Intervest Construction, Inc. v. Canterbury Estate Homes, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 22, 2008
No. 07-12596 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 05-01853-CV-ORL-22-JGG

INTERVEST CONSTRUCTION, INC.,
a Florida corporation,

Plaintiff-Appellant,

versus

CANTERBURY ESTATE HOMES, INC.,
a Florida corporation,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(December 22, 2008)

Before BIRCH and DUBINA, Circuit Judges, and GOLDBERG,* Judge.

BIRCH, Circuit Judge:

*
Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.
 In this copyright infringement action the appellant contends that the district

court erred when it examined the two floor-plans at issue, and, emphasizing the

differences between the two, concluded “that, as a matter of law, no reasonable

fact-finder could conclude” that appellant’s floor-plan (“The Kensington”) was

substantially similar to appellee’s floor-plan (“The Westminister”). More

specifically, appellant (“Intervest”) argues that the district court employed a

“heightened ‘substantial similarly’ standard” by itself focusing upon certain

dissimilarities between the two floor-plans at issue,1 based upon a misinterpretation

of Howard v. Sterchi, 974 F.2d 1272 (11th Cir. 1992). For the reasons that follow

we find no error and AFFIRM the judgment of the district court.

I. BACKGROUND

In point of time, the floor plan for The Westminster was created in 1992 as a

work-made-for-hire by Intervest Construction, Inc. (“Intervest”). The putatively

infringing floor-plan, The Kensington, was created in 2002 by Canterbury Estate

Homes, Inc. (“Canterbury”). Each floor-plan depicts a four-bedroom house, with

one bedroom being denominated as a “master” bedroom or suite. Each floor plan

includes a: two-car garage; living room; dining room; “family” room; foyer;

“master” bathroom; kitchen; second bathroom; nook; and porch/patio. Each floor-

1
The two floor-plans at issue are attached hereto as an appendix.

2
plan also reflects certain “elements” common to most houses: doors; windows;

walls; bathroom fixtures (toilet, tub, shower, and sink); kitchen fixtures (sink,

counter, refrigerator, stovetop, and pantry/cabinets); utility rooms and fixtures

(washer, dryer, and sink); and closets. A cursory examination of the two floor-

plans reveals that the square footage of both is approximately the same. Also, as is

common to houses, there are placements of entrances, exits, hallways, openings,

and utilities (furnace, air conditioner, hot water heater, and telephone hardware).

After identifying all of these unassigned components and elements of the

floor-plans, the district court undertook a careful comparative analysis of the

selection, coordination, and arrangement of these common components and

elements. The district court focused upon the dissimilarities in such coordination

and arrangement:

First, Canterbury represents that the square footage of the
rooms in the two designs is different, and visual examination of the
floor plans appears to confirm that. In any event, Intervest seemingly
does not contest the point.

Second, the garage in The Westminster has a front entrance,
while The Kensington’s has a side entrance. Further, Intervest’s
design has an attic access from the garage, while Canterbury’s version
has a “bonus room” above the garage, something The Westminster
lacks entirely. Moreover, the inside air conditioning unit and water
heater are placed differently in the two floor plans. Additionally, The
Kensington has two windows in the garage, while The Westminster
has none. In The Westminster, there is a bedroom closet to the left of

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the utility room, whereas in The Kensington, there is a hallway in that
location.

There are three bedrooms on the left side of the two designs,
with a master bedroom across the house on the right side.
(Confusingly, The Kensington drawing identifies the bedroom closest
to the garage and the one farthest from the garage as “Bedroom 3.”)
There are significant differences between the left-side bedrooms in the
two drawings.

The bedroom closest to the garage (“Bedroom 2” in The
Westminster and one of two “Bedroom 3”’s in The Kensington) is
shaped differently in the two designs. In The Westminster, this
room’s longest wall abuts the garage, whereas in The Kensington, a
shorter wall separates the room from the garage. Additionally, in The
Westminster, one would enter this particular room straight through a
door at the end of a hallway, whereas in The Kensington, one would
have to turn 90 degrees off the hallway to enter the room.
Additionally, the entrance doors swing in opposite directions in the
two designs. Moreover, the closets in this bedroom are situated on
completely different walls in the two drawings.

Regarding the middle bedroom on the left side (“Bedroom 3” in
The Westminster and “Bedroom 2” in The Kensington), the entrances
and closets are different in the two floor plans. The closet in The
Westminster runs nearly the length of one wall, while the closet in
The Kensington is deeper, smaller, and occupies only a corner of the
bedroom. The room in The Westminster has a 45 degree entrance,
beyond which is an angled wall (followed by the aforementioned long
closet). The Kensington’s counterpart room has a 90 degree entrance
which opens flush against a 90 degree wall. Finally, the bedroom in
The Westminster appears more rectangular overall than its counterpart
in The Kensington.

Moving to the last left-side bedroom (“Bedroom 4” in The
Westminster and the other “Bedroom 3” in The Kensington), the same
differences identified regarding the preceding bedroom also exist

4
regarding this room, except that the smaller closet in The Kensington
is located near the room’s entrance, rather than in a corner.

The hallway bathroom situated next to this bedroom is also
different in the two designs. The bathroom in The Westminster
appears larger. Additionally, the alignment of the right wall vis-a-vis
the hallway wall is different in the two plans. Further, “the bathtubs
face opposite ways in the two designs,” “the bathroom sink counter
space in [The Kensington] is much smaller than in [The
Westminster],” and “[The Kensington’s] sink is oval shaped whereas
[The Westminster’s] is round.” Doc. 50 at 16. Finally, although the
bathroom door leading to the exterior of the house swings in the same
direction in both plans, Canterbury notes that this is required by the
fire code.

Proceeding to the center portion of the homes, the nooks in the
two plans are markedly different. In that regard,

[The Westminster’s] nook feeds into a ninety degree
angle adjacent to the Porch and has windows looking
both to the outside and to the Porch. On the other hand,
[The Kensington’s] design is rounded into the porch and
is completely made of glass. There is no window to the
outside or into the Covered Patio. Moreover, the entrance
from the Nook into the Living Room in [The
Westminster’s] design has an elongated wall which
travels much further into the Living Room than in [The
Kensington’s] design, and also fails to break inward at a
ninety degree angle like in [The Kensington’s] design.

Id. at 17. Further, the shapes of the living rooms are different, in part
due to the dissimilarities in the layout of the nooks.

The kitchens in the two plans are also substantially different. In
that connection,

the wall placement in the southeast corner of the kitchens
is significantly different. [The Kensington’s] design

5
 pushes this wall further into the Living Room and pushes
the Kitchen Counter much further north than in [The
Westminster’s] design. This allows [The Kensington’s]
design to have a much larger Pantry than [The
Westminster’s] design.

[Further, The Westminster’s] design has a retractable
door on its pantry which opens at a ninety degree angle
while [The Kensington’s] has a solid door which opens at
a forty-five degree angle. Additionally, . . . [The
Kensington’s] kitchen counter is much thinner and longer
than [The Westminster’s] which places the dishwasher in
a different location. Finally, . . . [The Kensington’s]
Kitchen has an Island as well as an entrance to a hallway
running down the left side of the Utility Room while
[The Westminster’s] design has none of these features.

Id. at 17-18.

Moving to the right side of the house, there are material
dissimilarities in the foyer, the master bedroom, and the master bath.
The front entrance to The Westminster “has one solid door with
windows on either side while [The Kensington’s] front entrance has a
pair of glass French Doors.” Id. at 18. Further, “the Master Bedroom
in [The Kensington’s] design contains glass French Doors on the far
left side of the back wall which opens into a Covered Patio,” whereas
The Westminster “simply has a sliding glass door in the center of the
back wall which opens to an uncovered Porch.” Id. Additionally, in
The Kensington’s master bath, “the doors to the walk-in closets . . .
are solid and open in different directions than those [in the
Westminster], which uses a retractable door.” Id. Finally, the sinks in
the master bath are placed differently in the two designs. In The
Kensington, the sinks are centered; in The Westminster, they are not.

R1-69 at 5-8. (footnotes omitted).

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 Given the number of dissimilarities in the respective coordination and

arrangement of these non-original, commonplace elements and components, the

district court ruled that no reasonable observer could conclude that the

copyrightable elements of the two floor-plans were substantially similar.

II. DISCUSSION

Since we are dealing with a specific type of copyrightable work, here an

architectural work, we begin by examining the statutory definition of an

“architectural work,” to wit: “the design of a building as embodied in any tangible

medium of expression, including a building, architectural plans or drawings. 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.” 17 U.S.C. § 101 (2008). A review of the legislative history discloses

that such “individual standard features” include “common windows, doors, and

other staple building components.” H.R. Rep. No. 101-735 (1990) as reprinted in

1990 U.S.C.C.A.N. 6935, 6949. Including the phrase “the arrangement and

composition of spaces and elements in the design” demonstrates Congress’

appreciation that “creativity in architecture frequently takes the form of a selection,

coordination, or arrangement of unprotectible elements into an original, protectible

whole.” Id. Accordingly, while individual standard features and architectural

7
elements classifiable as ideas or concepts are not themselves copyrightable, an

architect’s original combination or arrangement of such elements may be. See

Corwin v. Walt Disney Co., 475 F.3d 1239, 1251 (11th Cir. 2007). Thus, the

definition of an architectural work closely parallels that of a “compilation” under

the statute, that is: “[A] work formed by the collection and assembling of

preexisting materials or of data that are selected, coordinated, or arranged in such a

way that the resulting work as a whole constitutes an original work of authorship.”

17 U.S.C. § 101. The Supreme Court in Feist Publications, Inc. v. Rural

Telephone Services Co., 499 U.S. 340, 111 S. Ct. 1282 (1991), and our court in

BellSouth Adver. & Publ’g Corp. v. Donnelley Info. Publ’g, Inc., 999 F.2d 1436

(11th Cir. 1993) (en banc) and Oravec v. Sunny Isles Luxury Ventures, L.C., 527

F.3d 1218 (11th Cir. 2008), indicated that the compiler’s choices as to selection

coordination, or arrangement are the only portions of a compilation, or here,

architectural work, that are even entitled to copyright protection. Accordingly, any

similarity comparison of the works at issue here must be accomplished at the level

of protected expression2 — that is, the arrangement and coordination of those

2
The Feist Court further explained:
This protection is subject to an important limitation. The
mere fact that a work is copyrighted does not mean that every
element of the work may be protected. Originality remains the
sine qua non of copyright: accordingly, copyright protection may
extend only to those components of a work that are original to the
author.

8
common elements (“selected” by the market place, i.e., rooms, windows, doors,

and “other staple building components”). In undertaking such a comparison it

should be recalled that the copyright protection in a compilation is “thin.” Feist,

499 U.S. at 349, 11 S. Ct. at 1289. Moreover, as the Second Circuit has noted, the

substantial similarity inquiry is “narrowed” when dealing with a compilation. Key

Publications, Inc. v. Chinatown Today Publ’g Enter., Inc., 945 F.2d 509, 514 (2d

Cir. 1991).

Thus, when viewed through the narrow lens of compilation analysis only the

original, and thus protected arrangement and coordination of spaces, elements and

other staple building components should be compared.3 We have recognized that

summary judgment may be inappropriate in certain types of copyright

Feist at 348, 111.S.Ct. at 1289.

3
There are three types of work that are entitled to copyright
protection—creative, derivative, and compiled. Copyrights in
these three distinct works are known as creative, derivative, and
compilation copyrights. An example of a creative work is a novel.
An example of a derivative work is a screenplay based on a novel;
it is called “derivative” because it is based on a preexisting work
that has been recast, transformed, or adapted. An example of a
compilation is [the floor plans at issue in this case.] The
[Copyright] Act has created a hierarchy in terms of the protection
afforded to these different types of copyrights. A creative work is
entitled to the most protection, followed by a derivative work, and
finally by a compilation. This is why the Feist Court emphasized
that the copyright protection in a factual compilation is “thin.”

Warren Publishing, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1515 n. 16 (11th Cir. 1997)
(citation omitted).

9
infringement cases. However, we have approved the use of summary judgment

particularly in cases where: (1) because access has been established, the crucial

issue is substantial similarity; (2) there may be substantial similarity with respect to

the non-copyrightable elements of the two works compared; and, (3) as to the

protectable elements, there is substantial dissimilarity. See Oravec 527 F.3d at

1223; Beal v. Paramount Pictures, Corp. 20 F.3d 454, 459-60 (11th Cir. 1994). In

fact, when the crucial question in a dispute involving compilations is substantial

similarity at the level of protectable expression, it is often more reliably and

accurately resolved in a summary judgment proceeding. 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. The judge understands the concept of the idea/expression

dichotomy and how it should be applied in the context of the works before him.

As we have observed: “This distinction — known as the idea/expression

dichotomy — can be difficult to apply, as there is no bright line separating the

ideas conveyed by a work from the specific expression of those ideas.” Oravec,

527 F.3d at 1224. Moreover, in examining compilations wherein only the

arrangement and coordination of elements which by the nature of the work (here

architectural floor plans) are sure to be common to each of the works and are not

10
copyrightable themselves (spacial depictions of rooms, doors, windows, walls,

etc.), the already difficult tasks may become even more nuanced. Because a judge

will more readily understand that all copying is not infringement, particularly in

the context of works that are compilations, the “substantial-similarity” test is more

often correctly administered by a judge rather than a jury — even one provided

proper instruction. The reason for this is plain — the ability to separate protectable

expression from non-protectable expression is, in reality, a question of law or, at

the very least, a mixed question of law and fact. It is difficult for a juror, even

properly instructed, to conclude, after looking at two works, that there is no

infringement where, say, 90% of one is a copy of the other, but only 15% of the

work is protectable expression that has not been copied. Part of the problem,

which we have recognized, is that the term “substantial similarity” has not always

been used with precision. Beal, 20 F.3d at 459 n. 4. When courts have dealt with

copyright infringement claims involving creative types of works, “substantial

similarity” has been defined as existing “where an average lay observer would

recognize the alleged copy as having been appropriated from the copyrighted

work.” Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829

(11th Cir. 1982) (quotation marks and citation omitted) (the first copyright case

decided by the Eleventh Circuit after its split-off from the “old” Fifth Circuit

11
involving a soft sculpture doll, a creative work that was to be later known as a

“Cabbage Patch Kid”). However, as noted above, while a creative work is entitled

to the most protection, a compilation is entitled to the least, narrowest or “thinnest”

protection. See SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1271

(11th Cir. 2001); see also Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 586,

114 S. Ct. 1164, 1175 (1994); Harper & Row Publishers, Inc. v. Nation

Enterprises, 471 U.S. 539, 563, 105 S. Ct. 2218, 2232 (1985). Accordingly, when

courts have examined copyright infringement claims involving compilations the

definition of “substantial similarity” has been appropriately modified to accentuate

the narrower scope of protection available, to wit:

Not all copying constitutes infringement, however, see Feist,
449 U.S. at 361, 111 S.Ct. At 1296, and therefore we have
emphasized that the substantial similarity analysis “must focus on
similarity of expression, i.e., material susceptible of copyright
protection.” Beal, 20 F.3d at 459, n. 4; see also Leigh [v. Warner
Bros., Inc., 212 F.3d 1210] at 1214 (stating that a copyright plaintiff
“must establish specifically that the allegedly infringing work is
substantially similar to the plaintiff’s work with regard to its protected
elements”).

Oravec, 527 F.3d at 1224 (emphasis in original) (involving a dispute over

architectural plans); see also BellSouth, 999 F.2d 1436 (telephone directories);

Warren Publ’g Inc., 115 F.3d 1509 (cable television fact books); Bateman v.

Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996) (computer code); MiTek

12
Holdings, Inc. v. Arce Eng’g, Inc., 89 F.3d 1548 (11th Cir. 1996) (computer code);

Leigh, 212 F.3d 1210 (photographs).

Here the district court carefully compared the protectable aspects of the two

floor-plans at issue, thus focusing only on the narrow arrangement and

coordination of otherwise standard architectural features. At the conclusion of its

analysis identifying many dissimilarities or differences in the two floor plans, the

court made essentially the same ruling that we approved of in Oravec: “At the

level of protected expression, the differences between the designs are so significant

that no reasonable, properly instructed jury could find the works substantially

similar.” Oravec, 527 F.3d at 1227.

III. CONCLUSION

Here the appellant, plaintiff below, contends that the district court erred in

focusing its comparison of common architectural elements in two designs for a

four-bedroom house on the dissimilarities between the two floor plans. Given that

the plans at issue were protected by compilation copyrights which were “thin,” the

district court correctly determined that the differences in the protectable expression

were so significant that, as a matter of law, no reasonable properly-instructed jury

of lay observers could find the works substantially similar. Accordingly, the

13
district court did not err in granting summary judgment to the appellee, the putative

infringer.

AFFIRMED.

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