United States District Court, N.D. Ohio, Western Division
G. Carr Sr. U.S. District Judge
a copyright-infringement case.
Design Basics, LLC (DB), creates, markets, and licenses
architectural plans for single-family homes. (Doc. 58 at
¶1). It contends that defendants - Forrester Wehrle
Homes, Inc.; Wehrle Development, Ltd.; and their principals
Jeffrey, Richard, and Joseph Wehrle (collectively, FWH) -
infringed its copyrights in twenty-three architectural plans.
(Id. at ¶¶35-36). The defendants allegedly
did so by copying DB's plans, marketing the copied plans,
creating unauthorized derivative works, and using DB's
plans to build homes. (Id. at ¶¶44-59).
is, inter alia, the defendants' motion for
summary judgment on the issue of substantial similarity.
the parties disagree on the applicable legal standard, and
because the parties' briefs are insufficient to permit me
to determine whether there is a triable issue on the question
of the works' substantial similarity, I issue this order:
1) setting forth the controlling law; and 2) directing the
parties to file supplemental briefs.
prevail on an infringement claim, a copyright holder must
establish that: 1) it owns a valid copyright in the work at
issue; 2) the defendant copied its work; and 3) the copying
was wrongful. Kohus v. Mariol, 328 F.3d 848, 853
(6th Cir. 2003); accord Zalewski v. Cicero Builder Dev.,
Inc., 754 F.3d 95, 100 (2d Cir. 2014).
plaintiff can prove copying “with either direct
evidence of copying, ” or, as DB attempts to do here,
“through an inference of copying.” Robert L.
Stark Enterprises, Inc. v. Neptune Designs Grp., LLC,
2017 WL 1345195, *5 (N.D. Ohio) (Gaughan, J.).
generate an inference of copying, the copyright owner must
show “(1) access to the allegedly-infringed work by the
[infringer] and (2) a substantial similarity between the two
works at issue.'” Id. (quoting
Kohus, supra, 328 F.3d at 853-54).
“[n]ot all copying . . . is copyright infringement,
” Feist Publ'ns, Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340, 348 (1991), the plaintiff must
establish that “the defendant's work is
‘substantially similar' to protectible elements of
the plaintiff's work, ” Sturdza v. United Arab
Emirates, 281 F.3d 1287, 1295 (D.C. Cir. 2002). Thus
“the term substantial similarity is properly reserved
for similarity that exists between the protected elements of
a work and another work.” Zalewski,
supra, 754 F.3d at 101.
determine whether an instance of copying is legally
actionable, a side-by-side comparison must be made between
the original and the copy to determine whether a layman would
view the two works as substantially similar.”
Lennar Homes of Tex. Sales & Marketing, Ltd. v. Perry
Homes, LLC, 117 F.Supp.3d 913, 933 (S.D. Tex. 2015);
see Kohus, supra, 328 F.3d at 857
(“the inquiry in the second prong of the substantial
similarity test should focus on the intended audience,
” which “will ordinarily be the lay
public”) (internal emphasis omitted).
Substantial Similarity, Architectural Works, and the Sixth
Kohus, supra, 328 F.3d at 855, the Circuit
adopted a two-step test to determine whether an original work
and an alleged copy are substantially similar:
[T]he first step requires identifying which aspects of the
artist's work, if any, are protectible by copyright; the
second involves determining whether the allegedly infringing
work is substantially similar to protectible elements of the
artist's work. We approve this method and adopt it.
The essence of the first step is to filter out the
unoriginal, unprotectible elements - elements that were not
independently created by the inventor, and that possess no
minimal degree of creativity - through a variety of analyses.
(Internal citations and quotation marks omitted).
issue in Tiseo Architects, Inc. v. B & B Pools Serv.
& Supply Co., 495 F.3d 344, 345 (6th Cir. 2007), was
whether the district court had “applied the wrong legal
standard in reaching its conclusion that [the
defendant's] design and construction drawings were not
substantially similar to [the plaintiff's] design and
site plan drawings.”
holding a bench trial, the district court in Tiseo
found that the plaintiff failed to prove that “the
architectural drawings at issue” were substantially
similar. Id. at 346-47. According to the Sixth
Circuit, the district court had, in setting forth its
identifie[d] those unoriginal and uncreative parts of Tiseo
Architects' work that are not protectable by copyright.
Then, after extracting those unprotectable aspects of Tiseo
Architects' drawings, the district court compared the
remaining protectable elements to Olson's work, and found
that they were not substantially similar.
Id. at 348.
other words, the district court applied the two-step analysis
from Kohus, supra, and the Sixth Circuit
held that the court was correct to apply that test.
Id. at 345 (“Because the district court
properly analyzed the similarity of the works after filtering
out the unprotectable elements of Tiseo Architects'
drawings, the district court's judgment of the ...