Home Design Services, Inc. v. Turner Heritage Homes, Inc.
Home Design Services, Inc. v. Turner Heritage Homes, Inc.
Opinion of the Court
ORDER
Plaintiff Home Design Services, Inc. (“Home Design”) filed this suit against Defendants for copyright infringement of an architectural home design titled “HDS-2089,” claiming that Defendants built 165 infringing homes as part of their “Lau
Home Design is a residential design firm that sells pre-drawn house plans through magazine publications and websites. The company serves different clients, including builders who seek routine designs with square-footage specifications, individuals who want a custom home from scratch, and those who want to modify one of Home Design’s stock plans for building. The price of Home Design’s stock plans varies based on square footage, but those purchased for a one-time use typically cost around $1,000.
Two key issues at trial were whether HDS-2089 is an original design deserving of copyright protection, and whether the Turners had access to the design. Home Design’s chief executive officer, James Zirkel, testified that he created HDS-2089 in 1991 for a builder named Bill Silliman.
Much of the testimony at trial focused on the similarities and dissimilarities between HDS-2089 and Defendants’ Laurent and Dakota plans. Zirkel compared the HDS-2089 floor plan with one of the first few Laurent homes that Defendants built.
Home Design’s expert Kevin Alter compared HDS-2089 to the Laurent and Dakota designs and testified that he found the plans “extraordinarily similar,” to the point he felt the HDS-2089 may have been copied. Alter noted that “the overall shape, the massing, the individual layout of the rooms is the same.
Defense expert Robert Koch reviewed HDS-2089 and another Laurent design, and identified substantial dissimilarities between the designs, many of which he attributed to the Laurent’s more “traditional’’ design as compared to the HDS-2089, which he felt was designed to be a “modern,” “casual,” and “relaxed” home. According to Koch:
• The entire elevation of the Laurent is different than the HDS-2089, and includes “a very expensive front porch that reache[s] from the front door all the way over [to] the bedroom ... on the opposing side,” a feature that is missing from the HDS-2089;
• The entry in the Laurent has a single door with walls and formal cased openings separating the spaces in the foyer, but the entry in HDS-2089 has double doors and no cased openings or headers above the walls in the foyer, causing a less formal and more open environment;
• The Laurent’s family room has more traditional French doors with flanking formal windows, whereas the HDS-2089 has a modern sliding-glass door that creates a more casual feel;
• The backdoor to the Laurent’s screened porch swings inward, whereas the backdoor in HDS-2089 swings outward to a covered patio;
• The nook in the Laurent has separate windows, reflecting a traditional design, whereas the nook in HDS-2089 has one continuous glass partition, which creates a more modern appearance;
• The Laurent’s master bedroom has a single door with a formal set of conventional windows, but HDS-2089 has double doors with a single high window located above the bed’s headboard, a more modern feature;12
• The home’s porches have different configurations and columns;
•The fireplace in the Laurent is in a different location, designed specifically to accommodate and create space for a flat-screen television, a feature that is missing in the HDS-2089;
• The hallways have different dimensions and openings;
• Only the Laurent has a door between the master bedroom and the master bathroom;
• The water closets are positioned differently, causing a difference in hallway areas between the nooks and the master bedrooms and better obscuring the toilet from view in the Laurent;
■ The master bathrooms have a “totally different” configuration, including a more traditional door shower in the Laurent versus a more modern door-less shower in the HDS-2089;
■ The master bathroom in the Laurent has a linen closet separating the bathtub from the shower, whereas HDS-2089 has the linen closet between the water closet and the shower;
• The door between the garages and the mud rooms swing in different directions;
*1209 •The Laurent’s kitchen has cabinetry-next to the stove range, but HDS-2089 has a desk;
•The wall that separates the family room and the kitchen in HDS-2089 does not extend all the way to the ceiling like it does in the Laurent, which again creates a more “casual,” “open,” and “informal” space in the HDS-2089;
• The secondary bathrooms have different style counter-tops, which affect access to the water-closet basin;
• There is no linen closet in the Laurent’s pool bathroom like the one in HDS-2089;
• The secondary bedrooms have different windows and dimensions; and the living rooms have different angled walls abutting the family rooms, as well as different ceiling heights.13
On the matter of damages, Home Design sought to demonstrate that the licenses for each of the infringing houses would have cost $216,830, and that this amount reflected its actual damages in the form of lost revenues on design sales. See Doc. 425, at 154. To that end, Home Design submitted testimony from Zirkel indicating the standard prices of its floor plans, and argued in closing that the appropriate measure of damages is the amount of revenue it lost on the 165 Laurents and Dakotas, assuming Defendants had purchased each individual floor plan for a one-time use.
■ Turner Heritage Homes submitted evidence of the prices it charged in 2001 for various plans in different geographic locations. According to Doug Turner, the difference in pricing depended on the square footage, changes in design features, and location (including land cost), but that the “market didn’t see a lot of value in a particular plan” and that there was not an amount added to the price due to the floor plan itself. According to Doug Turner, the total operating profit Turner Heritage Homes and the selling companies received from the construction and sale of the Laurent and Dakota designs was approximately $7.36 million.
Turner Heritage Homes submitted its financial statements, which showed that the company (including its selling companies) had a net income of $451,293 in 2000. The statements reflect payments of cash dividends to investors, mostly to Doug and Fred Turner, of $430,000 during the year 2000, a majority of which they loaned back to the company as capital for the upcoming year. Doug Turner said that although he hoped the loans would be repaid, all of the money he loaned to the company was lost when the real estate market collapsed around 2008. He stated that he was paid between $60,000 and $100,000 in salary in 2000, in addition to earning about 35% of the total payments to investors. He also testified that although Fred Turner was not paid a salary, he received about 55% of the investor payments.
Defendants presented the testimony of Henry Fishkind, an economist, who also conducted an extensive evaluation of Defendants’ profits. Fishkind took the parties’ stipulated figures for gross profits on the Laurent and Dakota sales, totaling $7,361,772, and subtracted expected administrative expenses of $4,562,326. and interest expenses on mortgages and loans of $1,330,776, which, according to Fishkind, left only about $1.4 million in earnings. From there, Fishkind determined that all remaining profits were attributable either to appreciation in land holdings ($1,720,-327), or to payments for “returns on equity” ($2,629,325) in the form of investor dividends that were mostly paid to the Turners. The result, according to Fish-kind, was a loss to Defendants on the Laurent and Dakota sales at issue. Thus, Fishkind concluded, there was no profit attributable to Defendants’ use of the Laurent and Dakota home, designs.
At the close of trial, the jury awarded $127,760 in actual damages, but nothing for the Defendants’ profit from the infringement.
Discussion
At the conclusion of Home Design’s case-in-chief, Defendants moved for Judgment as .a Matter of Law on liability. The parties argued the motion, and the Court took the matter under advisement. Subsequently, Home Design moved for Judgment as a Matter of Law in regards to damages, which the Court also took under advisement. After the jury’s verdict, the Court ordered the parties to submit written briefs on their motions for Judgment as a Matter of Law, which they did. In their motion, Defendants argue they are entitled to judgment as a matter of law, or alternatively a new trial, because no reasonable juror could have found that the allegedly infringing works were “substantially similar” to HDS-2089. Defendants also argue that Home Design failed to demonstrate that it has a valid copyright in HDS-2089, or that Fred Turner is individually liable. Home Design moves for judgment as a matter of law, or alternatively for a new trial, on the jury’s rejection of its claim for profit damages.
Motion for Judgment as a Matter of Law&emdash;Infringement
Judgment as a matter of law is appropriate “[i]f a party has been fully.
The United States Constitution provides that “Congress shall have Power ... To promote the Progress of Science ... by securing for limited Times to Authors ... the exclusive Right to their respective Writings .... ” U.S. Const, art. I, § 8, cl. 8. Pursuant to that authority, the Copyright Act extends copyright protection to “original works of authorship fixed in any tangible medium of expression,” 17 U.S.C. § 102(a), and gives copyright owners certain exclusive rights, such as the rights to reproduce the works and prepare derivative works based upon the copyrighted work. 17 U.S.C. § 106. Works of authorship include architectural works, like the home designs at issue in this case. See Intervest Constr., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914, 919 (11th Cir. 2008). An architectural work “is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” 17 U.S.C. § 101. The protected elements of an architectural work include “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., such as “common windows, doors, and other staple building components,” which are instead “ideas” exempt from copyright protection. Intervest, 554 F.3d at 919; see also 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea .... ”); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (“The most fundamental axiom of copyright law is that no author may copyright his ideas .... ”).
For copyright infringement, a plaintiff must prove: “(1) ownership of a valid copyright, and (2) copying of protect-able elements.”
Having carefully reviewed the models at issue in the present case in light of Inter-vest, the Court finds many of the same dissimilarities. At trial, Robert Koch identified numerous, material differences between the HDS-2089 and the Laurent and Dakota designs, many of which he believed were included based on the overall style of the home: traditional versus modern. For example, the porches are entirely distinct; the elevations are different; the fireplaces are in different locations; the hallways have different dimensions and openings; the nooks have different window designs; the water closets are positioned differently; the master bathroom in the Laurent has a linen closet separating the bathtub from the shower, which has a door-entry, but HDS-2089 places the linen closet between the water closet and the shower, which has a doorless entry; the Laurent’s kitchen has cabinetry next to the stove range, but HDS-2089 has a desk; the wall separating the family room and the kitchen in HDS-2089 does not extend all the way to the ceiling like it does in the Laurent; there is no linen closet in the Laurent’s pool bathroom like there is in HDS-2089; the secondary bedrooms have different windows and dimensions; and the living rooms have different angled walls abutting the family rooms, as well as different ceiling heights. Koch also identified differences in doors and doorway designs throughout each model.
In light of Intervest, the Court finds that no jury following the Court’s instructions on the law could reasonably find the Laurent and Dakota designs substantially similar to HDS-2089 given the amount of significant dissimilarities between the plans at the level of protected expression. To find infringement on this record, the jury in this case must have disregarded the significant differences that existed at the level of protected expression and focused instead on the unprotected similarities in the designs. This is erroneous as a matter of law. See Intervest, 554 F.3d at 919 (stating that “any similarity comparison of the works at issue ... must be accomplished at the level of protected expression”); Doc. 412, at 29; Doc. 425, at 130 (instructing the jury that “overall similarity in look and feel will not outweigh significant differences in the designs”). See also, e.g., David Weekley Homes, LLC, 548 F.Supp.2d at 1313-14 (finding similarities in general layout between the disputed home designs, but concluding that no reasonable jury could find the designs substantially similar due to differences in the floor plans, facades, and roofs); Building Graphics, 866 F.Supp.2d at 544-45 (finding a number of differences between the home designs at issue such that no reasonable jury could find defendant’s designs substantially similar to plaintiffs plans); Miller’s Ale House, 702 F.3d at 1326-27 (affirming district court’s grant of summary judgment to defendant due to differences in the respective floor plans, despite similarities in their general layouts).
Having reached this conclusion regarding infringement, the Court need not address whether Home Design owns a valid copyright, or whether Fred Turner may be held individually liable. The Court will, however, consider Defendants’ arguments in the context of its alternative motion for a new trial.
Defendants’ Motion for New Trial
A party may include an alternative request for a new trial under Rule 59 in its Motion for Judgment as a Matter of Law. See Fed.R.Civ.P. 50(b). “If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed.” Fed.R.Civ.P. 50(c)(1). Pursuant to Rule 59, the court has the discretion to grant a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court,” Fed.R.Civ.P. 59(a), including on grounds “that the verdict is against the clear weight of the evidence.” B & F System, Inc. v. LeBlanc, No. 7:07cv192, 2012 WL 2529191, at *8 (M.D.Ga. June 29, 2012) (quoting Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001)). However, because the court should not substitute its own judgment for that of the jury’s, “new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great-not merely the greater-weight of the evidence.” Id. (quoting Lipphardt, 267 F.3d at 1186).
Defendants base their arguments for a new trial on three grounds. First, Defendants argue that a new trial is warranted on the question of infringement.
Plaintiffs Motion for Judgment as a Matter of Law or for New Trial — Damages
Home Design moves for Judgment as a Matter of Law, pursuant to Rule 50, regarding the jury’s failure to award damages in profits attributable to the infringement, and alternatively moves for a new trial on damages pursuant to Rule 59. Home Design argues that the undisputed evidence showed that Doug and Fred Turner received $2,366,392.50 in distributions attributable to the revenues from the sales of Defendants’ Laurent and Dakota homes, and that these funds were paid to the Turners as profit. Home Design asks the Court to overturn the jury’s verdict and enter judgment jointly and severally against all Defendants in the amount of $2,366,392.50. Home Design alternatively
Assuming infringement is proven, the plaintiff may recover his or her “actual damages and any additional profits of the infringer ... that are attributable to the infringement and are not taken into account in computing the actual damages.” 17 U.S.C. § 504(a)(1) & (b). To prove actual damages, the plaintiff must “demonstrate a ‘causal connection’ between the defendant’s infringement and an injury to the market value of the plaintiffs copyrighted work at the time of infringement.”
The essence of Home Design’s argument is that the jury was obligated to find from the evidence that the “return on equity” payments made to the Turners reflected profits solely attributable to the infringing home designs. There are several flaws in this argument. First, even assuming the “return on equity” payments constitute “profit” to the Turners rather than a “deductible expense” of Turner Heritage Homes, see 17 U.S.C. § 504(b), the jury reasonably could have found that the Defendants earned no profits actually attributable to the offending home designs. There was plenty of evidence on which the jury could have attributed profits to rapidly rising land values, location, square footage, a home’s detailing and curb appeal, and the overall quality of construction. Fishkind testified, for example, that Defendants’ net profits were wholly attributable to land value. See Doc. 424, at 258-59. In addition, Doug Turner testified that “the value [that] is typically generated
There was also evidence to support a finding that Defendants did not earn any profit on the sale of its homes. The parties stipulated that the selling companies’ gross profits related to the 165 infringing homes was $1,789,925, and that Turner-Heritage Homes’s gross profits relating to those same homes was $5,571,797. See Doc. 424, at 236. From those figures, defense expert Henry Fishkind deducted administrative expenses of $4,562,326 (including items such as salaries, office rents, costs of supplies), and concluded that the companies’ total earnings before interest and taxes were $2,799,396. See id. at 242. Fishkind then deducted interest expenses on the companies’ lines of credit and mortgages totaling $1,330,776, which he described as a common expense for home-builders, id. at 245, leaving approximately $1.4 million in net profit from the sale of the subject homes. See id. at 257. In determining the origin of these profits, Fishkind identified an estimated profit due to land appreciation of $1,720,327, which he explained resulted from the speculative bubble and rising land prices from 2000 to 2008. See id. at 246-48. After subtracting this amount, Fishkind determined there was no profit left over, and that the Defendants had incurred a loss on their Laurent and Dakota homes. Thus, the jury reasonably could have found that any net “profit” (approximately $1.4 million) had been fully accounted for, in the form of profits attributable to land appreciation, such that there was simply no profit attributable to any particular home design.
For these reasons, it is ORDERED:
1. Defendants’ Motion for Judgment as a Matter of Law (Doc. 429) is GRANTED in part regarding the jury’s finding of infringement and DENIED in part as moot regarding validity and the individual liability of Fred Turner.
2. Defendants’ Motion for a New Trial (Doc. 429) is conditionally DENIED regarding the jury’s finding of infringement, validity, and the individual liability of Fred Turner.
3. Plaintiffs Motion for Judgment as a Matter of Law (Doc. 428) regarding profits is DENIED.
4. Plaintiffs Motion for a New Trial (Doc. 428) regarding profits is conditionally DENIED.
5. Plaintiffs Motion for Leave to File a Reply (Doc. 434) is DENIED as moot.
6. Plaintiffs Motion to Exclude the Testimony of Defendants’ Expert Robert
7. Plaintiffs Motion for a Curative Instruction to the Jury (Doc. 394) is DENIED as moot.
8. In light of the Court’s rulings on the parties’ renewed Motions for Judgment as a Matter of Law, the parties’ initial Motions made in open court (Docs. 408, 410) are DENIED as moot.
9. The Clerk is directed to enter final judgment in favor of Defendants and against Plaintiff.
. Home Design filed an amended complaint in March 2009. The case was initially assigned to Judge Stephen P. Mickle of this Court, who denied Defendants’ Motion for Summary Judgment after a long discovery period. See Doc. 224. The parties then mediated the case, without success, and the case was transferred to the undersigned on June 3, 2011. See Doc. 317. In June 2011, Defendant Turner Heritage Homes filed for Chapter 11 bankruptcy, resulting in an automatic stay of the instant case through August 2013. See Docs. 331 & 345.
. Also pending before the Court are Plaintiff’s Motion for Leave to File a Reply (Doc. 434); Plaintiff’s Motion to Exclude the Testimony of Defendants’ Expert Robert Koch (Doc. 393); Plaintiff's Motion for a Curative Instruction to the Jury (Doc. 394); and the parties' initial Motions for Judgment as a Matter of Law made in open court (Docs. 408 and 410).
. According to Zirkel, a custom plan for a 3,000 square foot home typically costs $7,000, whereas a builder’s plan for the same home costs $4,000 plus an additional "reuse fee” each additional time the builder uses the plan.
. Some of the selling companies were corporate entities, such as Summerbrook Homes, Inc. Doug Turner was listed as its president and .director, and Fred Turner was titled the chief executive officer. According to Doug Turner, the companies have since been sold and closed. He also said that cumulatively, the companies took a loss and that “[t]here was no money made in the end.”
. Turner Heritage Homes submitted invoices reflecting payments to Creative Residential Design.
. Zirkel testified that he also designed a plan for Silliman called the "Timberwood,” as well as a plan titled "HDS-2041,” but that he did not use the Timberwood to develop HDS-2089 and that HDS-2041 was not related to HDS-2089 in any way. Zirkel also testified about the differences among the works. For example, Zirkel stated that the Timberwood and HDS-2089 have different master bathrooms, pantries, front doors, and hallways; HDS-2041 and HDS-2089 have differences in their front entries, nooks, master bedrooms, master bathrooms, pool bathrooms, and hallways. Zirkel said that he found a total of forty-four major differences in HDS-2041 and HDS-2089. In an effort to counter Home Design's position that HDS-2089 was original to the author, the defense read the deposition of Michael Sopoliga into evidence at trial. Sopoliga, who worked for Home Design from 1987 to 1997, testified that Zirkel was nicknamed “Edward Scissorhands” because he was often seen with stacks of plan books and scissors, cutting different designs. Sopoliga said that in the time he worked for Home Design between 1987 and 1997, he never saw Zirkel create an original home design without having the aid of "bits and pieces of other designs.” •
. The registration subsequently was amended and designated as an architectural work instead of a graphic work. See 17 U.S.C. § 102(a); Oravec v. Sunny Isles Luxury Ventures; L.C., 527 F.3d 1218, 1228 (11th Cir. 2008) ("The holder of a copyright in an architectural plan has two forms of protection, one under the provision for an 'architectural work’ under 17 U.S.C. § 102(a)(8), and another under the provision for a ‘pictorial, graphical, or sculptural work' under 17 U.S.C. § 102(a)(5).”).
. Given that Defendants allegedly built over 160 distinct homes using their Laurent and Dakota plans, and that some of their Laurent and Dakota designs were derivatives of earlier ones, different versions of the Laurent and Dakota plans were admitted into evidence at trial. For illustration purposes, Zirkel was asked to compare the HDS-2089 to the third Laurent home that Defendants built. Subsequent witnesses compared the HDS-2089 with other Laurent homes. Although the parties' use of distinct Laurent plans was potentially confusing to the jury, neither party objected.
.For example, Zirkel testified that the Laurent has a single front-door, but HDS-2089 has double doors; the Laurent’s front porch is flush with the front bedroom and garage, but HDS-2089’s porch projects beyond those thresholds; the foyer of the Laurent has archways and columns that lead into the living spaces, and although HDS-2089 has openings that lead into the same rooms, they are either not arched or lack the columns; and that the Laurent has a squared wall adjoining the foyer, living room, and family room, but HDS-2089 has an angled wall. Zirkel identified other differences with this one particular Laurent model, including that the entry to the back hallway in the Laurent is an archway, but the entry to the back hallway in HDS-2089 is squared and has a sliding pocket-door; the secondary pool bathroom has no linen closet in the Laurent, but there is a linen closet in HDS-2089; the two designs have different windows in terms of size and location in the living rooms, back bedrooms, and master bedrooms; the Laurent has vaulted ceiling's in the master bedroom, and HDS-2089 has a ten-foot flat ceiling; the ceilings in the secondary bedrooms are also different heights; the Laurent has a ten-foot ceiling in the living room, but HDS-2089 has a twelve-foot ceiling in that area; the angled walls in the Laurent’s breakfast nook are asymmetrical and have two windows, but the angled walls in HDS-2089’s nook are symmetrical and have one window with a soffit that runs along the walls; the kitchen in the Laurent is larger than the one in HDS-2089, and the dishwashers are in different locations in relation to the sinks; HDS-2089 has a built-in desk in the kitchen that is not present in the Laurent; the water closets in the master bathrooms have toilets facing different directions, which leads to a deeper space in the Laurent's hallway adjoining the kitchen than the niche in HDS-2089; the Laurent has a smaller enclosed shower than the one in HDS-2089, which includes an additional walk-in area; the master closet in the Laurent is four inches wider than the one in HDS-2089; and, finally, the master bedroom in HDS-2089 has built-in architectural features like plant shelves that do not exist in the Laurent. Zirkel also identified differences between the HDS-2089 and other Laurent’s, including Plaintiff's Exhibits 71.84, 71.68, 71.54, and 71.47.
. Alter defined the term "massing” as "the overall shape of the volume, the shape, the particularities of [a home plan's] overall configuration.”
. Alter also found that the thickness of a wall in HDS-2089’s bathroom was necessary to accommodate plumbing, and although the
. According to Koch, the Laurent's single bedroom door was intended to restrict views into the master bedroom from the primary living areas, whereas the HDS-2089 allowed a "transparent view” from those spaces. In addition, Koch testified that the relatively high positioning of the single window in the master bedroom of the HDS-2089 "completely change[s] the character of the room.”
. Koch also reviewed the Dakota plan in Defendant’s Exhibit 212(c), and identified various dissimilarities in comparison to HDS-2089. On cross examination, Koch acknowledged that not all of the Laurent homes have the same dissimilarities as one another.
. Regarding its actual damages, Home Design also relied on the testimony of defense expert, Henry Fishkind. See Doc. 425, at 154.
. Joint Exhibit 1 was admitted into evidence on the opening day of trial. Joint Exhibit 1 lists the Laurent homes that Defendants constructed between July 2000 and September 2008, shows each home's sale price, direct costs incurred by the selling company (ex-eluding employee salaries, overhead costs, and administrative expenses), the amount paid to Turner Heritage Homes by the selling company for the construction, direct costs incurred by Turner Heritage Homes in connection with the actual construction (again, excluding employee salaries, overhead costs, and administrative expenses), and an ultimate gross profit figure based on the difference between the sales price and the job cost.
.The parties stipulated that the selling companies’ gross profits related to the 165 infringing homes was $1,789,925, and that Turner Heritage Homes’s gross profits relating to those same homes was $5,571,797, for a total of $7,361,772. See Doc. 424, at 236.
. The jury verdict form specifically asked the jury to determine the “amount of actual damages [that Home Design] has suffered as a result” of Defendants’ infringement. See Doc. 414, at 5. The amount the jury attributed to actual damages reflects the amount of Home Design’s lost design fees for the 165 infringing homes Fishkind had calculated under the first of three distinct calculations he performed, which resulted in the highest measure of actual damages to Home Design.
. Many of the arguments made in open court are moot in light of the jury’s verdict.
. In addition to a direct infringer, a contributory infringer may be held liable if he has knowledge of infringing activity and "induces, causes or materially contributes to the infringing conduct of another." Cable/Home Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 845 (11th Cir. 1990). Knowledge presents an objective inquiry, that is, did the person "[k]now, or have reason to know” of the activity. Id. “An individual, including a corporate officer, who has the ability to su
. The Court need not address the other stat- • utory requirements, such as registration, because the parties' Motions raise only the issue of originality. See 17 U.S.C. § 411(a) ("[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”); 37 C.F.R. 202.11(d)(3) (providing that building designs published (or buildings actually constructed) before December 1, 1990 cannot be registered); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) (finding that Section 411(a)'s registration requirement is not jurisdictional).
. Patent law, rather than copyright law, is designed to protect innovative ideas. See Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 98 L.Ed. 630 (1954) ("Unlike a patent, a
. The Intervest court noted additional dissimilarities in the remaining bedrooms. See 554 F.3d at 917. For example, the court noted that the entrances and closets are different in the middle bedroom on the left side of each model; that the closet in one model runs nearly the entire length of one wall whereas the closet in the other model is deeper, smaller, and occupies only a corner of the bedroom. Id.
. For example, Koch testified that the backdoor to the Laurent’s screened porch swings inward, whereas the backdoor in HDS-2089 swings outward to a covered patio; the Laurent's master bedroom has a single door with a formal set of conventional windows on the primary bed wall, but HDS-2089 has double doors with a high window located above the bed; the Laurent has a door between the master bedroom and the master bathroom, whereas the HDS-2089 does not; the door between the garages and the mud rooms swing in different directions.
. If the Court’s decision is reversed on appeal, the Eleventh Circuit presumably will find that the jury's verdict on the question of substantial similarity should stand, as there is no direct evidence of copying in this case, but rather a suggestion of copying by the fact of Defendants’ access to the HDS-2089, such that the issue of infringement depends on the substantially similar inquiry. See Miller’s Ale House, 702 F.3d at 1325; David Weekley Homes, LLC, 548 F.Supp.2d at 1313.
. The Court considers Home Design’s motion on the issue of damages as if the Court’s decision on the question of "substantial similarity” is overturned on appeal.
. Once the plaintiff establishes a reasonable probability of this connection, "the burden shifts to the infringer to show that the damage would have occurred had there been no taking of copyrighted expression.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 541, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985).
. In cases of multiple defendants, the general rule is that "all infringers are jointly and severally liable for plaintiffs' actual damages, but each defendant is severally liable for his or its own illegal profit; one defendant is not liable for the profit made by another.” Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 519 (9th Cir. 1985) (emphasis in original); see also FSC Franchise Co., LLC v. Express Corp. Apparel, LLC, No. 8:09cv454, 2011 WL 1226002, at *8 (M.D.Fla. Feb. 28, 2011), report and recommendation adopted, 2011 WL 1153840. However, joint and several liability may extend to an infringer's profits if the defendants act as partners, joint venturers, or partners-in-fact. See Belford, Clarke & Co. v. Scribner, 144 U.S. 488, 507-08, 12 S.Ct. 734, 36 L.Ed. 514 (1892); Nelson-Salabes, Inc. v. Morningside Dev., LLC, 284 F.3d 505, 517-18 (4th Cir. 2002); Frank Music, 772 F.2d at 519-20; FSC Franchise, 2011 WL 1226002, at *8; 3 Nimmer on Copyright § 12.04.
. Fishkind testified that it was his opinion that there was no profit attributable to any particular home design. See Doc. 424, at 251 & 259-60.
. Based on this same testimony, the jury reasonably could have found that the companies’ profits were ultimately reduced to zero due to the difficult real estate market condi
Reference
- Full Case Name
- HOME DESIGN SERVICES, INC. v. TURNER HERITAGE HOMES, INC.
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- 3 cases
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