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Design Basics, LLC v. Forrester Wehrle Homes, Inc.

United States District Court, N.D. Ohio, Western Division

November 14, 2017

Design Basics, LLC, Plaintiff
Forrester Wehrle Homes, Inc., et al., Defendants


          James G. Carr Sr. U.S. District Judge

         This is a copyright-infringement case.

         Plaintiff 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).

         Pending is, inter alia, the defendants' motion for summary judgment on the issue of substantial similarity. (Doc. 82).

         Because 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.


         To 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).

         The 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.).

         To 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).

         Because “[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.

         “To 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).

         A. Substantial Similarity, Architectural Works, and the Sixth Circuit

         In 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).

         The 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.”

         After 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 verdict:

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.

         In 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 ...

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