                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-2030


HUMPHREYS & PARTNERS ARCHITECTS, L.P.,

                Plaintiff – Appellant,

          v.

LESSARD DESIGN, INCORPORATED; LESSARD GROUP INCORPORATED;
CHRISTIAN J. LESSARD; CLARK BUILDERS GROUP, LLC; PDT
BUILDERS, LLC; THE PENROSE GROUP; SIXTH PENROSE INVESTING
COMPANY LLC; NORTHWESTERN INVESTMENT MANAGEMENT COMPANY,
LLC; NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,

                Defendants – Appellees,

          and

PENROSE   PARTNERS;   PARK   CREST         SPE    PHASE     I,   LLC;
PENROSE/DONOHOE TYSONS, LLC,

                Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:13-cv-00433-TSE-TCB)


Argued:   May 12, 2015                           Decided:   June 23, 2015


Before SHEDD, DUNCAN, and HARRIS, Circuit Judges.


Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Shedd and Judge Harris joined.
ARGUED: Patrick Andrew Zummo, LAW OFFICES OF PATRICK ZUMMO,
Houston, Texas, for Appellant.   Patrick Joseph Coyne, FINNEGAN,
HENDERSON, FARABOW, GARRETT & DUNNER, LLP, Washington, D.C.;
Antigone Gabriella Peyton, CLOUDIGY LAW PLLC, McLean, Virginia,
for Appellees. ON BRIEF: Walter D. Kelley, Jr., HAUSFELD, LLP,
Washington, D.C.; Jennifer L. Swize, JONES DAY, Washington,
D.C., for Appellant.    Kandis M. Koustenis, CLOUDIGY LAW PLLC,
McLean, Virginia, for Appellees The Penrose Group, PDT Builders,
LLC, Sixth Penrose Investing Company LLC, and Clark Builders
Group, LLC; Christopher P. Foley, FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP, Washington, D.C., for Appellees Lessard
Design, Incorporated, Lessard Group Incorporated, and Christian
J. Lessard; Christopher P. Mead, LONDON & MEAD, LLP, Washington,
D.C., for Appellees Northwestern Investment Management Company,
LLC and Northwestern Mutual Life Insurance Company.




                               2
DUNCAN, Circuit Judge:

      In    this      architectural        copyright         infringement       action,

Plaintiff-Appellant        Humphreys           &    Partners       Architects,       L.P.

(“HPA”) appeals the district court’s entry of summary judgment

in favor of Defendants-Appellees Lessard Design, Inc., Lessard

Group, Inc., and Christian J. Lessard (collectively, “Lessard”);

Clark     Builders    Group,   LLC     (“Clark”);          PDT   Builders,    LLC,    The

Penrose      Group,     and        Sixth    Penrose          Investing       Co.,    LLC

(collectively,         “Penrose”);         and           Northwestern        Investment

Management Co., LLC, and Northwestern Mutual Life Insurance Co.

(collectively,       “Northwestern”).              HPA    claims   that   the   design,

development, ownership, and construction of Two Park Crest, an

apartment     building        in     McLean,        Virginia,      infringed        HPA’s

architectural copyright embodied in Grant Park, a condominium

building in Minneapolis, Minnesota. 1                    The district court awarded

summary judgment to Appellees, primarily because no reasonable

jury could find that the Grant Park and Two Park Crest designs

are   substantially      similar.          For      the     following     reasons,    we

affirm.




      1 The Appendix to this opinion includes a comparison
prepared by HPA’s founder and CEO of the two designs’ floorplans
and exteriors. See infra Appendix; see also J.A. 5220, 5222.



                                           3
                                               I.

                                               A.

        HPA is an architecture firm based in Dallas, Texas, that

designs multi-family residential buildings.                           In 2000 and 2001,

HPA designed a high-rise residential tower known as Grant Park.

In     2003,      HPA     registered          the        Grant   Park    design       as    an

architectural work with the United States Copyright Office and

received a certificate of copyright registration.                                 The Grant

Park    building        was    constructed          in    Minneapolis,        Minnesota,    in

2004.

        Grant Park is a 27-story condominium building with 11 units

per floor.        It has 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 into one and six

into the other.               The lobbies also each provide access to a

stairwell and to either a trash chute or a mechanical/electrical

room.        Residents        can    travel    between       the     lobbies     through    an

unfinished        service       corridor,      which        allows    all     residents     to

access both utility rooms and both stairwells.                              This dual-core

layout       is   desirable         because    it        eliminates     the    need   for    a

finished central hallway and fosters a sense of community among

the units sharing a lobby.

        In   2008,      Penrose      began    developing         a   high-rise    apartment

building       called     Two       Park   Crest     for     construction       in    McLean,


                                               4
Virginia.           In 2010, it solicited design proposals from three

architecture firms, including HPA and Lessard, a firm based in

Vienna, Virginia.           HPA submitted illustrations of its Grant Park

design in September 2010 and met with Penrose in October 2010.

        On    November      3,      2010,   Penrose      informed    Lessard       that   it

wanted the Two Park Crest design to feature dual elevator cores

connected by a service corridor, and emailed Lessard the Grant

Park floorplan to illustrate the concept.                         Later that month, on

November 15, Lessard emailed Penrose a preliminary sketch of a

design       with    two    elevator        cores;      Penrose   responded       that    the

design       was    “looking     good.”        J.A.      9033.     Lessard    ultimately

submitted a design for a 19-story building with 17 apartments

per floor.           The 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, 8 would open directly into one passenger

elevator lobby and 9 would open directly into the other.

        On November 17, 2010, Penrose told HPA that it had hired

Lessard       to     design      the    Two    Park      Crest     project.         Penrose

subsequently         sold     the    project    to      Northwestern.        In    November

2011,    Northwestern          hired    Clark      to    construct   Two     Park    Crest.

Clark began constructing the building in January 2012.




                                               5
                                        B.

     In April 2013, HPA filed this action against Appellees                          2


under 17 U.S.C. § 101 et seq., alleging one count of copyright

infringement against each Appellee.                   Following discovery, the

parties cross-moved for summary judgment.                    Appellees argued that

they were not liable to HPA because, among other reasons, they

did not copy the Grant Park design and the two designs are not

substantially similar.            Appellees supported their motions with

expert     reports    filed    by    three     architects--Stephen           Gresham,

Robert Greenstreet, and Douglas Carter--who concluded in their

reports that the two designs are not substantially similar.

     HPA    argued     in   its     motion     and    responses        to   Appellees’

motions     that     Lessard   copied        the     Grant    Park     design   after

receiving that design from Penrose.                  It claimed that the speed

with which Lessard created the Two Park Crest design is direct

evidence of copying, and that the similarities between the two

designs is circumstantial evidence of copying.                         HPA supported

its claim that the two designs are substantially similar with a

declaration from architect and HPA expert Daniel Figert, who

identified    nine     characteristics         shared    by     both     designs--for

example, both designs are for multi-family buildings that are


     2 HPA also brought a claim against Penrose Partners, Park
Crest SPE Phase I, LLC, and Penrose/Donohoe Tysons, LLC, none of
which is a party to this appeal.



                                         6
approximately     twenty     stories     tall,    that    have     two   elevator

lobbies connected by a service corridor, and that provide direct

access to units from the elevator lobbies. 3              HPA argued that the

presence   and    arrangement   of     these    nine    features   in    Two   Park

Crest infringed its copyright in the Grant Park design.

     HPA   also    moved   to   strike      Gresham’s,     Greenstreet’s,      and

Carter’s expert reports on the ground that those reports were

inadmissible      hearsay.        In        response,     Appellees      provided

declarations from the experts verifying the contents of their

reports and stating that they would testify at trial to the

substance thereof.      The district court then denied HPA’s motions

to strike, reasoning that the declarations, although belated,

cured HPA’s objection.

     On September 2, 2014, the district court granted Appellees’

motions for summary judgment.          The court determined that summary

judgment was appropriate because, among other reasons, (1) there

was no direct evidence of copying, and (2) no reasonable jury

     3 Figert also stated that both buildings have a “barbell”-
shaped footprint, have “similar top story and fenestration
[(i.e., window)] elements” that are constructed of “the same
materials,” and have a roof with a “cantilevered overhang” (i.e,
a roof extending beyond the exterior wall that is supported by a
beam anchored only inside the exterior wall).       J.A. 5559–60
(Figert Declaration).     And, with respect to the typical
floorplans in each design, Figert stated that each building has
“mechanical / electrical rooms located at one end of the fire
corridor and the trash chutes located at the opposite end,” and
that the corner units in each design have “diagonal access
corridors.” Id. at 5559.



                                        7
could find that the Grant Park and Two Park Crest designs are

extrinsically (i.e., objectively) similar.

      The court held that the two designs are not extrinsically

similar   for     two   independently       sufficient          reasons.         First,

neither   the    nine   features   that         Figert    identified       nor    their

arrangement in Grant Park is eligible for copyright protection.

And   second,      those     features       are       presented      and    arranged

differently in the Two Park Crest design.                      With respect to the

arrangement of the nine features in the two designs, the court

noted that Appellees’ experts had provided detailed explanations

as to how the two designs differ with respect to their size,

footprints, floorplans, and exterior appearances.                     HPA’s expert,

in contrast, “offer[ed] no evidence as to what makes the two

arrangements      extrinsically    similar.”              Humphreys    &    Partners

Architects, L.P. v. Lessard Design, Inc., 43 F. Supp. 3d 644,

677 (E.D. Va. 2014).         The court concluded that Appellees were

“entitled to summary judgment . . . based on the results of the

extrinsic similarity analysis.”         Id.          HPA timely appealed.



                                    II.

      Before turning to HPA’s arguments on appeal, we set forth

the law governing architectural copyright infringement claims.

“Copyright      protection   subsists       .    .    .   in    original    works    of

authorship fixed in any tangible medium of expression . . . from



                                        8
which     they        can     be       perceived,                 reproduced,          or         otherwise

communicated . . . .”                  17 U.S.C. § 102(a).                       In 1990, Congress

expanded       the        scope       of     “works          of     authorship”             to      include

“architectural            works,”          id.        §     102(a)(8),           by     enacting        the

Architectural Works Copyright Protection Act (the “AWCPA”), Pub.

L. No. 101–650, §§ 701–706, 104 Stat. 5089 (1990) (codified in

various      sections        of       17     U.S.C.).                The     AWCPA          defines        an

architectural work as “the design of a building as embodied in

any tangible medium of expression.”                               17 U.S.C. § 101.                “The work

includes       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.             The     AWCPA’s

legislative          history          explains              that      the        arrangement            and

composition          of    spaces          and    elements           is     protectable             because

“creativity         in     architecture               frequently         takes        the    form     of   a

selection,          coordination,                or        arrangement           of     unprotectible

elements into an original, protectible whole.”                                         H.R. Rep. No.

101–735,       at    18    (1990),         reprinted          in     1990    U.S.C.C.A.N.             6935,

6949.

       “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 Costumes, Inc., 243 F.3d 789, 801

(4th    Cir.    2001).            “Copying        can        be    proven     through         direct       or


                                                       9
circumstantial evidence.”              Bldg. Graphics, Inc. v. Lennar Corp.,

708 F.3d 573, 578 (4th Cir. 2013).

       “Direct evidence of copying . . . includes evidence such as

party    admissions,         witness      accounts        of    the    physical       act    of

copying, and common errors in the works of plaintiffs and the

defendants.”         Rottlund Co. v. Pinnacle Corp., 452 F.3d 726, 732

(8th Cir. 2006).            In M. Kramer Manufacturing Co. v. Andrews, 783

F.2d 421 (4th Cir. 1986), for example, we found direct evidence

of copying where “[t]he computer programs in the record [were]

virtually          identical”       and      the     defendants’         program,           like

plaintiff’s, included “a hidden legend that would appear only

when    the     [program’s]         buttons        were   pressed       in    an   abnormal

sequence,”      id.    at    446.      Similarly,         our   sister       circuits      have

found direct evidence of copying where a defendant “gave . . .

explicit instruction that [a] work be copied,” Rogers v. Koons,

960    F.2d   301,     307    (2d     Cir.    1992),      and    where       the   defendant

admitted      to    copying     the    plaintiff’s        work,       see,    e.g.,   Enter.

Mgmt. Ltd. v. Warrick, 717 F.3d 1112, 1120 (10th Cir. 2013);

Soc’y of Holy Transfiguration Monastery, Inc. v. Gregory, 689

F.3d 29, 49 (1st Cir. 2012).

       “Where       direct     evidence       of     copying      is     lacking,       [the]

plaintiff may prove copying by circumstantial evidence in the

form of proof that the alleged infringer had access to the work

and    that   the     supposed      copy     is     substantially        similar      to    the


                                              10
author’s original work.”                 Bouchat v. Baltimore Ravens, Inc., 241

F.3d       350,     353-54    (4th        Cir.     2001).        To      show     substantial

similarity, the plaintiff must establish that the two works are

both       “extrinsically”         and    “intrinsically”         similar.         Universal

Furniture Int’l, Inc. v. Collezione Europa USA, Inc., 618 F.3d

417,       435    (4th     Cir.    2010).          “The      extrinsic     inquiry      is   an

objective          one”     that     “looks           to     ‘external     criteria’”         of

substantial          similarity          between       the     alleged     copy     and      the

protected         elements    of    the     copyrighted         work.      Id.     at   435–36

(quoting Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435,

1442 (9th Cir. 1994)).                   “The intrinsic inquiry, in contrast,

implicates         the    perspective       of     the     [works’]     intended     observer

. . . [and] looks to the ‘total concept and feel of the works

. . . .’”         Id. at 436 (quoting Lyons P’ship, 243 F.3d at 801).

       While we have applied this two-part substantial similarity

test in a variety of copyright contexts, we have not expressly

held in a published opinion that this test governs claims of

architectural copyright infringement.                          The parties both argue,

and the district court determined, that the extrinsic/intrinsic

test governs.             We agree, and therefore hold that “the two-part

test for determining substantial similarity . . . is applicable

to     a    copyright        infringement          claim       involving        architectural

works.”          Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg.,

LLC, 496 F. App’x 314, 320 (4th Cir. 2012); see also Bldg.


                                                 11
Graphics, 708 F.3d at 580 n.3 (stating in dicta that the court

would    apply     the     extrinsic/intrinsic             test    to        a    claim    of

architectural copyright infringement).



                                           III.

       We turn now to HPA’s arguments on appeal.                    HPA claims that

the    district    court    erred     in    three     respects:         by       considering

Appellees’ expert reports when resolving the motions for summary

judgment; by failing to credit HPA’s direct and circumstantial

evidence of copying; and by making various errors of copyright

law.    We consider each argument in turn.

                                            A.

       We begin with HPA’s argument that the district court erred

by considering Appellees’ expert reports, a claim we review for

abuse of discretion.         See Nader v. Blair, 549 F.3d 953, 963 (4th

Cir.    2008)    (reviewing       admissibility       of    affidavits           at   summary

judgment stage for abuse of discretion); cf. EEOC v. Freeman,

778 F.3d 463, 466 (4th Cir. 2015) (“We review a district court’s

decision to admit or to exclude expert evidence for an abuse of

discretion.”).

       HPA      maintains     that,         because        these        reports           were

“inadmissible hearsay,” they were “not evidence upon which the

court could grant summary judgment.”                       Appellant’s Br. at 25.

Appellees       respond    that    the     district    court      acted          within    its



                                            12
discretion     when   considering         the     expert    reports       because    those

“reports were both sworn to in declarations filed in response to

HPA’s     objection     and    the       content    of     the     reports      would     be

admissible through the expert’s testimony at trial.”                            Appellees’

Br. at 28.      We agree with Appellees that the district court did

not err by considering the reports.

      “The    court   and     the    parties       have    great    flexibility         with

regard to the evidence that may be used on a [summary judgment]

proceeding.”     10A Charles Alan Wright, Arthur R. Miller & Mary

Kay Kane, Federal Practice and Procedure § 2721 (3d ed. 1998).

The   court    may    consider       materials       that    would        themselves     be

admissible at trial, and the content or substance of otherwise

inadmissible     materials       where      the     “the    party     submitting        the

evidence show[s] that it will be possible to put the information

. . . into an admissible form.”                    11 James Wm. Moore et al.,

Moore’s    Federal    Practice       §    56.91[2]    (3d    ed.     2015).        If   the

nonmovant     objects    to    the       court’s    consideration          of    “material

cited to support or dispute a fact,” Fed. R. Civ. P. 56(c)(2),

the   movant    has     the   burden       “to     show    that     the    material      is

admissible as presented or to explain the admissible form that

is anticipated,” Fed. R. Civ. P. 56 advisory committee’s note.

      Here,    the    admissibility          of    the     reports     themselves        is

immaterial     because    Appellees        “explain[ed]       the    admissible         form

that is anticipated.”               Id.     Appellees submitted declarations


                                            13
made “under penalty of perjury” from the experts attesting that

they       “would     testify         to     the     matters       set     forth     in     [their

respective]         report[s].”               J.A.        6367     (Greenstreet),         6392–93

(Carter);         accord       J.A.        6426     (Gresham).             And    “[s]ubsequent

verification         or    reaffirmation            of    an     unsworn    expert’s      report,

either by affidavit or deposition, allows the court to consider

the unsworn expert’s report on a motion for summary judgment.”

DG & G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576

F.3d       820,     826     (8th      Cir.        2009)    (quoting        Maytag     Corp.     v.

Electrolux Home Prods., Inc., 448 F. Supp. 2d 1034, 1064 (N.D.

Iowa 2006)).          HPA does not claim that the experts’ declarations

are    deficient          or        that     the        experts’        testimony     would     be

inadmissible         at     trial.          We     therefore       find    no     error   in   the

district court’s consideration of the experts’ reports. 4

                                                   B.

       We    turn     now      to    HPA’s        argument       that    the     district    court

failed to credit HPA’s direct and circumstantial evidence of

copying when granting summary judgment to Appellees.                                        As the

       4
       Our holding today does not establish any requirement for
the consideration of expert reports at summary judgment.      We
hold only that the district court acted within its discretion by
considering Appellees’ reports; we express no opinion as to
whether the experts’ declarations were necessary.    Cf. Deakins
v. Pack, 957 F. Supp. 2d 703, 752 (S.D.W. Va. 2013) (“The 2010
amendments   to  Rule   56(c)(2)   ‘eliminated  the  unequivocal
requirement that documents submitted in support of a summary
judgement motion must be authenticated.’” (quoting Akers v. Beal
Bank, 845 F. Supp. 2d 238, 243 (D.D.C. 2012))).



                                                   14
district court noted, summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).           “We review de novo a district court’s

award of summary judgment, viewing the facts in the light most

favorable    to    the        nonmoving         party.”       Boyer-Liberto      v.

Fontainebleau Corp., No. 13-1473, 2015 WL 2116849, at *8 (4th

Cir. May 7, 2015) (en banc).

                                          1.

     HPA first argues that the district court “ignored HPA’s

evidence” when it “stated that there was no direct evidence of

copying.”     Appellant’s        Br.      at    52.    HPA   submits   that    “the

development of Lessard’s sketches establishes direct evidence of

copying,” id. at 53, particularly when viewed in concert with

Figert’s deposition testimony.                 Figert stated in relevant part:

“It appears that rather than going through the normal iterative

design process, that Lessard had a preconceived solution to the

design.”    Id. (quoting J.A. 5195).

     This   evidence     is    not    direct      evidence   of   copying.     That

Lessard may have created its design with more speed and less

revision than     is   typical       in   the    industry    is   consistent   with

HPA’s theory that Lessard copied its design, but it does not




                                          15
itself establish copying.   5    And Figert did not claim to have

personal knowledge that Lessard copied the Grant Park design.

In fact, Figert made clear in his deposition that he was not

prepared to state that Lessard copied the design.       Asked whether

it was his “opinion that Lessard copied the Grant Park design,”

Figert responded, “I was not asked to give an opinion about

whether or not there was a copy made. . . . I’ll pass on giving

a conclusion as to whether or not I think they copied it or

not.”    J.A. 1532.    Because HPA presented no direct evidence of

copying, the district court did not err by stating that “direct

evidence of copying does not exist” here.        Humphreys & Partners

Architects, L.P. v. Lessard Design, Inc., 43 F. Supp. 3d 644,

659 (E.D. Va. 2014).

                                  2.

     HPA next argues that the district court resolved disputed

issues of fact in Appellees’ favor and failed to credit HPA’s

evidence    when   considering   whether   the    two   designs   are




     5  HPA   states   that  the   district   court  in  Brocade
Communications Systems, Inc. v. A10 Networks, Inc., 873 F. Supp.
2d 1192 (N.D. Cal. 2012), considered “almost identical facts” to
be “direct evidence of copying,” Appellant’s Br. at 53. But the
Brocade court found “the unusually fast pace of development of
[computer] code” to be “circumstantial evidence” supporting an
expert’s conclusion about copying.    Brocade Commc’ns Sys., 873
F. Supp. 2d at 1219–20 (emphasis added).



                                  16
extrinsically          similar.       6         Specifically,         HPA     claims    that      the

district court failed to credit its “evidence showing that the

overall        form        and    composition           of    the     works     was     similar.”

Appellant’s Br. at 27.                   This argument presents a closer question

then        does    HPA’s        direct-evidence         claim.         We     address       it    by

outlining the parties’ respective burdens at summary judgment,

and     then        considering        whether         Appellees       and     HPA     met   those

burdens.

        The        party    moving        for    summary          judgment     “discharges         its

burden       by     showing       that     there    is       an    absence     of    evidence      to

support the nonmoving party’s case.”                                Kitchen v. Upshaw, 286

F.3d 179, 182 (4th Cir. 2002).                          If the movant discharges this

burden, the nonmoving party must present “specific facts showing

that there is a genuine issue for trial.”                                    Blair v. Defender

Servs., Inc., 386 F.3d 623, 625 (4th Cir. 2004) (quoting White

v. Rockingham Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir.

1987)).            To create a genuine issue for trial, “the nonmoving

party        must    rely        on   more      than     conclusory          allegations,         mere

speculation, the building of one inference upon another, or the

mere existence of a scintilla of evidence.”                             Dash v. Mayweather,

731 F.3d 303, 311 (4th Cir. 2013).                            In other words, a factual


        6
       We assume for the purposes of this argument that HPA has
met its burden of showing that it owns a valid copyright in the
Grant Park design, and that Appellees had access to that design.



                                                   17
dispute    is    genuine          only   where     “the    non-movant’s         version        is

supported by sufficient evidence to permit a reasonable jury to

find” in its favor.               Stone v. Univ. of Md. Med. Sys. Corp., 855

F.2d 167, 175 (4th Cir. 1988).

     Here, Appellees carried their initial burden of “‘showing’-

-that is, pointing out to the district court--that there is an

absence of evidence to support [HPA’s] case.”                           Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986).                         They explained in their

motions that no evidence suggests that Two Park Crest and Grant

Park have a substantially similar overall form, or that the two

designs arrange spaces and elements in a substantially similar

manner.     And Appellees submitted expert reports explaining why

the two designs are dissimilar.                    Cf. Universal Furniture Int’l,

Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 435 (4th Cir.

2010)    (“The       extrinsic      inquiry      is   an       objective     one    on    which

expert    testimony         may     be   relevant.”).            For    example,        Gresham

explained in his report that, while both designs offer direct

access to       units       from    elevator     lobbies,        the   “relation         of    the

elevators       to    the    apartment      doors”        is    different      in   the        two

designs.        J.A.    2326.        “At   Grant      Park,”      Gresham      wrote,         “the

elevators open into a discernible vestibule,” such that a person

standing in the lobby “can view six of the individual resident

doors (out of eleven, total, per floor[]).”                            Id.    “At Two Park

Crest,     however,         the    elevators       open        directly      into   a     cross


                                              18
corridor,” and “[u]nit entries are tucked away in the legs of an

H-shaped   resident   corridor[.]”        Id.      In   the   Two   Park   Crest

design, “[o]nly two of seventeen resident doors are visible form

the elevator lobby.” 7   Id.

     The burden then shifted to HPA to document a substantial

similarity between the protected elements of its design--i.e.,

Grant Park’s overall form and arrangement of the nine individual

features--and the Two Park Crest design.                HPA claims on appeal

that it carried this burden with the following evidence.

     First, HPA relies on two declarations submitted by Mark E.

Humphreys, HPA’s founder and CEO.          The only statements in these

declarations relevant to substantial similarity are Humphreys’s

assertions that “[t]he 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.”               J.A. 5216.       These

statements   are   insufficient   to      create    a    genuine    dispute   of

material fact because they are conclusory.               See Dash, 731 F.3d

at 311.    Humphreys identifies no specific, objective similarity

     7 Appellees also presented evidence that, as compared to
Grant Park, Two Park Crest is eight stories shorter; has six
more units per floor; has one more elevator core, for service;
has a less rectangular footprint; has mechanical/electrical
rooms and trash chutes on the back (rather than front) side of
the building; has exit stairwells located opposite the elevator
lobbies and encased in separate enclosures; has an exterior with
wider and more widely spaced vertical indentations; has a façade
that is majority glass; and has fewer window elements and
walkable balconies.



                                     19
between   the    two   designs         to     support   his        conclusion      that   the

buildings’ floorplans and appearances are similar.

       Second, HPA identifies three declarations--from Robert Lux

and David A. Hunt, both of whom worked with HPA on the Grant

Park   project,      and    Walter      Hughes,     HPA’s         Director    of   Design--

describing the creation, originality, and benefits of the Grant

Park design.      These declarations do not create a genuine dispute

for    trial    because         none     contains       an        assertion     about     the

similarity between the Grant Park and Two Park Crest designs.

       Finally, HPA relies on Figert’s declaration and deposition

testimony.       Figert stated in his declaration that “[t]he two

designs   have    an   extrinsic         similarity          in    that   the    ideas    and

expression of the ideas used in the projects have substantial

similarities[,] . . . includ[ing] such things as building floor

plan layout, exit circulation, building size, and composition of

the major elements that make up the exterior expression of the

designs.”      J.A. 5558.         He also listed nine features shared by

both designs--for example, the stairwells in both designs are

located    adjacent        to   elevator       lobbies--and          stated     that    these

characteristics are “examples of the arrangement and composition

of    spaces   and    elements         that    represent          substantially     similar

features of Humphreys’ Grant Park design.”                             J.A. 5560.         And

Figert stated in his deposition that the “the overall expression




                                              20
of the idea of those [nine] elements is very similar in the two

projects.”       J.A. 5197.

      Figert’s         declaration       and     deposition          testimony       are

insufficient to show that the designs are extrinsically similar.

Like Humphreys, Figert offered no specific similarity between

the designs’ overall form or arrangement of individual elements.

He    identified       nine     shared   features       and    stated    that    these

characteristics show that the two designs arrange and compose

both spaces and elements in a substantially similar manner.                          But

the mere presence of these nine features in both buildings does

not     create    an    issue     for    trial   because,       as    HPA’s     counsel

confirmed at oral argument, HPA does not claim “any protectable

interest in any individual component” of the Grant Park design. 8

Oral Arg. 7:56–8:16; see also Ale House Mgmt., Inc. v. Raleigh

Ale House, Inc., 205 F.3d 137, 143 (4th Cir. 2000) (“To prove

copyright    infringement,         the   plaintiff      must   establish      that    it

owned     copyrighted         material    and    that    the    infringer        copied

protected elements of it.”).               And Figert did not explain how

specifically the two designs are similar in their floorplans,

exits, sizes, or arrangement of individual elements.                          Figert’s

      8We do not imply that the outcome of this appeal would be
different if HPA had pressed this claim.     To the contrary, we
agree with the district court that the nine features, when
viewed in isolation, are not extrinsically similar in the two
designs.   See Humphreys & Partners Architects, L.P. v. Lessard
Design, Inc., 43 F. Supp. 3d 644, 669-75 (E.D. Va. 2014).



                                          21
conclusory assertions are, as a matter of law, insufficient to

show that any aspect of Two Park Crest is substantially similar

to a protected element of the Grant Park design.                   See Dash, 731

F.3d at 311.

      At bottom, HPA failed to carry its burden of identifying a

specific similarity between the Two Park Crest design and the

protected   elements    of     its    Grant    Park    design.     The   evidence,

viewed in the light most favorable to HPA, shows that the Two

Park Crest and Grant Park designs incorporate nine of the same

concepts.      But it does not establish that the two designs have a

similar overall form, or that the designs arrange or compose

elements and spaces in a similar manner.                    Accordingly, because

HPA failed to present nonconclusory evidence that the designs

are   extrinsically     similar,       we     reject    HPA’s    claim   that    the

district    court     failed     to     credit        its   extrinsic-similarity

evidence.

                                        C.

      We conclude by addressing HPA’s claim that the district

court misapplied relevant copyright law in three respects.

      First,    HPA   argues    that     the    district      court   erroneously

declined to consider whether the Two Park Crest design arranges

unprotected elements in a substantially similar manner to the

arrangement of those elements in the Grant Park design.                         This

argument mischaracterizes the district court’s reasoning.                       The


                                        22
district court began its analysis by considering whether any of

the nine features Figert identified were themselves protectable.

But the court did not stop there; it also considered whether,

“notwithstanding the fact that the nine features [HPA] relies on

do not warrant protection under the AWCPA, . . . the arrangement

of those features is substantially similar in the Grant Park and

Two Park Crest designs.”            Humphreys & Partners Architects, L.P.

v. Lessard Design, Inc., 43 F. Supp. 3d 644, 676 (E.D. Va.

2014).      And,   contrary    to    HPA’s    assertion    here,   the   district

court did not exclude any feature from this analysis.                     Rather,

the court concluded that no reasonable jury could find the two

arrangements similar because, among other reasons, “the overall

footprints of the two designs are highly different,” and the two

designs “have a different shape, size, and exterior appearance.”

Id. at 677.

     Second, HPA claims that the district court erred in various

respects by finding that the allegedly copied aspects of the

Grant Park design are not eligible for copyright protection.                   We

need not reach this argument because the district court also

held that, even if those aspects were protected, Appellees are

not liable to HPA because they did not copy them.                  This holding,

which we affirm today, is sufficient to support the judgment.

     Finally,      HPA    argues    that     the   district    court     conflated

intrinsic    (i.e.,      subjective)    and    extrinsic      (i.e.,   objective)


                                        23
similarity when considering the two designs as a whole.                               Cf.

Universal Furniture Int’l, Inc. v. Collezione Europa USA, Inc.,

618 F.3d 417, 435-36 (4th Cir. 2010) (distinguishing between the

intrinsic- and extrinsic-similarity analyses).                      HPA claims that

the     district   court        engaged    in     a    subjective     analysis     when

discussing whether the overall arrangement of elements in the

two designs is extrinsically similar.                      But the district court

correctly stated that “examining an ordinary person’s subjective

impressions of similarities between two works . . . is typically

the     province   of     the     jury,”    and       it   declined   to    make      any

subjective    finding      about    the    two    designs.       Humphreys,      43    F.

Supp.    3d   at   679.         HPA’s     final       argument   fails     because     it

identifies no subjective finding by the district court in its

extrinsic-similarity analysis, and our review reveals no such

finding.



                                           IV.

      For the foregoing reasons, the judgment of the district

court is

                                                                             AFFIRMED.




                                           24
                            APPENDIX


Typical Grant Park Floorplan:




Typical Two Park Crest Floorplan:




                                25
Grant Park Exterior:




Two Park Crest Exterior:




                           26
