Humphreys & Partners Architects v. Lessard Design, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2030
HUMPHREYS & PARTNERS ARCHITECTS, L.P.,
Plaintiff – Appellant,
v.
LESSARD DESIGN, INCORPORATED; LESSARD GROUP INCORPORATED;
CHRISTIAN J. LESSARD; CLARK BUILDERS GROUP, LLC; PDT
BUILDERS, LLC; THE PENROSE GROUP; SIXTH PENROSE INVESTING
COMPANY LLC; NORTHWESTERN INVESTMENT MANAGEMENT COMPANY,
LLC; NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,
Defendants – Appellees,
and
PENROSE PARTNERS; PARK CREST SPE PHASE I, LLC;
PENROSE/DONOHOE TYSONS, LLC,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:13-cv-00433-TSE-TCB)
Argued: May 12, 2015 Decided: June 23, 2015
Amended: June 24, 2015
Before SHEDD, DUNCAN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Shedd and Judge Harris joined.
ARGUED: Patrick Andrew Zummo, LAW OFFICES OF PATRICK ZUMMO,
Houston, Texas, for Appellant. Patrick Joseph Coyne, FINNEGAN,
HENDERSON, FARABOW, GARRETT & DUNNER, LLP, Washington, D.C.;
Antigone Gabriella Peyton, CLOUDIGY LAW PLLC, McLean, Virginia,
for Appellees. ON BRIEF: Walter D. Kelley, Jr., HAUSFELD, LLP,
Washington, D.C.; Jennifer L. Swize, JONES DAY, Washington,
D.C., for Appellant. Kandis M. Koustenis, CLOUDIGY LAW PLLC,
McLean, Virginia, for Appellees The Penrose Group, PDT Builders,
LLC, Sixth Penrose Investing Company LLC, and Clark Builders
Group, LLC; Christopher P. Foley, FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP, Washington, D.C., for Appellees Lessard
Design, Incorporated, Lessard Group Incorporated, and Christian
J. Lessard; Christopher P. Mead, LONDON & MEAD, LLP, Washington,
D.C., for Appellees Northwestern Investment Management Company,
LLC and Northwestern Mutual Life Insurance Company.
2
DUNCAN, Circuit Judge:
In this architectural copyright infringement action,
Plaintiff-Appellant Humphreys & Partners Architects, L.P.
(“HPA”) appeals the district court’s entry of summary judgment
in favor of Defendants-Appellees Lessard Design, Inc., Lessard
Group, Inc., and Christian J. Lessard (collectively, “Lessard”);
Clark Builders Group, LLC (“Clark”); PDT Builders, LLC, The
Penrose Group, and Sixth Penrose Investing Co., LLC
(collectively, “Penrose”); and Northwestern Investment
Management Co., LLC, and Northwestern Mutual Life Insurance Co.
(collectively, “Northwestern”). HPA claims that the design,
development, ownership, and construction of Two Park Crest, an
apartment building in McLean, Virginia, infringed HPA’s
architectural copyright embodied in Grant Park, a condominium
building in Minneapolis, Minnesota. 1 The district court awarded
summary judgment to Appellees, primarily because no reasonable
jury could find that the Grant Park and Two Park Crest designs
are substantially similar. For the following reasons, we
affirm.
1 The Appendix to this opinion includes a comparison
prepared by HPA’s founder and CEO of the two designs’ floorplans
and exteriors. See infra Appendix; see also J.A. 5220, 5222.
3
I.
A.
HPA is an architecture firm based in Dallas, Texas, that
designs multi-family residential buildings. In 2000 and 2001,
HPA designed a high-rise residential tower known as Grant Park.
In 2003, HPA registered the Grant Park design as an
architectural work with the United States Copyright Office and
received a certificate of copyright registration. The Grant
Park building was constructed in Minneapolis, Minnesota, in
2004.
Grant Park is a 27-story condominium building with 11 units
per floor. It has two separate elevator cores, such that each
floor has two elevator lobbies. The units on a typical floor
open directly into these lobbies, five units into one and six
into the other. The lobbies also each provide access to a
stairwell and to either a trash chute or a mechanical/electrical
room. Residents can travel between the lobbies through an
unfinished service corridor, which allows all residents to
access both utility rooms and both stairwells. This dual-core
layout is desirable because it eliminates the need for a
finished central hallway and fosters a sense of community among
the units sharing a lobby.
In 2008, Penrose began developing a high-rise apartment
building called Two Park Crest for construction in McLean,
4
Virginia. In 2010, it solicited design proposals from three
architecture firms, including HPA and Lessard, a firm based in
Vienna, Virginia. HPA submitted illustrations of its Grant Park
design in September 2010 and met with Penrose in October 2010.
On November 3, 2010, Penrose informed Lessard that it
wanted the Two Park Crest design to feature dual elevator cores
connected by a service corridor, and emailed Lessard the Grant
Park floorplan to illustrate the concept. Later that month, on
November 15, Lessard emailed Penrose a preliminary sketch of a
design with two elevator cores; Penrose responded that the
design was “looking good.” J.A. 9033. Lessard ultimately
submitted a design for a 19-story building with 17 apartments
per floor. The design incorporated three elevator cores: two
passenger elevator cores connected by an unfinished hallway, and
a service elevator core accessible from that hallway. Of the 17
apartments per floor, 8 would open directly into one passenger
elevator lobby and 9 would open directly into the other.
On November 17, 2010, Penrose told HPA that it had hired
Lessard to design the Two Park Crest project. Penrose
subsequently sold the project to Northwestern. In November
2011, Northwestern hired Clark to construct Two Park Crest.
Clark began constructing the building in January 2012.
5
B.
In April 2013, HPA filed this action against Appellees 2
under 17 U.S.C. § 101 et seq., alleging one count of copyright
infringement against each Appellee. Following discovery, the
parties cross-moved for summary judgment. Appellees argued that
they were not liable to HPA because, among other reasons, they
did not copy the Grant Park design and the two designs are not
substantially similar. Appellees supported their motions with
expert reports filed by three architects--Stephen Gresham,
Robert Greenstreet, and Douglas Carter--who concluded in their
reports that the two designs are not substantially similar.
HPA argued in its motion and responses to Appellees’
motions that Lessard copied the Grant Park design after
receiving that design from Penrose. It claimed that the speed
with which Lessard created the Two Park Crest design is direct
evidence of copying, and that the similarities between the two
designs is circumstantial evidence of copying. HPA supported
its claim that the two designs are substantially similar with a
declaration from architect and HPA expert Daniel Figert, who
identified nine characteristics shared by both designs--for
example, both designs are for multi-family buildings that are
2 HPA also brought a claim against Penrose Partners, Park
Crest SPE Phase I, LLC, and Penrose/Donohoe Tysons, LLC, none of
which is a party to this appeal.
6
approximately twenty stories tall, that have two elevator
lobbies connected by a service corridor, and that provide direct
access to units from the elevator lobbies. 3 HPA argued that the
presence and arrangement of these nine features in Two Park
Crest infringed its copyright in the Grant Park design.
HPA also moved to strike Gresham’s, Greenstreet’s, and
Carter’s expert reports on the ground that those reports were
inadmissible hearsay. In response, Appellees provided
declarations from the experts verifying the contents of their
reports and stating that they would testify at trial to the
substance thereof. The district court then denied HPA’s motions
to strike, reasoning that the declarations, although belated,
cured HPA’s objection.
On September 2, 2014, the district court granted Appellees’
motions for summary judgment. The court determined that summary
judgment was appropriate because, among other reasons, (1) there
was no direct evidence of copying, and (2) no reasonable jury
3 Figert also stated that both buildings have a “barbell”-
shaped footprint, have “similar top story and fenestration
[(i.e., window)] elements” that are constructed of “the same
materials,” and have a roof with a “cantilevered overhang” (i.e,
a roof extending beyond the exterior wall that is supported by a
beam anchored only inside the exterior wall). J.A. 5559–60
(Figert Declaration). And, with respect to the typical
floorplans in each design, Figert stated that each building has
“mechanical / electrical rooms located at one end of the fire
corridor and the trash chutes located at the opposite end,” and
that the corner units in each design have “diagonal access
corridors.” Id. at 5559.
7
could find that the Grant Park and Two Park Crest designs are
extrinsically (i.e., objectively) similar.
The court held that the two designs are not extrinsically
similar for two independently sufficient reasons. First,
neither the nine features that Figert identified nor their
arrangement in Grant Park is eligible for copyright protection.
And second, those features are presented and arranged
differently in the Two Park Crest design. With respect to the
arrangement of the nine features in the two designs, the court
noted that Appellees’ experts had provided detailed explanations
as to how the two designs differ with respect to their size,
footprints, floorplans, and exterior appearances. HPA’s expert,
in contrast, “offer[ed] no evidence as to what makes the two
arrangements extrinsically similar.” Humphreys & Partners
Architects, L.P. v. Lessard Design, Inc., 43 F. Supp. 3d 644,
677 (E.D. Va. 2014). The court concluded that Appellees were
“entitled to summary judgment . . . based on the results of the
extrinsic similarity analysis.” Id. HPA timely appealed.
II.
Before turning to HPA’s arguments on appeal, we set forth
the law governing architectural copyright infringement claims.
“Copyright protection subsists . . . in original works of
authorship fixed in any tangible medium of expression . . . from
8
which they can be perceived, reproduced, or otherwise
communicated . . . .” 17 U.S.C. § 102(a). In 1990, Congress
expanded the scope of “works of authorship” to include
“architectural works,” id. § 102(a)(8), by enacting the
Architectural Works Copyright Protection Act (the “AWCPA”), Pub.
L. No. 101–650, §§ 701–706, 104 Stat. 5089 (1990) (codified in
various sections of 17 U.S.C.). The AWCPA defines an
architectural work as “the design of a building as embodied in
any tangible medium of expression.” 17 U.S.C. § 101. “The work
includes the overall form as well as the arrangement and
composition of spaces and elements in the design, but does not
include individual standard features.” Id. The AWCPA’s
legislative history explains that the arrangement and
composition of spaces and elements is protectable because
“creativity in architecture frequently takes the form of a
selection, coordination, or arrangement of unprotectible
elements into an original, protectible whole.” H.R. Rep. No.
101–735, at 18 (1990), reprinted in 1990 U.S.C.C.A.N. 6935,
6949.
“To establish a claim for copyright infringement, a
plaintiff must prove that it owned a valid copyright and that
the defendant copied the original elements of that copyright.”
Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 801
(4th Cir. 2001). “Copying can be proven through direct or
9
circumstantial evidence.” Bldg. Graphics, Inc. v. Lennar Corp.,
708 F.3d 573, 578 (4th Cir. 2013).
“Direct evidence of copying . . . includes evidence such as
party admissions, witness accounts of the physical act of
copying, and common errors in the works of plaintiffs and the
defendants.” Rottlund Co. v. Pinnacle Corp., 452 F.3d 726, 732
(8th Cir. 2006). In M. Kramer Manufacturing Co. v. Andrews, 783
F.2d 421 (4th Cir. 1986), for example, we found direct evidence
of copying where “[t]he computer programs in the record [were]
virtually identical” and the defendants’ program, like
plaintiff’s, included “a hidden legend that would appear only
when the [program’s] buttons were pressed in an abnormal
sequence,” id. at 446. Similarly, our sister circuits have
found direct evidence of copying where a defendant “gave . . .
explicit instruction that [a] work be copied,” Rogers v. Koons,
960 F.2d 301, 307 (2d Cir. 1992), and where the defendant
admitted to copying the plaintiff’s work, see, e.g., Enter.
Mgmt. Ltd. v. Warrick, 717 F.3d 1112, 1120 (10th Cir. 2013);
Soc’y of Holy Transfiguration Monastery, Inc. v. Gregory, 689
F.3d 29, 49 (1st Cir. 2012).
“Where direct evidence of copying is lacking, [the]
plaintiff may prove copying by circumstantial evidence in the
form of proof that the alleged infringer had access to the work
and that the supposed copy is substantially similar to the
10
author’s original work.” Bouchat v. Baltimore Ravens, Inc., 241
F.3d 350, 353-54 (4th Cir. 2001). To show substantial
similarity, the plaintiff must establish that the two works are
both “extrinsically” and “intrinsically” similar. Universal
Furniture Int’l, Inc. v. Collezione Europa USA, Inc., 618 F.3d
417, 435 (4th Cir. 2010). “The extrinsic inquiry is an
objective one” that “looks to ‘external criteria’” of
substantial similarity between the alleged copy and the
protected elements of the copyrighted work. Id. at 435–36
(quoting Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435,
1442 (9th Cir. 1994)). “The intrinsic inquiry, in contrast,
implicates the perspective of the [works’] intended observer
. . . [and] looks to the ‘total concept and feel of the works
. . . .’” Id. at 436 (quoting Lyons P’ship, 243 F.3d at 801).
While we have applied this two-part substantial similarity
test in a variety of copyright contexts, we have not expressly
held in a published opinion that this test governs claims of
architectural copyright infringement. The parties both argue,
and the district court determined, that the extrinsic/intrinsic
test governs. We agree, and therefore hold that “the two-part
test for determining substantial similarity . . . is applicable
to a copyright infringement claim involving architectural
works.” Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg.,
LLC, 496 F. App’x 314, 320 (4th Cir. 2012); see also Bldg.
11
Graphics, 708 F.3d at 580 n.3 (stating in dicta that the court
would apply the extrinsic/intrinsic test to a claim of
architectural copyright infringement).
III.
We turn now to HPA’s arguments on appeal. HPA claims that
the district court erred in three respects: by considering
Appellees’ expert reports when resolving the motions for summary
judgment; by failing to credit HPA’s direct and circumstantial
evidence of copying; and by making various errors of copyright
law. We consider each argument in turn.
A.
We begin with HPA’s argument that the district court erred
by considering Appellees’ expert reports, a claim we review for
abuse of discretion. See Nader v. Blair, 549 F.3d 953, 963 (4th
Cir. 2008) (reviewing admissibility of affidavits at summary
judgment stage for abuse of discretion); cf. EEOC v. Freeman,
778 F.3d 463, 466 (4th Cir. 2015) (“We review a district court’s
decision to admit or to exclude expert evidence for an abuse of
discretion.”).
HPA maintains that, because these reports were
“inadmissible hearsay,” they were “not evidence upon which the
court could grant summary judgment.” Appellant’s Br. at 25.
Appellees respond that the district court acted within its
12
discretion when considering the expert reports because those
“reports were both sworn to in declarations filed in response to
HPA’s objection and the content of the reports would be
admissible through the expert’s testimony at trial.” Appellees’
Br. at 28. We agree with Appellees that the district court did
not err by considering the reports.
“The court and the parties have great flexibility with
regard to the evidence that may be used on a [summary judgment]
proceeding.” 10A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure § 2721 (3d ed. 1998).
The court may consider materials that would themselves be
admissible at trial, and the content or substance of otherwise
inadmissible materials where the “the party submitting the
evidence show[s] that it will be possible to put the information
. . . into an admissible form.” 11 James Wm. Moore et al.,
Moore’s Federal Practice § 56.91[2] (3d ed. 2015). If the
nonmovant objects to the court’s consideration of “material
cited to support or dispute a fact,” Fed. R. Civ. P. 56(c)(2),
the movant has the burden “to show that the material is
admissible as presented or to explain the admissible form that
is anticipated,” Fed. R. Civ. P. 56 advisory committee’s note.
Here, the admissibility of the reports themselves is
immaterial because Appellees “explain[ed] the admissible form
that is anticipated.” Id. Appellees submitted declarations
13
made “under penalty of perjury” from the experts attesting that
they “would testify to the matters set forth in [their
respective] report[s].” J.A. 6367 (Greenstreet), 6392–93
(Carter); accord J.A. 6426 (Gresham). And “[s]ubsequent
verification or reaffirmation of an unsworn expert’s report,
either by affidavit or deposition, allows the court to consider
the unsworn expert’s report on a motion for summary judgment.”
DG & G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576
F.3d 820, 826 (8th Cir. 2009) (quoting Maytag Corp. v.
Electrolux Home Prods., Inc., 448 F. Supp. 2d 1034, 1064 (N.D.
Iowa 2006)). HPA does not claim that the experts’ declarations
are deficient or that the experts’ testimony would be
inadmissible at trial. We therefore find no error in the
district court’s consideration of the experts’ reports. 4
B.
We turn now to HPA’s argument that the district court
failed to credit HPA’s direct and circumstantial evidence of
copying when granting summary judgment to Appellees. As the
4
Our holding today does not establish any requirement for
the consideration of expert reports at summary judgment. We
hold only that the district court acted within its discretion by
considering Appellees’ reports; we express no opinion as to
whether the experts’ declarations were necessary. Cf. Deakins
v. Pack, 957 F. Supp. 2d 703, 752 (S.D.W. Va. 2013) (“The 2010
amendments to Rule 56(c)(2) ‘eliminated the unequivocal
requirement that documents submitted in support of a summary
judgement motion must be authenticated.’” (quoting Akers v. Beal
Bank, 845 F. Supp. 2d 238, 243 (D.D.C. 2012))).
14
district court noted, summary judgment is appropriate “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.”
Fed. R. Civ. P. 56(a). “We review de novo a district court’s
award of summary judgment, viewing the facts in the light most
favorable to the nonmoving party.” Boyer-Liberto v.
Fontainebleau Corp., No. 13-1473, 2015 WL 2116849, at *8 (4th
Cir. May 7, 2015) (en banc).
1.
HPA first argues that the district court “ignored HPA’s
evidence” when it “stated that there was no direct evidence of
copying.” Appellant’s Br. at 52. HPA submits that “the
development of Lessard’s sketches establishes direct evidence of
copying,” id. at 53, particularly when viewed in concert with
Figert’s deposition testimony. Figert stated in relevant part:
“It appears that rather than going through the normal iterative
design process, that Lessard had a preconceived solution to the
design.” Id. (quoting J.A. 5195).
This evidence is not direct evidence of copying. That
Lessard may have created its design with more speed and less
revision than is typical in the industry is consistent with
HPA’s theory that Lessard copied its design, but it does not
15
itself establish copying. 5 And Figert did not claim to have
personal knowledge that Lessard copied the Grant Park design.
In fact, Figert made clear in his deposition that he was not
prepared to state that Lessard copied the design. Asked whether
it was his “opinion that Lessard copied the Grant Park design,”
Figert responded, “I was not asked to give an opinion about
whether or not there was a copy made. . . . I’ll pass on giving
a conclusion as to whether or not I think they copied it or
not.” J.A. 1532. Because HPA presented no direct evidence of
copying, the district court did not err by stating that “direct
evidence of copying does not exist” here. Humphreys & Partners
Architects, L.P. v. Lessard Design, Inc., 43 F. Supp. 3d 644,
659 (E.D. Va. 2014).
2.
HPA next argues that the district court resolved disputed
issues of fact in Appellees’ favor and failed to credit HPA’s
evidence when considering whether the two designs are
5 HPA states that the district court in Brocade
Communications Systems, Inc. v. A10 Networks, Inc., 873 F. Supp.
2d 1192 (N.D. Cal. 2012), considered “almost identical facts” to
be “direct evidence of copying,” Appellant’s Br. at 53. But the
Brocade court found “the unusually fast pace of development of
[computer] code” to be “circumstantial evidence” supporting an
expert’s conclusion about copying. Brocade Commc’ns Sys., 873
F. Supp. 2d at 1219–20 (emphasis added).
16
extrinsically similar. 6 Specifically, HPA claims that the
district court failed to credit its “evidence showing that the
overall form and composition of the works was similar.”
Appellant’s Br. at 27. This argument presents a closer question
than does HPA’s direct-evidence claim. We address it by
outlining the parties’ respective burdens at summary judgment,
and then considering whether Appellees and HPA met those
burdens.
The party moving for summary judgment “discharges its
burden by showing that there is an absence of evidence to
support the nonmoving party’s case.” Kitchen v. Upshaw, 286
F.3d 179, 182 (4th Cir. 2002). If the movant discharges this
burden, the nonmoving party must present “specific facts showing
that there is a genuine issue for trial.” Blair v. Defender
Servs., Inc., 386 F.3d 623, 625 (4th Cir. 2004) (quoting White
v. Rockingham Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir.
1987)). To create a genuine issue for trial, “the nonmoving
party must rely on more than conclusory allegations, mere
speculation, the building of one inference upon another, or the
mere existence of a scintilla of evidence.” Dash v. Mayweather,
731 F.3d 303, 311 (4th Cir. 2013). In other words, a factual
6
We assume for the purposes of this argument that HPA has
met its burden of showing that it owns a valid copyright in the
Grant Park design, and that Appellees had access to that design.
17
dispute is genuine only where “the non-movant’s version is
supported by sufficient evidence to permit a reasonable jury to
find” in its favor. Stone v. Univ. of Md. Med. Sys. Corp., 855
F.2d 167, 175 (4th Cir. 1988).
Here, Appellees carried their initial burden of “‘showing’-
-that is, pointing out to the district court--that there is an
absence of evidence to support [HPA’s] case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). They explained in their
motions that no evidence suggests that Two Park Crest and Grant
Park have a substantially similar overall form, or that the two
designs arrange spaces and elements in a substantially similar
manner. And Appellees submitted expert reports explaining why
the two designs are dissimilar. Cf. Universal Furniture Int’l,
Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 435 (4th Cir.
2010) (“The extrinsic inquiry is an objective one on which
expert testimony may be relevant.”). For example, Gresham
explained in his report that, while both designs offer direct
access to units from elevator lobbies, the “relation of the
elevators to the apartment doors” is different in the two
designs. J.A. 2326. “At Grant Park,” Gresham wrote, “the
elevators open into a discernible vestibule,” such that a person
standing in the lobby “can view six of the individual resident
doors (out of eleven, total, per floor[]).” Id. “At Two Park
Crest, however, the elevators open directly into a cross
18
corridor,” and “[u]nit entries are tucked away in the legs of an
H-shaped resident corridor[.]” Id. In the Two Park Crest
design, “[o]nly two of seventeen resident doors are visible form
the elevator lobby.” 7 Id.
The burden then shifted to HPA to document a substantial
similarity between the protected elements of its design--i.e.,
Grant Park’s overall form and arrangement of the nine individual
features--and the Two Park Crest design. HPA claims on appeal
that it carried this burden with the following evidence.
First, HPA relies on two declarations submitted by Mark E.
Humphreys, HPA’s founder and CEO. The only statements in these
declarations relevant to substantial similarity are Humphreys’s
assertions that “[t]he Court can see that the two floor plans
are very similar,” and that “the Court can see that [the two
buildings] have a very similar appearance.” J.A. 5216. These
statements are insufficient to create a genuine dispute of
material fact because they are conclusory. See Dash, 731 F.3d
at 311. Humphreys identifies no specific, objective similarity
7 Appellees also presented evidence that, as compared to
Grant Park, Two Park Crest is eight stories shorter; has six
more units per floor; has one more elevator core, for service;
has a less rectangular footprint; has mechanical/electrical
rooms and trash chutes on the back (rather than front) side of
the building; has exit stairwells located opposite the elevator
lobbies and encased in separate enclosures; has an exterior with
wider and more widely spaced vertical indentations; has a façade
that is majority glass; and has fewer window elements and
walkable balconies.
19
between the two designs to support his conclusion that the
buildings’ floorplans and appearances are similar.
Second, HPA identifies three declarations--from Robert Lux
and David A. Hunt, both of whom worked with HPA on the Grant
Park project, and Walter Hughes, HPA’s Director of Design--
describing the creation, originality, and benefits of the Grant
Park design. These declarations do not create a genuine dispute
for trial because none contains an assertion about the
similarity between the Grant Park and Two Park Crest designs.
Finally, HPA relies on Figert’s declaration and deposition
testimony. Figert stated in his declaration that “[t]he two
designs have an extrinsic similarity in that the ideas and
expression of the ideas used in the projects have substantial
similarities[,] . . . includ[ing] such things as building floor
plan layout, exit circulation, building size, and composition of
the major elements that make up the exterior expression of the
designs.” J.A. 5558. He also listed nine features shared by
both designs--for example, the stairwells in both designs are
located adjacent to elevator lobbies--and stated that these
characteristics are “examples of the arrangement and composition
of spaces and elements that represent substantially similar
features of Humphreys’ Grant Park design.” J.A. 5560. And
Figert stated in his deposition that the “the overall expression
20
of the idea of those [nine] elements is very similar in the two
projects.” J.A. 5197.
Figert’s declaration and deposition testimony are
insufficient to show that the designs are extrinsically similar.
Like Humphreys, Figert offered no specific similarity between
the designs’ overall form or arrangement of individual elements.
He identified nine shared features and stated that these
characteristics show that the two designs arrange and compose
both spaces and elements in a substantially similar manner. But
the mere presence of these nine features in both buildings does
not create an issue for trial because, as HPA’s counsel
confirmed at oral argument, HPA does not claim “any protectable
interest in any individual component” of the Grant Park design. 8
Oral Arg. 7:56–8:16; see also Ale House Mgmt., Inc. v. Raleigh
Ale House, Inc., 205 F.3d 137, 143 (4th Cir. 2000) (“To prove
copyright infringement, the plaintiff must establish that it
owned copyrighted material and that the infringer copied
protected elements of it.”). And Figert did not explain how
specifically the two designs are similar in their floorplans,
exits, sizes, or arrangement of individual elements. Figert’s
8We do not imply that the outcome of this appeal would be
different if HPA had pressed this claim. To the contrary, we
agree with the district court that the nine features, when
viewed in isolation, are not extrinsically similar in the two
designs. See Humphreys & Partners Architects, L.P. v. Lessard
Design, Inc., 43 F. Supp. 3d 644, 669-75 (E.D. Va. 2014).
21
conclusory assertions are, as a matter of law, insufficient to
show that any aspect of Two Park Crest is substantially similar
to a protected element of the Grant Park design. See Dash, 731
F.3d at 311.
At bottom, HPA failed to carry its burden of identifying a
specific similarity between the Two Park Crest design and the
protected elements of its Grant Park design. The evidence,
viewed in the light most favorable to HPA, shows that the Two
Park Crest and Grant Park designs incorporate nine of the same
concepts. But it does not establish that the two designs have a
similar overall form, or that the designs arrange or compose
elements and spaces in a similar manner. Accordingly, because
HPA failed to present nonconclusory evidence that the designs
are extrinsically similar, we reject HPA’s claim that the
district court failed to credit its extrinsic-similarity
evidence.
C.
We conclude by addressing HPA’s claim that the district
court misapplied relevant copyright law in three respects.
First, HPA argues that the district court erroneously
declined to consider whether the Two Park Crest design arranges
unprotected elements in a substantially similar manner to the
arrangement of those elements in the Grant Park design. This
argument mischaracterizes the district court’s reasoning. The
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district court began its analysis by considering whether any of
the nine features Figert identified were themselves protectable.
But the court did not stop there; it also considered whether,
“notwithstanding the fact that the nine features [HPA] relies on
do not warrant protection under the AWCPA, . . . the arrangement
of those features is substantially similar in the Grant Park and
Two Park Crest designs.” Humphreys & Partners Architects, L.P.
v. Lessard Design, Inc., 43 F. Supp. 3d 644, 676 (E.D. Va.
2014). And, contrary to HPA’s assertion here, the district
court did not exclude any feature from this analysis. Rather,
the court concluded that no reasonable jury could find the two
arrangements similar because, among other reasons, “the overall
footprints of the two designs are highly different,” and the two
designs “have a different shape, size, and exterior appearance.”
Id. at 677.
Second, HPA claims that the district court erred in various
respects by finding that the allegedly copied aspects of the
Grant Park design are not eligible for copyright protection. We
need not reach this argument because the district court also
held that, even if those aspects were protected, Appellees are
not liable to HPA because they did not copy them. This holding,
which we affirm today, is sufficient to support the judgment.
Finally, HPA argues that the district court conflated
intrinsic (i.e., subjective) and extrinsic (i.e., objective)
23
similarity when considering the two designs as a whole. Cf.
Universal Furniture Int’l, Inc. v. Collezione Europa USA, Inc.,
618 F.3d 417, 435-36 (4th Cir. 2010) (distinguishing between the
intrinsic- and extrinsic-similarity analyses). HPA claims that
the district court engaged in a subjective analysis when
discussing whether the overall arrangement of elements in the
two designs is extrinsically similar. But the district court
correctly stated that “examining an ordinary person’s subjective
impressions of similarities between two works . . . is typically
the province of the jury,” and it declined to make any
subjective finding about the two designs. Humphreys, 43 F.
Supp. 3d at 679. HPA’s final argument fails because it
identifies no subjective finding by the district court in its
extrinsic-similarity analysis, and our review reveals no such
finding.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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APPENDIX
Typical Grant Park Floorplan:
Typical Two Park Crest Floorplan:
25
Grant Park Exterior:
Two Park Crest Exterior:
26