Access Not Inferred By 'Mere Possibility' That Defendant Saw Copyrighted Designs

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A copyright infringement claim based on a plaintiff's architectural works cannot be sustained absent reliable evidence that a defendant ever had access to those works, the U.S. Court of Appeals for the Fourth Circuit held Feb. 26 (Building Graphics Inc. v. Lennar Corp., 4th Cir., No. 11-2200, 2/26/13).

Affirming summary judgment in favor of the defendants, the court held that the plaintiff's evidence raised only a “mere possibility” of access. This evidence, which included the fact that the designs were made available on the plaintiff's website but failed to demonstrate that the defendants ever saw those designs online, was insufficient to sustain a copyright infringement claim, the court held. 

Charlotte Designer Registers House Plans

Building Graphics Inc. designs residential housing and claimed rights in three architectural plans developed between 1993 and 1998. It registered its Chadwyck design in 2008 as a technical drawing and as an architectural work. The derivative designs Ballantrae and Springfield were registered in 2009

Lennar Corp. and Lennar Carolinas L.L.C., a residential construction company, engaged Drafting and Design Inc. to provide it with architectural plans for its building projects and several designs were submitted--the Sumerlin, the Hampton, the Hudson, the Abbey, and the Bluffton.

Building Graphics claimed that the five Drafting and Design works constituted unauthorized copies of its three registered works, and it sued Lennar and Drafting and Design in the U.S. District Court for the Western District of North Carolina. The complaint alleged copyright infringement under the Architectural Works Copyright Protection Act of 1990, Pub. L. No. 101-650, §§701-706, 104 Stat. 5089, 5133-34, 17 U.S.C. §102(a)(8).

The defendants moved for summary judgment, asserting that they had not copied the registered works, but rather than they had been independently developed from a work—the Fairfax—by another designer. 

District Court: No Access, No Similarity

Judge Richard L. Voorhees found that Building Graphics held valid copyright interest in the Chadwyk design, but he concluded that the company had not proffered sufficient evidence to create a genuine outstanding question of material fact regarding its allegation that Drafting and Design had copied anything from the subject design. Building Graphics Inc. v. Lennar Corp., 100 U.S.P.Q.2d 1912 (W.D.N.C. 2011) (196 PTD, 10/11/11).

Building Graphics failed to prove that the defendants had access to its copyrighted designs, the district court held.

Specifically, the district court said that there it had not been adequately established that either Lennar or Drafting and Design had access to the Chadwyck work. The court summarized Building Graphics' claims:

(1) coupled with evidence that [Lennar and Drafting and Design] worked together on the challenged plans, testimony that, before entering a new geographic market, Lennar would conduct due diligence to assess market demand and to identify those market segments to which potential competitors were actively catering in light of competitors' renderings; (2) evidence that [Building Graphics]'s plans had been published on the Internet; (3) evidence that [a Lennar employee] had worked for [UDC Homes,] a company that at one time had access to [Building Graphics]'s plans; and (4) evidence that sales materials were prepared and distributed by UDC Homes.  

Voorhees said that it was not a reasonable inference to assume that Lennar had conducted the type of due diligence that would have resulted in its gaining access to the Chadwyck plans. Indeed, this evidence constituted only a “mere possibility” of access, especially considering the sheer number of residential home designs extant in the local area, the district court held.

Similarly, publication on the internet by itself created only the mere possibility of access, the court held.

Regarding the remaining evidence proffered by Building Graphics, that UDC Homes could have accessed the plans, the court found this very weak, considering that UDC had left the local market well before Building Graphics started developing the Chadwyck plans. Furthermore, there was no evidence that any actual Chadwyck house had ever been built.

The court concluded there was no reasonable probability that the former UDC employee had access to the Chadwyck sales materials.

Finally, the court admitted that a “striking similarity” between two designs might help bolster weak evidence of access, but striking similarity would be difficult to establish in this case.

Indeed, the court went on to find that there was neither a striking similarity nor even substantial similarity between the designs at issue in the case.

Having found insufficient evidence to support a material question regarding access, the court granted summary judgment on the infringement claim. 

Bouchat, Towler Guide Access Determination

The appeals court, like the district court, first assessed whether Building Graphics had demonstrated that there was a reasonable possibility that Lennar had access to the copyrighted design.

Two cases guided the Fourth Circuit's access analysis. First was Towler v. Sayles, 76 F.3d 579, 37 U.S.P.Q.2d 1785, which declined to infer access to a copyrighted work based on an author's delivery of her work to a third-party intermediary with a close relationship to the defendant.

On the other end of the access spectrum was Bouchat v. Baltimore Ravens Inc., 241 F.3d 350 56 U.S.P.Q.2d 1422 (4th Cir. 2000), cert. denied, 532 U.S. 1038 (2001).

The court called Bouchat“a good example of a case where reasonable access was shown.” In that case, the plaintiff was able prove by circumstantial evidence that the alleged infringer had access to his copyrighted works.

Access was ultimately established in Bouchat by the plaintiff's demonstration that the defendant in that case, the owner of the Baltimore Ravens professional football franchise, had an opportunity to view the logos that the plaintiff had created upon learning that Baltimore's new franchise would be called the Ravens.

Given the defendant's opportunity to view the works, and the subsequent resemblance between the plaintiff's drawings and the logo that the Ravens ultimately chose, the jury was entitled to infer access, the Fourth Circuit said. Indeed,Bouchat said that the facts established that the likelihood of the defendant having access to the works was “far more than hypothetical.” 

'Mere Possibility' of Access Insufficient

“Here, Building Graphics has not shown a chain of events or wide dissemination sufficient to show a reasonable possibility that Lennar had access to Building Graphics' plans,” Judge Andre M. Davis said.

The Fourth Circuit agreed with the district court that Building Graphics's due diligence theory only establishes a “mere possibility” of access. The court said that the record shows that the defendants' due diligence was “habitually confined … to new homes that were currently on offer and being built in the market--not homes that had been built years earlier.” Accordingly, it is unlikely that Lennar would have been encountered Building Graphics' copyrighted plans even if it had done due diligence before entering the Charlotte market, the court said.

Moreover, only a small number of homes were ever built using any of the copyrighted plans in question, a factor that the court said “further diminish[es] the possibility of access.”

Access can also not be inferred from the fact that two of the designs were available on the internet, the court said. This theory fails in part because there is no evidence that the designs were prominently displayed on the Building Graphics website, the court said. But also the theory fails because there is simply no evidence that Lennar in fact gained access to the designs. “The mere existence of the [designs] is not enough to support an affirmative inference that they fell into Lennar's hands,” the court said.

On the whole, “the above facts and circumstances amount to inferences built upon inferences; they do not give rise to more than a mere possibility of access,” the court said.

Because there was insufficient evidence of access, the court said it need not address whether there was a substantial similarity between the designs. It thus affirmed the district court's dismissal of the copyright infringement claim.

The court's opinion was joined by Judge Barbara Milano Keenan and Judge John A. Gibney Jr. of the U.S. District Court for the Eastern District of Virginia, sitting by designation.

The defendants were represented by Thomas C. Wright of Rose Walker, Dallas. Building Graphics was represented by John Mark Wilson of Moore & Van Allen, Charlotte.

By Tamlin H. Bason  

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