PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BUILDING GRAPHICS, INC., a North
Carolina corporation,
Plaintiff-Appellant,
v.
LENNAR CORP.; DRAFTING & No. 11-2200
DESIGN, INC., a North Carolina
corporation; LENNAR CAROLINAS,
LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(3:08-cv-00548-RLV-DSC)
Argued: January 29, 2013
Decided: February 26, 2013
Before DAVIS and KEENAN, Circuit Judges, and
John A. GIBNEY, Jr., United States District Judge
for the Eastern District of Virginia,
sitting by designation.
Affirmed by published opinion. Judge Davis wrote the opin-
ion, in which Judge Keenan and Judge Gibney joined.
2 BUILDING GRAPHICS v. LENNAR CORP.
COUNSEL
ARGUED: Kathryn Gusmer Cole, MOORE & VAN
ALLEN, PLLC, Charlotte, North Carolina, for Appellant. Eric
P. Stevens, POYNER SPRUILL LLP, Raleigh, North Caro-
lina; Thomas C. Wright, ROSE WALKER, LLP, Dallas,
Texas, for Appellees. ON BRIEF: J. Mark Wilson, MOORE
& VAN ALLEN PLLC, Charlotte, North Carolina, for Appel-
lant. Douglas M. Martin, POYNER SPRUILL LLP, Charlotte,
North Carolina, for Appellee Drafting & Design, Inc.
OPINION
DAVIS, Circuit Judge:
This is an appeal from a summary judgment in favor of
defendant in a copyright infringement suit. The infringement
claims arise in connection with designs for several Charlotte,
North Carolina-area homes. The district court granted sum-
mary judgment in favor of defendants-appellees Lennar Cor-
poration and Lennar Carolinas, LLC (collectively, "Lennar"),
and Drafting & Design, Inc., concluding that plaintiff-
appellant Building Graphics, Inc., lacked sufficient evidence
to support a prima facie case of infringement. For the reasons
that follow, we affirm.
I.
Building Graphics, Inc., is a Charlotte architecture firm that
specializes in designing single family homes. In the 1990s,
the firm created and obtained copyrights to the three home
plans at the center of this dispute: the Chadwyck, created in
1993; the Ballantrae, created in 1997; and the Springfield,
created in 1998 (collectively, the "copyrighted plans"). The
copyrighted plans were registered with the United States
Copyright Office as both architectural works and technical
BUILDING GRAPHICS v. LENNAR CORP. 3
drawings. Building Graphics’ principal is Frank Snodgrass,
and its clients include individuals and home builders who pur-
chase its plans to construct new homes.
The copyrighted plans were purchased by Charlotte-area
home builders: the Chadwyck by UDC Homes, Inc.; the Bal-
lantrae by Hampshire Homes, Inc.; and the Springfield by
Evans Ingraham Builders. Snodgrass testified on deposition
that at least one version of both the Ballantrae and Springfield
homes was built in Charlotte, but that he was not sure whether
any Chadwyck homes had been built. The Ballantrae and
Springfield plans have been available on the Internet since
their creation, on the website of the Building Graphics’ affili-
ate Living Concepts, Inc., where both are available to the pub-
lic for purchase as "stock" plans. See www.lchouseplans.com.
UDC Homes, which purchased the Chadwyck plan, made cut
sheets, which provide design specifications, and sales bro-
chures related to the house available to the public.
Lennar builds homes in eighteen states. Before Lennar
enters a market, it conducts a "due diligence" analysis on
other homes being offered in the market. Such a process
involves looking at the homes offered by competitors in the
market, including home plans, floor plans, prices, and features
of competitors’ homes. Lennar stated that the review is lim-
ited to homes currently being built and sold in the market, and
does not include completed neighborhoods. Specifically, Len-
nar’s Jerry Whelan testified on deposition:
Q: As part of the due diligence process in looking for
or in deciding what homes to build, does Lennar ever
look at house plans from local architects?
A: That’s typically not part of the process, no.
Q: As far as you know, it is — the due diligence pro-
cess is limited to looking at competitive builder
offerings?
4 BUILDING GRAPHICS v. LENNAR CORP.
A: Yeah, new home, competitive new home builder
offerings.
Q: You don’t look to see what a competitor was suc-
cessful with in a neighborhood that might be com-
pleted?
A: Typically that’s not the direction of due diligence,
no.
J.A. 619.
In 2001, Lennar was making plans to enter the Charlotte
market. Lennar hired the architecture firm Drafting & Design
to create home plans for it to offer in Charlotte; Drafting &
Design began work on these plans in or around May 2001.
Drafting & Design did not draw up these new home plans
from scratch, however. Lennar delivered to Drafting &
Design hard copy blueprints of a home plan called the "Fair-
fax" and instructed Drafting & Design to base its new home
plans on the Fairfax. Lennar asserted it got the Fairfax plan
from U.S. Homes, which Lennar acquired in 2000. Specifi-
cally, Lennar averred that one of its employees, John Gardner,
delivered the Fairfax plan to Drafting & Design. Gardner
stated that his boss at Lennar instructed him to contact Len-
nar’s Maryland/D.C. Division to obtain copies of the Fairfax
to give to Drafting & Design.
But Gardner was not an employee of Lennar in May 2001,
when Drafting & Design began work on the challenged plans.
Gardner became an employee of Lennar only in December
2001, when Lennar acquired Don Galloway Homes, a Char-
lotte builder by whom Gardner was then employed. Gardner,
as an employee of Don Galloway Homes in May 2001, would
not have had access to the Fairfax plan until Lennar’s acquisi-
tion of Don Galloway in December 2001. Lennar has failed
to provide a satisfactory explanation for exactly how the chal-
lenged plans at issue in this appeal came to be created. As the
BUILDING GRAPHICS v. LENNAR CORP. 5
district court observed, "Defendants have done little to show
that the Fairfax was itself created independently of Plaintiff’s
protected designs." Building Graphics, Inc., v. Lennar Corp.,
866 F. Supp. 2d 530, 535 (W.D.N.C. 2011).
In any event, Drafting & Design ultimately produced a set
of architectural plans based on the Fairfax, which Lennar
named the Summerlin, Hampton, Hudson, Abbey, and Bluff-
ton homes (collectively, the "challenged plans").
Building Graphics alleges the challenged plans infringed on
its copyrights in the Chadwyck, Ballantrae, and Springfield
designs.1 Building Graphics argues that the first floor plans of
the challenged plans are substantially similar to the first floor
plan of its Chadwyck home. Certain similarities between the
floor plans are apparent. Each has a staircase that makes a 90-
degree turn. Each has a den to the right of the foyer. Each
foyer has an angled sightline to the family room. On the left
side of each plan is a "stacked" living room and dining room,
with the living room in the front. Each has a garage on the
right side of the floor, with a laundry room behind the garage.
But there are differences, as well, as summarized by the dis-
trict court:
These differences include variation in the footprint
(or outline) and square footage; room dimensions
(for instance, none of the Summerlin’s rooms were
the same size as those detailed in the Chadwyck
plan); the arrangement of windows in the dining
rooms, living rooms, and family rooms; the orienta-
tion of the rear wall between the kitchen and break-
fast room; the placement of an island in the kitchen;
the positioning of entries to the den; the orientation
of the first-floor powder room; the placement of the
laundry room (with respect to orientation, shape, and
1
Floor plans and renderings of the copyrighted and challenged plans are
included in the appendix to this opinion.
6 BUILDING GRAPHICS v. LENNAR CORP.
entry); the size of the garage and its location of
entry; the placement of the pantry; the placement of
a fireplace; and the size of the foyer and access to
the hallway.
Building Graphics, 866 F. Supp. 2d at 544.
Building Graphics next alleges that the front elevation of
Lennar’s Summerlin home is substantially similar to the front
elevation of its Ballantrae home. Each has a front door set
behind two columns with an arch at the top. Each has three
gables in similar places: one atop the front entrance, one atop
the center of the house, and one over the garage. Each has a
large window with a rounded top above the front door, with
similar window placement on each side of the front door.
Each has a side-load garage. The differences between the
plans were summarized by the district court:
With respect to the Plaintiff’s Ballantrae design and
Lennar’s Summerlin design, the roof lines are differ-
ent—the Summerlin has a hip roof where the Bal-
lantrae has a gable roof; the Summerlin has three
windows across the garage with shutters, whereas
the Ballantrae has only two windows crowned by
arches; the front side of the Summerlin is con-
structed with stone and has a pediment over the
gable, whereas the Ballantrae has brick construction;
and the details within the arched gables on each
house are different.
Building Graphics, 866 F. Supp. 2d at 545.
Finally, Building Graphics alleges that the front elevations
of Lennar’s Hampton and Hudson homes are substantially
similar to the front elevation of its Springfield home. The sim-
ilarities include the three gables on each, placed over the cen-
ter of the house, the center-left, and the garage; the four levels
of the facade, with the garage protruding the farthest, the
BUILDING GRAPHICS v. LENNAR CORP. 7
center-left of the house set back from that, the front door set
back from the center-left, and the right side set back from the
front door. Each has a similarly shaped window over the front
door, as well as the same number and placement of windows
on the right side of the house. The differences were noted by
the district court:
With respect to the Springfield and Lennar’s models,
these differences include the roof lines; the Spring-
field’s brick construction on the sides and rear (in
contrast with the Hampton’s lack thereof); the design
and number of windows; the gables (and placement
of "eyebrows"); and the trimming of the front door.
Building Graphics, 866 F. Supp. 2d at 545.
II.
Building Graphics filed this copyright infringement suit
against Lennar and Drafting & Design in the Western District
of North Carolina on December 2, 2008, seeking damages and
injunctive relief. Defendants filed motions for summary judg-
ment at the conclusion of discovery. The district court granted
the motions on September 30, 2011, concluding there was
insufficient evidence on critical elements of Building Graph-
ics’ infringement claims. Building Graphics, 866 F. Supp. 2d
at 533.2
A copyright infringement claim, as the district court cor-
rectly noted, requires a showing that the defendant copied the
plaintiff’s work and that the defendant’s work is "substan-
tially similar" to the protectable elements of the plaintiff’s
work. Building Graphics, 866 F. Supp. 2d at 539. Because
2
The court denied in part Lennar’s motion as it related to the validity
of Building Graphics’ copyrights. Id. at 538-39. The court found Building
Graphics owned valid copyrights in the plans, as shown by the certificates
of registration issued by the U.S. Copyright Office. Id. at 538.
8 BUILDING GRAPHICS v. LENNAR CORP.
direct evidence of copying is hard to come by, the court
observed that a plaintiff may establish an inference of copying
by showing access to the allegedly infringed work as well as
substantial similarity between the works at issue. Id. To prove
access, the plaintiff must show that the defendant had an
opportunity to view or copy the work. Id. The "mere possibil-
ity" of such an opportunity is not enough. Id. It must be "rea-
sonably possible" that the defendant had access to the
copyrighted work. Id. The court held that Building Graphics
had established only the mere possibility that Lennar had
access to its copyrighted home plans, not the reasonable pos-
sibility of access. Id. at 540-41. The court noted that Lennar’s
due diligence process made it only merely possible that Len-
nar viewed Building Graphics’ homes. Id. at 541. The fact
that the plans were available online also was not enough to
prove access. Id. Furthermore, the fact that Chadwyck cut
sheets or sales handouts were available to the public did not
create a reasonable possibility of access. Id. at 542.
The court further held there was no substantial similarity
between the Building Graphics and Lennar homes. Building
Graphics, 866 F. Supp. 2d at 543-45. Relying on the Eleventh
Circuit opinion in Intervest Construction, Inc. v. Canterbury
Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008), the court
reasoned that Building Graphics’ homes should be considered
"compilations" and thus subject to "thin" copyright protection.
Building Graphics, 866 F. Supp. 2d at 543-44. Given such
thin protection, the court stated there must be a "supersubstan-
tial" similarity between the works to prove infringement. Id.
at 544. Applying this standard, the court held that Building
Graphics’ copyrighted home plans were "sufficiently dissimi-
lar from Defendant’s plans to preclude a finding of infringe-
ment." Id. Further, "a court can find designs to be visually
similar with the same general layout and nonetheless find the
dissimilarities significant enough to preclude a finding of
infringement." Id. The court concluded that "no reasonable,
properly instructed jury could find the works substantially
BUILDING GRAPHICS v. LENNAR CORP. 9
similar," and granted defendants’ motions for summary judg-
ment. Id. at 545.
Building Graphics filed a timely notice of appeal. We have
jurisdiction under 28 U.S.C. § 1291.
III.
This Court reviews de novo a district court’s award of sum-
mary judgment, viewing all facts and drawing all reasonable
inferences in the light most favorable to the nonmoving party.
Ga. Pac. Consumer Prods., LP v. Von Drehle Corp., 618 F.3d
441, 445 (4th Cir. 2010). Summary judgment is only appro-
priate if there is no genuine dispute of material fact. Fed. R.
Civ. P. 56(a).
IV.
Our resolution of this appeal requires an application of
copyright law to architectural works. "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 Cos-
tumes, Inc., 243 F.3d 789, 801 (4th Cir. 2001). Here, there is
no dispute that Building Graphics holds valid copyrights in
the plans at issue. The case thus turns on whether Lennar cop-
ied Building Graphics’ house plans. Copying can be proven
through direct or circumstantial evidence. Id. When direct evi-
dence is lacking, a plaintiff "may create a presumption of
copying by indirect evidence, establishing that the defendant
had access to the copyrighted work and that the defendant’s
work is ‘substantially similar’ to the protected material." Id.
(citing Towler v. Sayles, 76 F.3d 579, 581-82 (4th Cir. 1996)).
To rely successfully on circumstantial evidence of copying,
Building Graphics must first show that it is reasonably possi-
ble that Lennar had access to the Building Graphics plans.
"Access may be shown by demonstrating that the infringer
10 BUILDING GRAPHICS v. LENNAR CORP.
had an opportunity to view or to copy the protected material.
But this showing must establish more than a ‘mere possibility
that such an opportunity could have arisen’; it must be ‘rea-
sonably possible that the paths of the infringer and the
infringed work crossed.’" Ale House Mgmt., Inc. v. Raleigh
Ale House, Inc., 205 F.3d 137, 143 (4th Cir. 2000) (quoting
Towler, 76 F.3d at 582). See also Armour v. Knowles, 512
F.3d 147, 152-53 (5th Cir. 2007) ("To establish access, a
plaintiff must prove that the person who created the allegedly
infringing work had a reasonable opportunity to view the
copyrighted work before creating the infringing work. Indeed,
a bare possibility will not suffice; neither will a finding of
access based on speculation or conjecture." (internal citations,
quotation marks, and insertions omitted)); Art Attacks Ink,
LLC v. MGA Entm’t Inc., 581 F.3d 1138, 1143 (9th Cir. 2009)
("To prove access, a plaintiff must show a reasonable possi-
bility, not merely a bare possibility, that an alleged infringer
had the chance to view the protected work.").
In determining whether Building Graphics has shown that
Lennar had a reasonable possibility of access to the copy-
righted plans, we are guided by our decisions in Towler, 76
F.3d 579, and Bouchat v. Baltimore Ravens, Inc., 241 F.3d
350 (4th Cir. 2000), cert. denied, 532 U.S. 1038 (2001). In
Towler, regarding alleged copyright infringement of a screen-
play, the plaintiff attempted to send a copy of her screenplay,
"Crossed Wires," to director and screenwriter John Sayles. 76
F.3d at 582. But Towler instead sent the screenplay to a com-
pany that had no association with Sayles, and introduced no
evidence from which a jury could draw a reasonable inference
that Sayles ever received the screenplay. Id. at 582-83. Fur-
ther, Sayles testified and introduced evidence showing that he
began work on the allegedly infringing screenplay months
before Towler sent the screenplay to the wrong company. Id.
at 582. We held there was not a reasonable possibility that
Sayles had access to the screenplay. Id. at 583.
Our Bouchat decision is a good example of a case where
reasonable access was shown. There, in 1996, Bouchat, a Bal-
BUILDING GRAPHICS v. LENNAR CORP. 11
timore artist, created a logo when he learned that Baltimore’s
new football team (Cleveland’s old football team) would be
called the Ravens. Bouchat showed his drawings to John
Moag, the chairman of the Maryland Stadium Authority,
which was involved in bringing the Ravens to Baltimore. 241
F.3d at 353. Moag said he would give the drawings to the
Ravens for consideration. Id. At that time, Ravens owner
David Modell occupied the same office suite as Moag. Id.
Bouchat faxed his drawings to Moag on April 1 or 2, 1996,
and received a fax confirmation. Id. On April 2, Modell met
with the NFL to discuss a new Ravens logo, which was
unveiled in June and strongly resembled Bouchat’s design. Id.
We held that a jury was entitled to credit Bouchat’s testimony
and evidence, and that the chain of transmittals from Bouchat
to Modell was "far more than hypothetical," and that Modell
thus had "access" to the drawings. Id. at 354.
Here, Building Graphics has not shown a chain of events
or wide dissemination sufficient to show a reasonable possi-
bility that Lennar had access to Building Graphics’ plans.
While Lennar has not adequately explained how its architec-
ture firm, Drafting & Design, received a copy of the Fairfax
design in May 2001 on which it based the now-challenged
plans, that failing on the part of Lennar does not absolve
Building Graphics of the burden of showing a reasonable pos-
sibility of access. Building Graphics’ principal argument is
that it has shown a reasonable possibility of access through
Lennar’s due diligence process, emphasizing that Lennar’s
representative, Whelan, stated that he was not aware if Lennar
studied Building Graphics designs as part of its due diligence
process. Building Graphics takes this to mean that it is possi-
ble Lennar saw the copyrighted plans. The district court, how-
ever, concluded evidence of this due diligence only
established the "mere possibility" of access. Building Graph-
ics, 866 F. Supp. 2d at 541. We agree.
It is not genuinely disputed that Lennar habitually confined
its due diligence to new homes that were currently on offer
12 BUILDING GRAPHICS v. LENNAR CORP.
and being built in the market — not homes that had been built
years earlier. And (viewed in the light most favorable to
Building Graphics) the record indicates that only a small
number of homes were ever built from the copyrighted plans
— one Ballantrae home, one Springfield home, and no Chad-
wyck homes — further diminishing the possibility of access.
Building Graphics also argues that because two of its plans
— the Ballantrae and Springfield — were available on the
Internet, a reasonable possibility of access can be inferred.
Whelan stated that as part of due diligence, Lennar looks at
house plans online. But Whelan’s testimony made clear the
online review was limited to what its competitors are cur-
rently offering. Because the copyrighted plans were no longer
being built in Charlotte, it is at best a mere possibility that
they would be considered as part of the due diligence process.
Tellingly, no showing has been made that the copyrighted
plans were prominently featured on Building Graphics’ web-
site in such a way that Lennar would easily find them or stum-
ble across them. Nor has a showing been made that there is
a reasonable possibility that the Chadwyck cut sheets were
obtained by Lennar. The mere existence of the cut sheets is
not enough to support an affirmative inference that they fell
into Lennar’s hands.
Whether viewed individually or in the aggregate, the above
facts and circumstances amount to inferences built upon infer-
ences; they do not give rise to more than a mere possibility
of access. We hold, therefore, that Building Graphics has not
marshaled sufficient evidence to support a finding that there
exists a reasonable possibility that Lennar had access to its
copyrighted plans. Accordingly, the district court correctly
concluded that as a matter of law, Building Graphics lacks the
evidence necessary to sustain its claims of copyright infringe-
ment.3
3
Because we find that Building Graphics has not shown a reasonable
possibility that Lennar had access to its copyrighted plans, we need not
BUILDING GRAPHICS v. LENNAR CORP. 13
V.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
and do not reach the second step of the copyright infringement inquiry:
determining whether the challenged and copyrighted plans are substan-
tially similar. We note, however, that in reaching its determination adverse
to Building Graphics on this issue, the district court did not have the bene-
fit of our recent unpublished opinion in Charles W. Ross Builder, Inc. v.
Olsen Fine Home Building, LLC, No. 11-2206, 2012 WL 5447871 (4th
Cir. Nov. 8, 2012), in which we held that the two-part test for determining
substantial similarity — laid out in Universal Furniture International, Inc.
v. Collezione Europa USA, Inc., 618 F.3d 417 (4th Cir. 2010), and earlier
precedent, in which the plaintiff must show that the works are both "ex-
trinsically" and "intrinsically" similar — is applicable to copyright
infringement claims involving architectural works. Were we to reach the
issue, we would find the analysis in Universal Furniture International,
Inc., applicable here.
14 BUILDING GRAPHICS v. LENNAR CORP.
APPENDIX
Building Graphics’ Chadwyck floor plan:
BUILDING GRAPHICS v. LENNAR CORP. 15
Lennar’s Summerlin floor plan:
16 BUILDING GRAPHICS v. LENNAR CORP.
Building Graphics’ Ballantrae elevation:
Lennar’s Summerlin elevation:
BUILDING GRAPHICS v. LENNAR CORP. 17
Building Graphics’ Springfield elevation:
Lennar’s Hampton elevation: