By Blake Stafford
On June 23, 2015, the Fourth Circuit issued its published opinion in Humphreys & Partners Architects, L.P. v. Lessard Design, Inc. In this civil case, architecture firm Humphreys & Partners Architects, L.P. (“HPA”) alleged copyright infringement of its architectural design of a high-rise condominium. The District Court for the Eastern District of Virginia granted summary judgment in favor of the competitor, holding that there was no direct evidence of copying, and no reasonable jury could find that HPA’s building design and the competing building design were extrinsically similar. The Fourth Circuit affirmed, holding that: (1) the extrinsic/intrinsic two-part test governs the “substantial similarity” inquiry in architectural copyright infringement claims; (2) HPA failed to present any direct evidence of copying; and (3) HPA failed to identify specific extrinsic-similarity evidence.
Factual & Procedural Background
In 2000 and 2001, HPA designed “Grant Park,” a 27-story residential tower with 11 units per floor. The design features 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 open into one lobby and six into the other. Each lobby also provides access to a stairwell and either a trash chute or a mechanical/electrical room. This dual-core layout is desirable because residents can travel between the lobbies through an unfinished service corridor, allowing all residents access to both utility rooms and both stairwells. HPA registered the Grant Park design as an architectural work with the United States Copyright Office and received a certificate of copyright registration. The building was constructed in Minnesota in 2004.
In 2008, a developer began planning a high-rise apartment building in Virginia to be called “Two Park Crest.” In 2010, the developer solicited design proposals for this development from three architecture firms, including HPA and Lessard Design, Inc. (“Lessard”), a Virginia-based architecture firm. HPA submitted illustrations of its Grant Park design and discussed the design with the developer. Soon after, the developer informed Lessard that it wanted the Two Park Crest design to feature dual elevator cores connected by a service corridor, and emailed the Grant Park floor plan to Lessard to illustrate this concept. Lessard responded with a final design for a 19-story building with 17 apartments per floor. The Lessard 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, eight would open into one passenger elevator lobby, and nine would open directly into the other. HPA lost the bid to Lessard.
In April 2013, HPA filed suit against the developer, Lessard, and other affiliates (collectively, “Appellees”) alleging copyright infringement under 17 U.S.C. §§ 101–122, arguing that Lessard copied the Grant Park design after receiving it from the developer. The parties filed cross-motions for summary judgment. Supporting Appellees, three expert reports filed by architects concluded that the two designs were not substantially similar. Supporting HPA, one expert declaration by an architect identified nine characteristics that were shared by both buildings. The district court granted summary judgment in favor of Appellees, determining that: (1) there was no direct evidence of copying; and (2) no reasonable jury could find that the two designs were extrinsically similar, as neither the nine features nor their arrangement were eligible for copyright protection, and no evidence was presented that indicated extrinsic similarity between the arrangements of features. HPA timely appealed.
Governing Law: Architectural Copyright Infringement
The Fourth Circuit first summarized the law governing architectural copyright infringement claims. To establish a claim for copyright infringement, the plaintiff must prove: (1) that it owned a valid copyright, and (2) the defendant copied the original elements of that copyright.
For the second prong, the plaintiff can prove the defendant’s copying of original elements through direct or circumstantial evidence. Direct evidence includes party admissions, witness accounts, and errors that are common in both works. Circumstantial evidence includes proof that the alleged infringer had access to the work and that the supposed copy is “substantially similar” to the author’s original work.
To establish “substantial similarity,” the Fourth Circuit expressly held (for the first time in a published opinion) that the “extrinsic/intrinsic two-part test” applies to architectural copyright infringement claims. In this two-part test, the “extrinsic similarity” analysis objectively evaluates external criteria of substantial similarity between the alleged copy and the protected elements of the copyrighted work. This analysis considers the protectability of the work’s individual elements as well as the overall arrangement of the individual pieces as assembled. By contrast, the “intrinsic similarity” analysis implicates the perspective of the work’s intended observer and looks to the total concept and feel of the works.
HPA’s Three Arguments on Appeal
HPA claimed that the district court erred in three respects: (1) by considering the Appellees’ expert reports when resolving the motion for summary judgment; (2) by failing to credit HPA’s direct and circumstantial evidence of copying; and (3) by making various errors of copyright law. The Fourth Circuit rejected each argument in turn.
(1) Expert Reports. HPA first contended that Appellees’ expert reports were “inadmissible hearsay.” Appellees responded that the district court appropriately considered the reports, as they offered evidence that the content of the reports would be admissible through the expert’s testimony at trial. In affirming the district court’s consideration of the expert reports, the Fourth Circuit noted that, in a summary judgment proceeding, courts may consider inadmissible materials if the proponent of the materials submits evidence that it will be possible to put the information into an admissible form. Here, Appellees submitted declarations made under penalty of perjury from the experts attesting that they would testify to the matters set forth in their respective reports. Thus, these reports could be considered for the purposes of Appellees’ motion for summary judgment.
(2) Direct and Circumstantial Evidence of Copying. Next, HPA argued that the district court failed to credit HPA’s direct and circumstantial evidence of copying. HPA submitted that the development of Lessard’s sketches established direct evidence of copying, particularly when viewed in concert with the HPA expert’s deposition testimony. In his deposition testimony, HPA’s expert stated: “It appears that rather than going through the normal iterative design process, that Lessard had a preconceived solution to the design.” The Fourth Circuit held that this was not direct evidence. While the fact that Lessard created the design with more speed and less revision than is customary may be consistent with HPA’s theory that Lessard copied its design, this fact does not itself establish copying.
As evidence of extrinsic similarity, HPA proferred—and the Fourth Circuit rejected—the following:
- Declarations by HPA’s CEO and founder stating that “the 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.” The Fourth Circuit found that these conclusory statements were insufficient to create a genuine dispute of material fact to overcome the motion for summary judgment.
- Declarations by HPA affiliates who worked on the Grant Park project. The Fourth Circuit noted that none of these declarations contained any assertions about the similarity between the designs.
- The declaration and deposition testimony of HPA’s expert that identified nine shared features, stating that these characteristics showed that the two designs arrange and compose both spaces and elements in a substantially similar manner. The Fourth Circuit held that HPA did not claim any protectable interest in any of the nine individual features, and the assertion that their arrangement was extrinsically similar was unsupported by specific evidence, making it conclusory for the purposes of the motion for summary judgment.
(3) Misapplication of Copyright Law. Finally, HPA argued that the district court erroneously applied copyright law. The Fourth Circuit rejected the various points in this argument, finding each of them to be without merit.
Because HPA failed to produce direct evidence of copying, or evidence adequately supporting extrinsic similarity, the Fourth Circuit affirmed the district court’s grant of summary judgment.