC et al., No. 11-cv-1159;
Zalewski et al. v. Cicero Builder Dev., Inc. et al., No. 11-cv-1156. The case against Cicero
was consolidated on March 16, 2012. (See Dkt. No. 171.)

6

works are not substantially similar.” (Dkt. No. 168 at 10.) However, T.P.’s
motion for partial summary judgment, which did not address substantial
similarity, was denied as premature. (See id. at 10-12.) Thus, plaintiffs’
causes of action for copyright infringement of architectural works against
T.P., and unauthorized removal of copyright notices against T.P. and
Cicero, survived. (See 3d Am. Compl. ¶¶ 32-113; Compl. ¶¶ 18-41, 11-cv1156.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 56 is well established
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its decision in Wagner v. Swarts, No. 1:09-cv652, 2011 WL 5599571, at *4 (N.D.N.Y. Nov. 17, 2011).
IV. Discussion
To establish copyright infringement, “a plaintiff with a valid copyright
must demonstrate that: (1) the defendant has actually copied the plaintiff’s
work; and (2) the copying is illegal because a substantial similarity exists
between the defendant’s work and the protectible elements of plaintiff’s.”
Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63
(2d Cir. 2010) (internal quotation marks and citation omitted). Stated
7

another way, a plaintiff must first establish the validity of his copyright, and
then, “that the defendant, without authorization, copied the protected work.”
Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg., LLC, No.
4:10cv129, 2011 WL 4590003, at *7 (E.D. Va. Sept. 29, 2011). Evidence
of access and substantial similarity will suffice where actual copying cannot
be proven. See id. (citing Keeler Brass Co. v. Cont’l Brass Co., 862 F.2d
1063, 1065 (4th Cir. 1988)).
Relying on the court’s previous decision, T.P. and Cicero argue that
plaintiffs’ causes of action for copyright infringement fail as a matter of law
because the accused properties are not substantially similar to plaintiffs’
architectural works. (See Dkt. No. 176, Attach. 1 at 5-8; Dkt. No. 177,
Attach. 6 at 2-6.) In response, plaintiffs assert that the court’s previous
decision constituted legal error. (See Dkt. No. 181 at 19-20.) Specifically,
plaintiffs take exception with the court’s failure to address the originality of
their works, and request that the prior decision be ignored or amended.
(See id.) Furthermore, they aver that there are genuine issues of material
fact with respect to the question of substantial similarity, and finally, that
summary judgment is premature. (See id. at 13-18, 22-23.)
Addressing first the purported error in the court’s previous decision,
8

plaintiffs challenge the accuracy and completeness of the substantial
similarity analysis. (See id. at 5-12, 19-20.) While the conclusion was
correct, (see Dkt. No. 168 at 9-10), the steps in the substantial similarity
analysis were not fully articulated. Thus, for the sake of clarity, the court
exercises its discretion to amend only the reasoning in its previous
decision to include the full analysis discussed below.8 See Cusamano v.
Sobek, 604 F. Supp. 2d 416, 435 n.30 (N.D.N.Y. 2009). In so doing, the
court first discusses plaintiffs’ claim regarding the propriety of summary
judgment, followed by the availability and scope of copyright protection,
and ultimately, the substantial similarity between plaintiffs’ and defendants’
works.
A.

Propriety of Summary Judgment
Plaintiffs argue first that the court cannot weigh the evidence in

deciding the pending motions. (See Dkt. No. 181 at 13.) They further
claim that genuine issues of fact remain with respect to whether their works

8

With the exception of one home listed in count four of the Third Amended Complaint,
the instant motions require a review of the same accused properties discussed in the court’s
previous decision. However, after conducting the requisite visual comparison in accordance
with the substantial similarity test below, the court discerns no error in its previous holding
insofar as the copyrightable elements of plaintiffs’ DRA212 drawing are not substantially
similar to defendants’ design. (Compare Dkt. No. 146, Attach. 4, with Dkt. No. 138, Attach. 3.)
It follows that recision of the previous Memorandum-Decision and Order is unnecessary.

9

are substantially similar to the allegedly infringing designs. (See id. at 1417.) Lastly, plaintiffs contend that discovery is necessary to “disclose
additional as-built deviations,” and to obtain further evidence to counter
defendants’ motions. (Id. at 16-17; Dkt. No. 181, Attach. 1 ¶¶ 46-47.) The
court disagrees on all accounts.
With respect to the need for discovery, plaintiffs’ previously crossmoved for summary judgment on the basis of substantial similarity.9 (See
Dkt. Nos. 158, 159, 160.) In so doing, plaintiffs implicitly represented that
there were no genuine issues of material fact and they, as the moving
party, were entitled judgment as a matter of law. See Fed. R. Civ. P. 56(a).
It follows that their current argument regarding the need for discovery is
both disingenuous and unpersuasive.
While traditionally reserved for the trier of fact, “[t]he question of
substantial similarity is by no means exclusively reserved for resolution by
a jury.” Gaito Architecture, 602 F.3d at 63. Indeed, “it is entirely
appropriate for a district court to resolve that question as a matter of law,
[where] . . . ‘no reasonable jury, properly instructed, could find that the two

9

Pursuant to Fed. R. Civ. P. 56(c)(3), the court exercises its discretion to “consider
other materials in the record.”

10

works are substantially similar.’” Id. (quoting Warner Bros. Inc. v. Am.
Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983)). Because “the works
themselves supersede and control contrary descriptions of them,” Walker
v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir. 1986), discovery is
unnecessary, where, as here, the court can conduct the requisite visual
comparison. Gaito Architecture, 602 F.3d at 64. Moreover, in the case of
architectural works—which are akin to compilations10—summary judgment
“is often more reliabl[e] and accurate[].” Intervest Constr., Inc. v.
Canterbury Estate Homes, Inc., 554 F.3d 914, 920 (11th Cir. 2008). “This
is so because a judge is better able to separate original expression from
the non-original elements of a work where the copying of the latter is not
protectable and the copying of the former is protectable.” Id. at 920.
Here, the parties provided the copyrighted works, (see Dkt. No. 138,
Attachs. 1-7), the allegedly infringing works, (see, e.g., Dkt. No. 176,
Attachs. 3-24; Dkt. No. 177, Attachs. 4-5; Dkt. No. 181, Attachs. 2-3),
images of the exteriors of the as-built homes, (see Dkt. No. 181, Attach. 4),
and screenshots of the relevant websites, (see Dkt. No. 181, Attachs. 512). Despite their contrary position in the face of T.P. and Cicero’s
10

See infra Part IV.C.1.

11

motions, plaintiffs repeatedly stated that “[w]hen a court is called upon to
consider whether the works are substantially similar, only a visual
comparison of the works is required.” (Dkt. No. 158, Attach. 1 at 13; Dkt.
No. 159, Attach. 1 at 12; Dkt. No. 160, Attach. 1 at 10 (emphasis added)).
Given the technical nature of the inquiry before it, and the comprehensive
submissions by the parties, the court is not only capable of conducting the
requisite visual comparison, but also better suited to do so. See Gaito
Architecture, 602 F.3d at 64; Intervest, 554 F.3d at 920.
B.

Availability and Scope of Copyright Protection
Turning to the issue of originality, plaintiffs aver that T.P. and Cicero

conceded that their works are original. (See Dkt. No. 181 at 7-8.) T.P.’s
reply refutes this claim, arguing that it challenged the originality of the
works in its previous motion for summary judgment. (See Dkt. No. 183 at
2.) Because the originality inquiry is an “indispensable step of identifying
the protectable aspects of plaintiffs’ designs,” the court discusses it first.
(Dkt. No. 181 at 5.) In so doing, it concludes that plaintiffs’ home plans are
entitled to, at best, thin copyright protection.
1.

Prima Facie Evidence of Validity

Establishing copyright infringement requires proof that the plaintiff
12

owns a valid copyright, and “‘copying of constituent elements of the work
that are original.’” Boisson v. Banian, Ltd., 273 F.3d 262, 267 (2d Cir.
2001) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,
361 (1991)). Normally, these requirements are satisfied by the certificate
of copyright registration, which, if “‘made before or within five years after
first publication of the work’” constitutes “‘prima facie evidence of the
validity of the copyright . . . and of the facts stated in the certificate.’” 17
U.S.C. § 410(c). But, whereas here, the certificates were issued more than
five years after the date of first publication, (see Dkt. No. 138, Attachs. 17), “[t]he evidentiary weight to be accorded [to them] . . . shall be within the
discretion of the court.” 17 U.S.C. § 410(c). When considered in light of
“the Copyright Office’s practice of summarily issuing registrations,”
Universal Furniture Int’l, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417,
428 (4th Cir. 2010), the certificates here are, standing alone, insufficient.
See Home Design Servs., Inc. v. Starwood Constr., Inc., 801 F. Supp. 2d
1111, 1116-17 (D. Colo. 2011); CJ Prods. LLC v. Snuggly Plushez LLC,
809 F. Supp. 2d 127, 143 (E.D.N.Y. 2011). As such, the burden remains

13

with plaintiffs to establish the validity and originality of their drawings.11 But
see CJ Prods. LLC, 809 F. Supp. 2d at 142 (stating that where plaintiff has
established a prima case of validity, “the burden to prove otherwise shifts
to the defendants”).
Here, the validity of the registrations is uncontested as neither T.P.
nor Cicero challenges plaintiffs’ compliance with, inter alia, 37 C.F.R. §
202.11. Absent evidence to the contrary, the court accepts, for the
purposes of these motions, that plaintiffs’ registrations are valid. However,
in light of T.P.’s argument regarding the lack of originality, the court must
determine whether plaintiffs’ works are entitled to copyright protection.
2.

Originality of Home Plans

Originality is “‘the sine qua non of copyright,’” as copyright protection
only extends to the “components of a work that are original to the author.”
Boisson, 273 F.3d at 268 (quoting Feist, 499 U.S. at 348). While originality
is not synonymous with novelty or uniqueness, the work in question must
be “independently created by its author, . . . not copied from pre-existing
works, and . . . come[] from the exercise of the creative powers of the

11

Because the burden remains with plaintiffs, their argument regarding T.P. and
Cicero’s failure to proffer evidence to challenge the originality of the drawings in question is
meritless. (See Dkt. No. 181 at 7.)

14

author’s mind.” Id. Simply put, the work must be independently created,
and possess “at least some minimal degree of creativity.” Feist, 499 U.S.
at 345; see Axelrod & Cherveny Architects, P.C. v. Winmar Homes, No.
2:05-cv-711-ENV-ETB, 2007 WL 708798, at *9 (E.D.N.Y. Mar. 6, 2007)
(“For better or worse, courts have not required an ‘especially elevated’
level of originality in the architectural realm.”).
Here, the sole evidence12 submitted by plaintiffs to establish
originality is the affidavit of Zalewski, in which he avers that each of his
works is an original, and is the byproduct of his “imagination, experience
and know-how.” (Dkt. No. 181, Attach. 1 ¶ 28.) He further claims that
each floor plan and elevation view are “original in their own right,” as are
the “overall form, the arrangement and composition of spaces and
elements, and many portions and design elements.” (Id.) Notwithstanding
T.P.’s attempt to cast doubt on the originality of plaintiffs’ designs, (see
Dkt. No. 183 at 2-6), the evidence submitted is insufficient to justify a
finding of unoriginality. See Axelrod, 2007 WL 708798, at *10 (stating that
12

Though Zalewski also contends that he needs discovery to obtain additional
“evidence regarding the originality of [his] designs,” (Dkt. No. 181, Attach. 1 ¶ 46(e)), his
affidavits in support of his previous cross-motions for summary judgment, which are essentially
identical, contained no such averment, (see, e.g., 160, Attach. 3). Again, the court is
unpersuaded, as the question of copyrightability, which necessarily encompasses originality, is
one of law. See Darden v. Peters, 402 F. Supp. 2d 638, 641 (E.D.N.C. 2005).

15

“[t]he architectural work need not be novel; bluntly, the vast majority of
works qualify, no matter how crude, humble, or obvious.”) (internal
quotation marks and citation omitted). But, establishing prima facie
originality does not automatically deem a work protected.
3.

Conceptual Nature of Plaintiffs’ Home Plans

Clearly, unoriginal works are unprotectable. See Boisson, 273 F.3d
at 268. “Likewise an element within a work may be unprotectible even if
other elements, or the work as a whole, warrant protection.” Id. Where the
material is “in the public domain,” id., or is merely an idea, concept or
process, copyright protection—“even against intentional copying”—is
unavailable. Attia v. Soc’y of the N.Y. Hosp., 201 F.3d 50, 53-54 (2d Cir.
1999); see 17 U.S.C. § 102(b) (codifying nonprotectible subject-matter).
However, an author’s expression of an idea is protected. See Attia, 201
F.3d at 54. Though no bright-line rule exists, “the inquiry often turns on the
level of abstraction or generalization of the works being compared.” Id.
In the realm of functional works, such as architectural drawings,
distinguishing between ideas and expressions is especially challenging.
See id. at 55. Generally, “notions of where to place functional elements, . .
. and what methods of construction and principles of engineering to rely
16

on” are unprotected. Id. Conversely, a designer who appropriates both
those ideas and “the author’s personal expression of them” may be liable
for infringement. Id.
In Attia, 201 F.3d at 56, the Second Circuit distinguished between
architectural drawings that were sufficiently specific to enable construction,
and those that were not. Although the Circuit disavowed the notion that
“only final construction drawings can contain protected expression,” it
characterized the following as “rough ideas of a general nature”:
The placement of a new building, the use of truss technology to
transfer weight, the alignment of floor heights and corridors, the
creation of a continuous traffic loop through the hospital complex,
the placement of emergency services and ambulance parking
along that roadway, the location of a pedestrian area and of
mechanical equipment, [and] the arrangement of space on
particular floors[.]
Id. at 56-57. Calling the plaintiff’s drawings “highly preliminary and
generalized,” the Circuit held that the “allegedly copied matter consisted
only of ideas and concepts, not of protected expression.” Id. at 55, 57.
Here, the home plans for DRA212, DRA216a and DRA313, are best
described as sketches, not plans. (See Dkt. No. 138, Attachs. 2, 4, 7.)
When compared to either T.P.’s allegedly infringing plans, (see Dkt. No.
176, Attachs. 3-24), or even the remainder of plaintiffs’, (see Dkt. No. 138,
17

Attachs. 1, 3, 5-6), the conceptual nature of these drawings is readily
apparent. Despite Zalewski’s claim to the contrary, (see Dkt. No. 181 at 9,
Attach. 1 ¶ 31), DRA212, DRA216a and DRA313 “are barely a first step
toward the realization of a plan,”13 Attia, 201 F.3d at 56, and thus, are
ineligible for copyright protection. See id. at 57. As such, plaintiffs’ claims
regarding the alleged infringement of DRA212, DRA216a and DRA313 are
dismissed; the scope of protection for the remaining works must now be
delineated.
4.

Scope of Copyright Protection

“Copyright protection extends to ‘original works of authorship fixed in
any tangible medium of expression.’” Olsen, 2011 WL 4590003, at *9
(citing 17 U.S.C. §§ 101-122). Following the passage of the Architectural
Works Copyright Protection Act (AWCPA), “architectural works were added
to the list of copyrightable works of authorship.” Axelrod, 2007 WL
708798, at *2 (citing 17 U.S.C. § 102(a)(8)); see 17 U.S.C. § 101 (defining
an “architectural work” as “the design of a building as embodied in any
tangible medium of expression, including a building, architectural plans, or

13

For example, the affidavit of former-defendant Cillis notes several critical elements
that are missing from DRA212. (See Dkt. No. 146, Attach. 1 ¶ 6.)

18

drawings”). Although “the overall form as well as the arrangement and
composition of spaces and elements” are included in the definition,
“individual standard features, such as common windows, doors, and other
staple building components,” H.R. Rep. No 101-735 (1990), reprinted in
1990 U.S.C.C.A.N. 6935, 6949, are explicitly excluded. 17 U.S.C. § 101;
see 37 C.F.R. § 202.11(d)(2) (noting that “[s]tandard configurations of
spaces” are noncopryrightable).
The scope of protection for architectural works is further limited by
the “merger doctrine,” which recognizes that certain ideas “can only be
expressed in a very limited number of ways.” Home Design, 801 F. Supp.
2d at 1118-19. Likewise, design elements that are dictated by market
forces, building codes and functional demands may also be unprotected.
See id. at 1119. In spite of the restrictions on individual design elements,
Congress’ inclusion of the phrase “arrangement and composition of spaces
and elements” demonstrates their understanding that “creativity in
architecture frequently takes the form of a selection, coordination, or
arrangement of unprotectible elements into an original, protectible whole.”
Intervest, 554 F.3d at 919. Thus, irrespective of the protection accorded to
the individual design elements, “the gestalt of the plans” are protected.
19

Axelrod, 2007 WL 708798, at *11 (internal quotation marks and citations
omitted).
Relevantly, in Olsen, 2011 WL 4590003, at *4, the district court
examined the history of Colonial architecture as a means of ascertaining
design elements which were not copyrightable. Among other factors, the
court noted that features that are “essential or common to the architectural
style within which the builder designed the structure in question” are
unprotected. Id. at *11. In Colonial Georgian architecture, such features
include:
a style generally characterized by symmetry; aligned windows;
gambrel, gabled, or hipped roofs; paneled doors accentuated by
classical pilasters and a proportioned, pedimented entablature;
rectangular or half-round transom lights, side lights, and elliptical
fanlights; double-hung windows typically six over six; and front
entrances framed by pilasters and an entablature but no covered
porch supported by columns.14
14

Additional architectural features of this style include:

[i]nteriors [with] central halls, elaborately turned stair balustrades, paneled walls
painted in warm colours and white plaster ceilings . . . curved interior walls, such
as in staircase halls; arches on landings and passageways; ornamental Venetian
windows; doorways with pilasters separating the door from side lights; and fanlight
arches covering the entire doorway . . . battlemented and indented parapets;
pointed casement windows with tracery in the heads, margin lights and drip moulds
above them; pointed doorcases with shafts or reeding up the sides and meeting
at the top in an arch; hooded or unhooded wrought-or cast-iron balconies on
windows and porches; shallow, curved bays often running the full height of the
building; and shallow-pitched roofs.
Olsen, 2011 WL 4590003, at *4 (internal quotation marks and citations omitted).

20

Id. at *4. Although the use of standard colonial features did not “render the
copyrighted work unoriginal,” the district court held that the “heavy
incorporation of this architectural style into its design . . . substantially
dampen[ed] the degree of protection to which” the plaintiff was entitled. Id.
at *10; accord Trek Leasing, Inc. v. United States, 66 Fed. Cl. 8, 13 (Fed.
Cl. 2005) (stating that the “hallmarks of a popular architectural style . . . are
not protectable”).
In the instant case, plaintiffs’ Complaints make no reference to any
single feature that is individually entitled to copyright protection.15 (See
generally 3d Am. Compl.; Compl., Dkt. No. 1, 11-cv-1156.) Regardless of
the reasoning behind this omission—if it was in fact an omission16—the
court, having examined plaintiffs’ works, is unable to identify any
architectural elements which, in and of themselves, are entitled to
copyright protection. (See Dkt. No. 138, Attachs. 1-7.) That being said,
the works are not without protection. Although plaintiffs were heavily

15

Zalewski’s assertion that the elevation views contain “unique” features, (Dkt. No.
181, Attach. 1 ¶ 14), without identifying or describing what the features are, is insufficient to
survive the heightened pleading standard for copyrights. (See Dkt. No. 133 at 8-11.)
16

A careful review of plaintiffs’ submissions demonstrates their understanding that only
“[t]he arrangement of spaces on [their] floor plans” is copyrightable. (See Dkt. No. 181 at 9.)

21

influenced by, inter alia, the Colonial style of architecture, this reliance
does not render their works unoriginal or unprotectable, as the requisite
level of creativity here lies in the combination and arrangements of
otherwise unprotected features. See Olsen, 2011 WL 4590003, at *10.
Accordingly, the court concludes that the scope of the copyright protection
in this case is limited to the way in which plaintiffs selected, coordinated
and arranged “unprotectible [sic] elements into an original, protectible [sic]
whole.”17 Intervest, 554 F.3d at 919 (internal quotation marks and citation
omitted). It follows that the substantial similarity analysis remains the
dispositive inquiry.
C.

Substantial Similarity Analysis
At its core, this case hinges on a determination of substantial

similarity. To prove unauthorized copying, plaintiffs “must establish
‘substantial similarity’” by showing: “(I) that it was protected expression in
the earlier work that was copied and (ii) that the amount that was copied is
‘more than de minimis.’” Tufenkian Imp./Exp. Ventures, Inc. v. Einstein

17

Even if a subsequent court finds that DRA212, DRA216a and DRA313 are
copyrightable, they too are only entitled to limited copyright protection, and the lack of
substantial similarity between these works and the accused properties, as analyzed below,
provides an alternative basis for summary judgment.

22

Moomjy, Inc., 338 F.3d 127, 131 (2d Cir. 2003) (quoting Castle Rock
Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 137-38 (2d Cir.
1998)). Though the parties agree that this inquiry is dispositive, their
submissions evidence conflicting views on how the test should be applied,
what images should be considered, and ultimately, whether the works in
question are substantially similar. The court addresses each of these
arguments in turn.
1.

Substantial Similarity in the Context of Architectural Works

To determine whether two works are substantially similar, courts
normally apply the “ordinary observer test,” which asks “whether an
ordinary observer, unless he set out to detect the disparities, would be
disposed to overlook them, and regard [the] aesthetic appeal as the same.”
Gaito Architecture, 602 F.3d at 66 (internal quotation marks and citation
omitted)). This test, however, concerns only those elements which are
entitled to copyright protection. See Knitwaves, Inc. v. Lollytogs Ltd. (Inc.),
71 F.3d 996, 1002 (2d Cir. 1995). Necessarily then, a more discerning
analysis—i.e., one focused on solely the protectible elements—is required
for works that contain both protected and unprotected features. See Gaito
Architecture, 602 F.3d at 66. Yet, infringement encompasses more than
23

just literal copying. See id. Where the alleged infringer has
misappropriated the original way in which the author has selected,
coordinated, and arranged the elements of his or her work,” this too
constitutes unauthorized copying. Id. (internal quotation marks and
citations omitted).
Notably, several courts have analogized architectural works to
compilations. See Intervest, 554 F.3d at 919; Olsen, 2011 WL 4590003, at
*10; Home Design, 801 F. Supp. 2d at 1118. This analogy may not always
be appropriate, particularly with respect to individual elements that are,
standing alone, protectable. However, in this case—where the only
copyrightable feature of plaintiffs’ works is the selection, coordination and
arrangement of unprotected elements—consideration of the protection
afforded to compilations is instructive.
In Intervest, the Eleventh Circuit highlighted that, in defining
architectural works, Congress paralleled the definition of a “compilation” by
including the phrase “‘the arrangement and composition of spaces and
elements in the design.’” 554 F.3d at 919 (quoting 17 U.S.C. § 101
(defining a “compilation” as “a work formed by the collection and
assembling of preexisting materials or of data that are selected,
24

coordinated, or arranged in such a way that the resulting work as a whole
constitutes an original work of authorship”)). Since only the “architect’s
original combination or arrangement” of uncopyrighted features deserved
protection, the court labeled the work in question a compilation and applied
“thin” copyright protection. Id. (internal quotation marks and citation
omitted); accord Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d
1218, 1225 (11th Cir. 2008)).
Building on the Second Circuit’s guidance with respect to the need to
compare the “total concept and overall feel” of the works, Gaito
Architecture, 602 F.3d at 66 (internal quotation marks and citations
omitted), the court agrees that an architectural work, whose entitlement to
copyright protection is grounded exclusively in the arrangement and
composition of unprotected elements, is legally indistinguishable from a
compilation. Admittedly, this approach places a heavier burden on
plaintiffs. See 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
§ 13.03[A][4] (Matthew Bender, Rev. Ed.) (hereinafter “Nimmer”) (noting
that “if substantial similarity is the normal measure required to demonstrate
infringement, ‘supersubstantial’ similarity must pertain when dealing with
works subject to only ‘thin protection’”). Though this elevated burden “may
25

seem unfair,” such is the constitutionally rooted “essence of copyright,” the
primary purpose of which is to promote progress, not reward labor. Feist,
499 U.S. at 349 (internal quotation marks and citation omitted). Therefore,
in this case, the narrow scope of protectable expression necessitates that
plaintiffs show something akin to “near identity” between the works in
question to prevail. Concrete Mach. Co. v. Classic Lawn Ornaments, Inc.,
843 F.2d 600, 606 (1st Cir. 1988) (internal quotation marks and citation
omitted); see Feist, 499 U.S. at 349 (requiring the “same selection and
arrangement” to demonstrate infringement of a compilation); see also
Nimmer § 13.03[A][4] (“More similarity is required when less protectable
matter is at issue.”); cf. Apple Computer, Inc. v. Microsoft Corp., 35 F.3d
1435, 1439 (9th Cir. 1994) (holding that “the appropriate standard for illicit
copying [of works comprised of only unprotectable or licensed elements] is
virtual identity”).
Here, none of the parties’ submissions provide an in-depth analysis
of the substantial similarity test. (See generally Dkt. Nos. 176, Attach. 1;
Dkt. No. 177, Attach. 6; Dkt. No. 181.) Nevertheless, plaintiffs raise a
noteworthy point in their response with respect to the relevance of the
dissimilarities between the works. (See Dkt. No. 181 at 18.) Specifically,
26

plaintiffs argue that defendants’ recitation of differences18 is irrelevant as
the similarity between the works controls. (See id.)
In general, plaintiffs are correct: “it is ‘entirely immaterial that, in
many respects, plaintiff’s and defendants’ works are dissimilar, if in other
respects, similarity as to a substantial element of plaintiff’s work can be
shown.’” Attia, 201 F.3d at 57-58 (quoting Nimmer § 13.03[B]). But, unlike
plaintiffs, (see Dkt. No. 181 at 18), the Attia court did not stop with that
statement; in fact, the very next sentence states: “Nonetheless,
dissimilarity can be important in determining whether there is substantial
similarity.” Attia, 201 F.3d at 58; see Durham Indus., Inc. v. Tomy Corp.,
630 F.2d 905, 913 (2d Cir. 1980) (recognizing “that numerous differences
tend to undercut substantial similarity”); Concrete Mach., 843 F.2d at 608
(stating that “when the points of dissimilarity not only exceed the points of
similarity, but indicate that the remaining points of similarity are . . . of
minimal importance . . . no infringement results”) (internal quotation marks
and citations omitted)); accord Dream Custom Homes, Inc. v. Modern Day
18

In support of their respective motions, both T.P. and Cicero provided the court with a
recitation of the differences between the accused works and plaintiffs’ home plans. (See Dkt.
No. 176, Attachs. 3-28; Dkt. No. 177, Attach. 6 at 4-6.) These, along with the affidavits
previously provided by DeRaven and Sofia, (see Dkt. No. 149, Attach. 5-14; Dkt. No. 156,
Attach. 1 ¶¶ 12-276), articulate numerous differences between plaintiffs’ and defendants’
works.

27

Constr., Inc., 773 F. Supp. 2d 1288, 1308 (M.D. Fla. 2011). Despite
plaintiffs’ selective citation to Circuit precedent, in this case, where the
works are “dissimilar in the very respects in which [they are] claimed to be
similar,” the dissimilarities “obviously influence the conclusion as to
whether the claimed similarity in fact exists or is substantial.” Attia, 201
F.3d at 58.
In sum, due to the limited scope of protectable expression in
plaintiffs’ works, the protection afforded is thin, see Feist, 499 U.S. at 349,
and a showing of near identity is required to prevail, see Concrete Mach.,
843 F.2d at 606.
2.

Use of Mirror Images in Visual Comparison

Before conducting the requisite visual comparisons, the court must
address the propriety of using mirror images of plaintiffs’ works in
determining substantial similarity. This issue arose after plaintiffs included
side-by-side comparisons of both the copyrighted works, and mirror images
of the elevation views and floor plans in their response. (See Dkt. No. 181,
Attachs. 2-3.) Plaintiffs contend, albeit without citation to any authority
whatsoever, that the “mirror image[s] are one-in-the-same” as the original
design. (Dkt. No. 181 at 13; see Dkt. No. 181, Attach. 1 ¶ 39.) In spite of
28

T.P. and Cicero’s failure to address this point in their replies, (see generally
Dkt. Nos. 182, 183), all parties19 were permitted to file supplemental briefs
addressing this issue. (See Dkt. No. 184 at 3.)
After reviewing the parties’ submissions, the court concludes that
there is no bright-line rule on the use or relevance of mirror images. (See
generally Dkt. Nos. 186-189.) Moreover, given the facts of this case, the
court deems it inappropriate to pronounce one. Though the court is
unwilling to endorse plaintiffs’ unsubstantiated assertion that the “mirror
image[s] are one-in-the-same” as the original design, (Dkt. No. 181 at 13),
the images are, in the context of this case, at least worthy of consideration.
3.

Comparison of the Works in Question

The parties’ views on the issue of substantial similarity is obvious.
Plaintiffs contend that the “infringing homes copy . . . the floor plans[,] . . .
the elevation views[,] . . . the arrangement and composition of spaces and
architectural features[,] . . . the selection, coordination, and arrangement of
rooms, windows, doors, closets, stairs and other interior and exterior
architectural features . . ., and include literal copying of substantial portions

19

Given that plaintiffs asked the court to amend its previous ruling, (see Dkt. No. 181
at 19), DeRaven, Sofia and Cillis were also permitted to file supplemental briefs. (See Dkt.
No. 184 at 3-4.)

29

of the copyrighted works.” (3d Am. Compl. ¶¶ 52, 80, 104, 131; Compl. ¶
27, Dkt. No. 1, 11-cv-1156.) Quite simply, T.P. and Cicero disagree. So
too does the court.
To aide in the substantial similarity analysis, the court received,
among other things, affidavits from both plaintiffs and defendants
discussing the similarities and differences in the competing works. (See
Dkt. No. 181, Attach. 1; Dkt. No. 176, Attach. 2-28; see also Dkt. No. 149,
Attach. 5-14; Dkt. No. 156, Attach. 1 ¶¶ 12-276.) Most importantly though,
copies of all of the works in question, including exterior pictures of the asbuilt homes20 and the allegedly infringing advertisements, were submitted.
(See Dkt. No. 138, Attachs. 1-7; Dkt. No. 176, Attachs. 3-28; Dkt. No. 177,
Attachs. 4-5; Dkt. No. 181, Attachs. 2-12.) Using these images, which
“supersede and control contrary descriptions of them,” Walker, 784 F.2d at
52, and the court’s “good eyes and common sense,” Hamil Am., Inc. v.
GFI, 193 F.3d 92, 102 (2d Cir. 1999) (alteration omitted), the following
visual comparisons were conducted:
20

Although the court appreciates that it is dealing with architectural works, it is
unpersuaded that additional discovery is needed to analyze the as-built homes. (See Dkt. No.
181 at 17.) Among other reasons, it is illogical to compare plaintiffs’ two-dimensional designs
to anything other than defendants’ two-dimensional drawings. Zalewski himself even
acknowledges that it is possible to perceive a three-dimensional house from its twodimensional drawing. (See Dkt. No. 181, Attach. 1 ¶ 2.)

30

(1) with respect to 37 Jo Ann Court, (see 3d Am. Compl. ¶¶ 46(a),
50), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 10), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 3 at 62-64), and to the image of the
exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 22);
(2) with respect to 10 Peachtree Lane, (see 3d Am. Compl. ¶¶ 46(b),
50), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 11), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 3 at 53-55), and to the image of the
exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 19);
(3) with respect to 6 Peachtree Lane, (see 3d Am. Compl. ¶¶ 46(c),
49), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 2), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 7), the side-by-side comparisons submitted by plaintiffs, (see
Dkt. No. 181, Attach. 3 at 44-46), and to the image of the exterior of
the as-built home, (see Dkt. No. 181, Attach. 4 at 16);
(4) with respect to 1 Peachtree Lane, (see 3d Am. Compl. ¶¶ 46(d),
49), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 2), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 6), the side-by-side comparisons submitted by plaintiffs, (see
Dkt. No. 181, Attach. 3 at 41-43), and to the image of the exterior of
the as-built home, (see Dkt. No. 181, Attach. 4 at 15);
(5) with respect to 5 Peachtree Lane, (see 3d Am. Compl. ¶¶ 46(e),
51), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 7), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 12), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 3 at 50-52), and to the image of the
exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 18);
(6) with respect to 16 Peachtree Lane, (see 3d Am. Compl. ¶¶ 46(f),
49), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
31

Attach. 2), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 8), the side-by-side comparisons submitted by plaintiffs, (see
Dkt. No. 181, Attach. 3 at 47-49), and to the image of the exterior of
the as-built home, (see Dkt. No. 181, Attach. 4 at 17);
(7) with respect to 14 Peachtree Lane, (see 3d Am. Compl. ¶¶ 46(g),
48), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 1), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 4), the side-by-side comparisons submitted by plaintiffs, (see
Dkt. No. 181, Attach. 3 at 56-58), and to the image of the exterior of
the as-built home, (see Dkt. No. 181, Attach. 4 at 20);
(8) with respect to 35 Jo Ann Court, (see 3d Am. Compl. ¶¶ 46(h),
48), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 1), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 3), the side-by-side comparisons submitted by plaintiffs, (see
Dkt. No. 181, Attach. 3 at 59-61), and to the image of the exterior of
the as-built home, (see Dkt. No. 181, Attach. 4 at 21);
(9) with respect to 24 Arch Avenue, (see 3d Am. Compl. ¶¶ 46(I), 50),
the court compared plaintiffs’ home plan, (see Dkt. No. 138, Attach.
6), to the plans for defendants’ home, (see Dkt. No. 176, Attach. 9),
the side-by-side comparisons submitted by plaintiffs, (see Dkt. No.
181, Attach. 2 at 35-37), and to the image of the exterior of the asbuilt home, (see Dkt. No. 181, Attach. 4 at 13);
(10) with respect to 23 Thoroughbred Circle, (see 3d Am. Compl. ¶¶
46(j), 48), the court compared plaintiffs’ home plan, (see Dkt. No.
138, Attach. 1), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 5), the side-by-side comparisons submitted by plaintiffs, (see
Dkt. No. 181, Attach. 3 at 65-67), and to the image of the exterior of
the as-built home, (see Dkt. No. 181, Attach. 4 at 23);
(11) with respect to 23 Timber Lane, (see 3d Am. Compl. ¶¶ 77(a),
79), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 13), the side-by-side comparisons submitted by plaintiffs,
32

(see Dkt. No. 181, Attach. 2 at 8-10), and to the image of the exterior
of the as-built home, (see Dkt. No. 181, Attach. 4 at 4);
(12) with respect to 20 Timber Lane, (see 3d Am. Compl. ¶¶ 77(b),
79), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 14), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 2 at 6-7; Dkt. No. 185, Attach. 1 at 1), and
to the image of the exterior of the as-built home, (see Dkt. No. 181,
Attach. 4 at 3);
(13) with respect to 24 Timber Lane, (see 3d Am. Compl. ¶¶ 77(c),
79), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 15), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 2 at 11-13), and to the image of the
exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 5);
(14) with respect to 57 Henderson Road, (see 3d Am. Compl. ¶¶
77(d), 79), the court compared plaintiffs’ home plan, (see Dkt. No.
138, Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 16), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 2 at 26-28), and to the image of the
exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 10);
(15) with respect to 71 Patterson Drive, (see 3d Am. Compl. ¶¶ 77(e),
79), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 17), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 2 at 23-25), and to the image of the
exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 9);
(16) with respect to 42 Patterson Drive, (see 3d Am. Compl. ¶¶ 77(f),
79), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 18), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 2 at 17-19), and to the image of the
33

exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 7);
(17) with respect to 30 Timber Lane, (see 3d Am. Compl. ¶¶ 77(g),
79), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 19), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 2 at 14-16), and to the image of the
exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 6);
(18) with respect to 73 Hendersen Road, (see 3d Am. Compl. ¶¶
77(h), 79), the court compared plaintiffs’ home plan, (see Dkt. No.
138, Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 20), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 2 at 29-31), and to the image of the
exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 11);
(19) with respect to 564 Snyders Lake Road, (see 3d Am. Compl. ¶¶
77(I), 79), the court compared plaintiffs’ home plan, (see Dkt. No.
138, Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 21), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 3 at 38-40), and to the image of the
exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 14);
(20) with respect to 45 Patterson Drive, (see 3d Am. Compl. ¶¶ 77(j),
79), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 22), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 2 at 20-22), and to the image of the
exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 8);
(21) with respect to 19 Timber Lane, (see 3d Am. Compl. ¶¶ 77(k),
79), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 23), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 2 at 2-4), and to the image of the exterior
of the as-built home, (see Dkt. No. 181, Attach. 4 at 2);

34

(22) with respect to 14 Dominco Drive, (see 3d Am. Compl. ¶¶ 77(l),
79), the court compared plaintiffs’ home plan, (see Dkt. No. 138,
Attach. 6), to the plans for defendants’ home, (see Dkt. No. 176,
Attach. 24), the side-by-side comparisons submitted by plaintiffs,
(see Dkt. No. 181, Attach. 2 at 33-34; Dkt. No. 185, Attach. 1 at 2),
and to the image of the exterior of the as-built home, (see Dkt. No.
181, Attach. 4 at 12);
(23) with respect to 9 Kaleen Drive, (see Compl. ¶ 25, Dkt. No. 1, 11cv-1156), the court compared plaintiffs’ home plan, (see Dkt. No.
138, Attach. 2), to the the side-by-side comparisons submitted by
plaintiffs, (see Dkt. No. 181, Attach. 3 at 68-70), and to the image of
the exterior of the as-built home, (see Dkt. No. 181, Attach. 4 at 24);
(24) with respect to allegedly infringing advertisements by T.P. of
DRA210, (see 3d Am. Compl. ¶ 99), the court compared plaintiffs’
home plan, (see Dkt. No. 138, Attach. 1), to the images they
submitted of the advertisements, (see Dkt. No. 181, Attach. 5);
(25) with respect to allegedly infringing advertisements by T.P. of
DRA211, including the model named “Tallahassee,” (see 3d Am.
Compl. ¶¶ 99, 102), the court compared plaintiffs’ home plan, (see
Dkt. No. 138, Attach. 2), to the images they submitted of the
advertisements, (see Dkt. No. 181, Attach. 6); and defendants’
screenshots, (see Dkt. No. 176, Attach. 25);
(26) with respect to allegedly infringing advertisements by T.P. of
DRA216, including the model named “Savannah,” (see 3d Am.
Compl. ¶¶ 99, 102), the court compared plaintiffs’ home plan, (see
Dkt. No. 138, Attachs. 4-5), to the images they submitted of the
advertisements, (see Dkt. No. 181, Attach. 8); and defendants’
screenshots, (see Dkt. No. 176, Attach. 28);
(27) with respect to allegedly infringing advertisements by T.P. of
DRA217, including the models named “Mackenzie” and “Monroe,”
(see 3d Am. Compl. ¶¶ 99, 102), the court compared plaintiffs’ home
plan, (see Dkt. No. 138, Attach. 6), to the images they submitted of
35

the advertisements, (see Dkt. No. 181, Attach. 9); and defendants’
screenshots, (see Dkt. No. 176, Attachs. 26-27);
(28) with respect to allegedly infringing advertisements by T.P. of
DRA313,21 (see 3d Am. Compl. ¶ 99), the court compared plaintiffs’
home plan, (see Dkt. No. 138, Attach. 7), to the images they
submitted of the advertisements, (see Dkt. No. 181, Attach. 10);
(29) with respect to allegedly infringing advertisements by Cicero of
DRA211, (see Compl. ¶¶ 28-31, Dkt. No. 1, 11-cv-1156), the court
compared plaintiffs’ home plan, (see Dkt. No. 138, Attach. 2), to the
images they submitted of the advertisements, (see Dkt. No. 181,
Attach. 11); and defendants’ exhibits, (see Dkt. No. 177, Attach. 4);
and
(30) with respect to allegedly infringing advertisements by Cicero of
DRA217, (see Compl. ¶¶ 28-31, Dkt. No. 1, 11-cv-1156), the court
compared plaintiffs’ home plan, (see Dkt. No. 138, Attach. 6), to the
images they submitted of the advertisements, (see Dkt. No. 181,
Attach. 12); and defendants’ exhibits, (see Dkt. No. 177, Attach. 5).
Notably, the court observed, among other distinctions, the differences in:
room dimensions and shapes; the overall square footage of the homes;
window and door placements; the types of doors and windows; the use of
keystones and pediments; the pitch and size of the roofs; the garage door
frames; the layout of the rooms; the locations and shapes of various
fixtures; the shapes of the staircases; the dimension and design of the

21

Plaintiffs’ exhibit appears to include a typographical error in that it includes alleged
infringements of DRA316. (See Dkt. No. 181, Attach. 10.) However, DRA316 is not a part of
this action, and thus, the court assumes that the exhibit shows the purported infringements of
DRA313. (See 3d Am. Compl. ¶ 99.)

36

walls; and the inclusion of chimneys, gables, stoops, columns and porches.
Notwithstanding the multitude of differences between the works, the
court’s comparison revealed some common features. However, the
overwhelming majority of the similarities can be attributed to the fact that
both plaintiffs’ and defendants’ works are heavily influenced by, and
incorporate hallmark features of, Colonial architecture. See Olsen, 2011
WL 4590003, at *4. Likewise, both sets of works include “standard
option[s],” (Dkt. No. 181, Attach. 1 ¶ 18), which are also unprotected. Any
remaining similarities, of which there are few, are de minimus in light of the
vast dissimilarities between the works.22 See Oravec, 527 F.3d at 1227.
In sum, the overwhelming number of dissimilarities, especially with
respect to the elements plaintiffs claim are similar, see Attia, 201 F.3d at
58, “not only exceed the points of similarity,” Concrete Mach., 843 F.2d at
608 (internal quotations marks and citation omitted), but also “preclude a
finding of substantial similarity,” Oravec, 527 F.3d at 1227. As such, the
court concludes that “no reasonable jury, properly instructed, could find”

22

This includes plaintiffs’ claim that although the entire design was not copied in the
accused home, individual floor plans or elevation views were. Because the substantial
similarity analysis here concerns the “total concept and overall feel” of plaintiffs’ works,
Tufenkian, 338 F.3d at 133, it is insufficient to demonstrate that a single component of the
design, such as an individual floor plan or elevation view, has been copied.

37

that plaintiffs’ and defendants’ works are substantially, let alone
supersubstantially, similar. Gaito Architecture, 602 F.3d at 63; see Olsen,
2011 WL 4590003, at *15. Because plaintiffs cannot establish one of the
requisite elements of their copyright infringement claims, their causes of
action against all defendants are unsustainable.23 It follows that T.P. and
Cicero’s motions for summary judgment are granted.
D.

Plaintiffs’ Claim of Wholesale Copying
In their response, plaintiffs contend that T.P. provided copies of their

works to “former defendants Roxanne Heller and Vincenzo Sofia so that
they could prepare the [allegedly] infringing drawings.” (Dkt. No. 181 at
18.) Relying on Heller’s affidavit, plaintiffs claim that this act of wholesale
copying, standing alone, constitutes copyright infringement in that it
deprived them of their exclusive right “to distribute copies of the
copyrighted work to the public.” (Id.) While this may be true, see 17
U.S.C. § 106, this specific claim is not clearly pled in any of plaintiffs’
complaints. See Fed. R. Civ. P. 8(a); see also Bell Atl. Corp. v. Twombly,

23

Because plaintiffs’ and defendants’ works are not, as a matter of law, substantially
similar, any similarities between plaintiffs’ works and the allegedly infringing advertisements
exist at the level of unprotected expression, and thus, are insufficient to support a claim under
the Digital Millennium Copyright Act. See 17 U.S.C. § 1202(b); Olsen, 2011 WL 4590003, at
*15.

38

550 U.S. 544, 555 (2007) (stating that under Rule 8, “the defendant [must
be given] fair notice of what the . . . claim is and the grounds upon which it
rests” (internal quotation marks and citation omitted)). Thus, to the extent
plaintiffs sought to state a claim for wholesale copying against defendants,
that claim is also dismissed.
Notwithstanding this dismissal, it would be unjust to foreclose
plaintiffs’ rights to pursue this claim.24 Equally unjust, though, would be a
procedural posture that precluded defendants from attacking the
allegations prior to engaging in discovery. Therefore, plaintiffs may, if they
so choose, file a Fourth Amended Complaint within thirty (30) days of the
date of this Memorandum-Decision and Order, limited to the issue of
wholesale copying of their works, that complies with the requirements of,
inter alia, N.D.N.Y. L.R. 7.1(a)(4). If plaintiffs elect to do so, any
defendant(s) named in that complaint shall be entitled to all of rights
afforded to them under the Local Rules of Practice and Federal Rules of
Civil Procedure.
V. Conclusion

24

The court presumes, without deciding, that plaintiffs can allege all of the facts
necessary to support such a claim and that the claim would be timely.

39

WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that plaintiffs’ letter motion regarding the submission of
errata sheets (Dkt. No. 185) is GRANTED; and it is further
ORDERED that T.P. and Cicero’s motions for summary judgment
(Dkt. Nos. 176, 177) are GRANTED and all claims against them are
DISMISSED; and it is further
ORDERED that plaintiffs may, if they so choose, file a Fourth
Amended Complaint within thirty (30) days of the date of this
Memorandum-Decision and Order, limited to the issue of wholesale
copying of their works, that complies with the requirements of, inter alia,
N.D.N.Y. L.R. 7.1(a)(4); and it is further
ORDERED that, if plaintiffs do not file a Fourth Amended Complaint
within thirty (30) days of this order, the Clerk is directed to enter judgment
for defendants and close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
June 18, 2012
Albany, New York
40