                                                                                   FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         January 4, 2016

                                                                           Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                             Clerk of Court
                         _________________________________

SAVANT HOMES, INC.,

      Plaintiff - Appellant,

v.                                                           No. 15-1115

DOUGLAS W. COLLINS; DOUGLAS
CONSULTING, LLC, d/b/a Collins
Custom Builders; STEWART KING, d/b/a
Kodiak Custom Design; TAMMIE
WAGNER; RON WAGNER,

      Defendants - Appellees.
                      _________________________________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                    (D.C. No. 1:13-CV-02049-WJM-MEH)
                    _________________________________

Alan F. Blakley (Tyler R. Rauert, with him on the briefs), Blakley Justice, LLC,
Longmont, Colorado, appearing for Appellant.

Jacob W. Paul, Coan Payton & Payne, LLC, Greeley, Colorado, appearing for Appellees
Douglas W. Collins and Douglas Consulting, LLC.

Thomas P. Howard (William C. Groh, III, with him on the brief), Thomas P. Howard,
LLC, Louisville, Colorado, appearing for Appellees Ron and Tammie Wagner.

Stewart King, pro se, Windsor, Colorado, filed a brief.
                       _________________________________

Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.
                  _________________________________

MATHESON, Circuit Judge.
                        _________________________________

       Plaintiff Savant Home, Inc. (“Savant”) is a custom home designer and builder. It

holds a registered copyright to a floor plan of a three-bedroom ranch house (“Anders

Plan”). Savant built a model house embodying that plan in Windsor, Colorado (“Savant

house”). In June 2009, Ron and Tammie Wagner toured the Savant house and hired

builder Douglas Collins and his firm, Douglas Consulting, LLC (jointly, “Collins”) to

build a house. Collins, in turn, contracted with Stewart King to design the house. After

Collins and Mr. King completed the Wagners’ house, Ms. Wagner hired them to build a

second house.

       Savant sued all of the foregoing parties for copyright infringement, contributory

copyright infringement, civil conspiracy, trade dress infringement, and other claims. It

alleged that Defendants copied the Anders Plan by building the two houses (“accused

houses”). The district court granted Defendants summary judgment, and Savant appeals.

       Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                  I. BACKGROUND

                                  A. Factual History

       The Anders Plan, embodied by the Savant house, is a ranch house with two

bedrooms on one side and a master suite on the other, separated by a combined family

room, dining room, and kitchen. Savant has built and sold six Anders Plan houses.

       On June 6, 2009, the Wagners hired Collins to build a house at 300 Madera Way,

Windsor, CO, in anticipation of their move from Arizona to Colorado. That same month,

the Wagners traveled to Colorado and toured the Savant house, where they obtained a


                                           -2-
brochure of the Anders Plan. The Wagners returned to the Savant house that August with

Collins and Mr. King, the designer Collins had hired.

       Collins completed construction of the 300 Madera Way house in 2010. The

Wagners subsequently separated, after which Ms. Wagner hired Collins to build another

house at 8466 Blackwood Drive, Windsor, CO. The houses at 300 Madera Way and

8466 Blackwood Drive are both ranch houses with two bedrooms on one side and a

master suite on the other, separated by a combined family room, dining room, and

kitchen. We discuss additional facts as necessary below.

                                 B. Procedural History

       Savant sued the Wagners, Collins, and Mr. King, alleging copyright infringement,

contributory copyright infringement, civil conspiracy, trade dress infringement,

intentional interference with business advantage, civil theft, and deceptive trade practices.

       The Wagners and Collins moved for summary judgment, offering an expert report

by architect Rob Fisher.1 Mr. Fisher stated that numerous aspects of the Anders Plan

were standard among three bedroom ranch houses, addressing functional concerns or

market demand. He provided four example floor plans from a third-party online plan

service company, monsterhouseplans, which included similar layouts.

       In response, Savant offered an expert report by architect Justin Larson. Mr.

Larson opined that the accused houses and the Anders Plan exhibited “shocking


       1
        Mr. Fisher submitted a report, an amended report, and a rebuttal report. This
opinion refers to his amended report.



                                            -3-
similarities,” indicating that Defendants “very likely” intended to “replicate the Anders

Plan.” Aplt. App. at 404-05. He did not identify specific or overall aspects of the Anders

Plan that were a product of architectural creativity, nor did he respond to Mr. Fisher’s

analysis indicating that the Anders Plan consisted of standard content. On the contrary,

Mr. Larson acknowledged that “[m]any homes in this neighborhood, and many others,

likely share very similar programs.” Id. at 404.

       The district court granted Defendants summary judgment on every claim.2 Savant

appeals the grant of summary judgment only as to the claims of copyright infringement,

contributory copyright infringement, civil conspiracy, and trade dress infringement.

       On the copyright infringement claim, the district court decided Savant had failed

to carry its summary judgment burden. More specifically, the court concluded Savant

had not shown that the Anders Plan included any protectable content. The court ruled

this failure precluded a finding of substantial similarity—an essential element of

copyright infringement.3 The court also concluded the contributory copyright

infringement and civil conspiracy claims failed because they were dependent on the

copyright infringement claim. Finally, the court granted summary judgment on the trade


       2
        Mr. King, acting pro se, did not move for summary judgment. The district court
nevertheless granted him summary judgment sua sponte, finding that the grounds on
which Collins and the Wagners were entitled to summary judgment applied equally to
him.
       3
        The court alternatively concluded that, even if the one element of the Anders
Plan that Mr. Fisher identified as potentially protectable were protectable, no jury could
find substantial similarity based on this element.



                                            -4-
dress infringement claim because Savant offered insufficient evidence of (1) inherent

distinctiveness or secondary meaning and (2) a likelihood of confusion. We affirm.

                                      II. DISCUSSION

                A. Standard of Review and Summary Judgment Standard

       We review a grant of summary judgment de novo. Osborne v. Baxter Healthcare

Corp., 798 F.3d 1260, 1266 (10th Cir. 2015). “The court shall grant summary judgment

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). An issue is

genuine “if there is sufficient evidence on each side so that a rational trier of fact could

resolve the issue either way.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013)

(quotations omitted); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An

issue of fact is material “if under the substantive law it is essential to the proper

disposition of the claim.” Becker, 709 F.3d at 1022 (quotations omitted); see Anderson,

477 U.S. at 248.

        “The movant bears the initial burden of making a prima facie demonstration of

the absence of a genuine issue of material fact and entitlement to judgment as a matter of

law.” Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A movant who does not bear the

burden of persuasion at trial may satisfy this burden “by pointing out to the court a lack

of evidence on an essential element of the nonmovant’s claim.” Id. (citing Celotex, 477

U.S. at 325).




                                             -5-
       “If the movant meets this initial burden, the burden then shifts to the nonmovant to

set forth specific facts from which a rational trier of fact could find for the nonmovant.”

Id. (quotations omitted) (citing, among others, Celotex, 477 U.S. at 324). To satisfy this

burden, the nonmovant must identify facts “by reference to affidavits, deposition

transcripts, or specific exhibits incorporated therein.” Id. (citation omitted). These facts

“must establish, at a minimum, an inference of the presence of each element essential to

the case.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001);

see also Celotex, 477 U.S. at 323 (explaining a movant is entitled to summary judgment

when “the nonmoving party has failed to make a sufficient showing on an essential

element of her case with respect to which she has the burden of proof”).

       Finally, “[a]lthough our review of the record is de novo, we conduct that review

from the perspective of the district court at the time it made its ruling, ordinarily limiting

our review to the materials adequately brought to the attention of the district court by the

parties.” Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223 (10th Cir. 2008) (quotations

omitted). Like the district court, we have “discretion to go beyond the referenced

portions” of the evidence but are “not required to do so.” Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 672 (10th Cir. 1998).

                            B. Copyright Infringement Claim

       We affirm the grant of summary judgment on Savant’s copyright infringement

claim. First, as the district court concluded, Savant failed to show the Anders Plan

included any protectable elements or arrangement of elements. Second, Savant’s

contentions that the district court erred lack merit.


                                             -6-
1. Legal Background

       A plaintiff must prove two elements to establish copyright infringement:

“(1) ownership of a valid copyright, and (2) copying of constituent elements of the work

that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991);

see Blehm v. Jacobs, 702 F.3d 1193, 1199 (10th Cir. 2012). The parties do not dispute

that Savant owns a valid copyright in the Anders Plan.

       The copying element consists of two components. First, a plaintiff must show a

defendant copied the plaintiff’s work “as a factual matter.” Blehm, 702 F.3d at 1199

(quotations omitted). Second, a plaintiff must demonstrate “substantial similarity

between the allegedly infringing work and the elements of the copyrighted work that are

legally protected.” Id. (quotations omitted). This second component “determines

whether a defendant’s factual copying constitutes infringement.” Id. Defendants do not

dispute that Savant demonstrated factual copying. Accordingly, only substantial

similarity is at issue.

       To decide the substantial similarity issue, a court must determine (1) which

elements of the copyrighted work are protectable, and (2) whether these elements are

substantially similar to the accused work. Blehm, 702 F.3d at 1200. A court may address

either step first. Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 833 (10th

Cir. 1993).

       a. Protectable Elements

       We begin with the general requirements of protectability and then address

protectable elements of architectural works.


                                            -7-
              i. Protectability

       The substantial similarity analysis requires us to “distill the protectable elements

of the copyrighted work—i.e., determine what aspects constitute protectable expression.”

Blehm, 702 F.3d at 1200.

       Section 102(a) of the Copyright Act protects “original works of authorship.” 17

U.S.C. § 102(a). Originality exists where a “work was independently created by the

author (as opposed to copied from other works), and . . . it possesses at least some

minimal degree of creativity.” Feist, 499 U.S. at 345. The required level of creativity is

“extremely low; even a slight amount will suffice. The vast majority of works make the

grade quite easily, as they possess some creative spark, no matter how crude, humble or

obvious it might be.” Id. (quotations omitted). This originality requirement separates

protectable from unprotectable elements of a copyrighted work. See id. at 348

(“[C]opyright protection may extend only to those components of a work that are original

to the author.”).

       Section 102(b) provides that in “no case does copyright protection for an original

work of authorship extend to any idea . . . regardless of the form in which it is described,

explained, illustrated, or embodied in such work.” Taking § 102(a) and § 102(b)

together, courts describe the distinction between originality and non-originality as the

difference between expression and an idea. See Harper & Row Publishers, Inc. v. Nation

Enters., 471 U.S. 539, 547 (1985) (“The copyright is limited to those aspects of the

work—termed ‘expression’—that display the stamp of the author’s originality.”); Blehm,

702 F.3d at 1200 (explaining that § 102(b) “enshrines the fundamental tenet that


                                            -8-
copyright protection extends only to the author’s original expression and not to the ideas

embodied in that expression” (quotations omitted)).

       The distinction between expression and ideas can be “difficult to apply in

practice,” Blehm, 702 F.3d at 1201 (quotations omitted), as the “test for infringement of a

copyright is of necessity vague,” id. (quoting Peter Pan Fabrics, Inc. v. Martin Weiner

Corp., 274 F.2d 487, 489 (2d Cir. 1960)). We therefore follow a “case-by-case

approach,” which may “‘inevitably be ad hoc,’” id. (quoting Peter Pan Fabrics, 274 F.2d

at 489), mindful of the “primary objective of copyright,” which is “not to reward the

labor of authors, but ‘[t]o promote the Progress of Science and useful Arts,’” Feist, 499

U.S. at 349 (quoting U.S. Const. art. I, § 8, cl. 8). See Country Kids ‘N City Slicks, Inc. v.

Sheen, 77 F.3d 1280, 1285 (10th Cir. 1996) (“[I]n differentiating between an idea and a

specific form of expression, it is important to remember that copyright law seeks to

achieve a proper balance between competition based on public ideas and incentive to

produce original work.”).

              ii. Architectural Works

       The Copyright Act expressly protects “architectural works,” 17 U.S.C.

§ 102(a)(8), which it defines as follows:

       An “architectural work” is the design of a building as embodied in any
       tangible medium of expression, including a building, architectural plans, or
       drawings. 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. § 101.




                                            -9-
       Thus, individual standard elements of architectural works are not protected, but

original selections or arrangements of such elements may be protectable. See Blehm, 702

F.3d at 1201-02 (“[T]he combination of common architectural elements and use of

specific designs may constitute original expression that is protected.”); Zalewski v.

Cicero Builder Dev., Inc., 754 F.3d 95, 103-04 (2d Cir. 2014) (explaining that the

protectable elements of an architectural work include “original elements—or original

arrangements of elements”); Intervest Const., Inc. v. Canterbury Estate Homes, Inc., 554

F.3d 914, 919 (11th Cir. 2008) (“[W]hile individual standard features and architectural

elements classifiable as ideas or concepts are not themselves copyrightable, an architect’s

original combination or arrangement of such elements may be.”); Sturdza v. United Arab

Emirates, 281 F.3d 1287, 1296 (D.C. Cir. 2002) (“[P]rotectible expression may arise

through the ways in which artists combine even unprotectible elements. For example,

while color is not protectible, the manner in which an artist selects, coordinates, and

arranges color may be.” (quotations and alterations omitted).

       b. Substantial Similarity of Accused Works to Protected Elements of Copyrighted
          Works

       In addition to identifying which elements of a work are protected, a court must

determine “whether the protected elements are substantially similar to the accused work.”

Blehm, 702 F.3d at 1202. Substantial similarity exists when “the accused work is so

similar to the plaintiff’s work that an ordinary reasonable person would conclude that the

defendant unlawfully appropriated the plaintiff’s [protectable] expression by taking

material of substance and value.” Id. (quotations omitted); see also Country Kids, 77



                                           - 10 -
F.3d at 1288 (“The essence of this test is whether the ‘ordinary observer, unless he set out

to detect the disparities, would be disposed to overlook them, and regard their aesthetic

appeal as the same.’” (quoting Peter Pan Fabrics, 274 F.2d at 489)); Gates Rubber, 9

F.3d at 833 (“[T]he court must find that the defendant copied protectable elements of the

plaintiff’s program and that those protectable elements comprise a substantial part of the

plaintiff’s program when it is considered as a whole.”). A court may grant summary

judgment for a defendant only “if the protectable expression in the copyrighted work and

the allegedly infringing work is so dissimilar . . . that no reasonable jury could find for

the plaintiff on the question of substantial similarity.” Blehm, 702 F.3d at 1202-03

(quotations omitted).

2. District Court’s Ruling

       The district court granted Defendants summary judgment on the copyright

infringement claim and presented its three-part analysis in the following order.

       First, it concluded that Savant failed to show that any elements of the Anders Plan

were protectable based on evidence in the record. It reasoned that, although Savant

asserted in its opposition to summary judgment that nine elements of the Anders Plan are

original,4 Savant failed to conduct “any analysis of how these elements were designed, or


       4
           Savant’s statements of facts in its opposition memorandums asserted:

       The original or unique elements of the Anders Plan includes, but is not
       limited to: (1) the open floor plan with the master bedroom on one side of
       the house with 2 bedrooms on the opposite side, (2) the plan’s flex space,
       (3) the inviting entry into the open space, (4) the large stairway to the
       basement with the large entry that allows natural light onto the stairs and
                                                                           Continued . . .

                                            - 11 -
explain how they are original or unique to the Anders Plan.” Savant Homes, Inc. v.

Collins, No. 13-CV-2049-WJM-MEH, 2015 WL 899302, at *4 (D. Colo. Feb. 27, 2015).

The court noted Mr. Larson’s report only opined on similarities between the accused

houses and the Anders Plan and failed to address which elements were protected or why.

It concluded Savant’s briefing and evidence were insufficient to meet its summary

judgment burden.

      Second, the district court noted that, in contrast to Savant’s expert report,

Defendants’ expert report did analyze individual elements of the Anders Plan. The court

said Mr. Fisher’s report indicated every element of the Anders Plan was unprotectable,

with the possible exception of one element that “might be protectable”: the “wrought

iron bars over the 3 center windows at the front of the garage.” Aplt. App. at 257.

      The district court concluded that Savant failed to dispute Mr. Fisher’s report. It

assumed the iron bars element was protectable, but concluded Defendants were still

entitled to summary judgment. It determined that no reasonable jury could find

substantial similarity based on this element because the garage windows on the accused

houses had no iron bars.



      the great room beyond, (5) the large master suite and master bath creating a
      retreat including the fireplace at the foot of the tub and visible from the bed
      on the opposite side of the wall, (6) the oversized walk-in closet, (7) direct
      access to the laundry room from the master suite, (8) proximity of the
      laundry room to the garage to allow garage access from the master suite,
      and (9) side load garage with immediate access to the kitchen.

Aplt. App. at 276, 302-03.



                                           - 12 -
      Third, putting aside Savant’s failure to analyze the protectability of any of the nine

elements, the district court examined each element and concluded Defendants were still

entitled to summary judgment. Applying the abstraction-filtration-comparison (“AFC”)

test—one method for analyzing substantial similarity—the court filtered out the

unprotectable elements and then concluded that no reasonable juror could find substantial

similarity based on the remaining elements.5

3. Analysis

      We affirm the district court’s grant of summary judgment on Savant’s copyright

infringement claim. First, we agree that Savant failed to carry its summary judgment

burden. Second, Savant’s contentions that the district court erred are unpersuasive.

      a. Savant Failed to Carry Its Summary Judgment Burden

      Savant failed to show that the Anders Plan included any protectable element or

arrangement of elements. We arrive at this conclusion by analyzing the parties’

arguments and evidence within the burden-shifting framework for summary judgment.

See Celotex, 477 U.S. at 321-328.

              i. Defendants’ Motions for Summary Judgment

      In their motions for summary judgment, Defendants submitted Mr. Fisher’s report

and argued the Anders Plan included no protectable element, except possibly one. Mr.


      5
        We note that the court’s analysis in step three was in tension with its initial
conclusion that Savant failed to show that any element or arrangement of elements was
protectable. As we explain in our analysis below, we agree with the court’s initial
conclusion.



                                          - 13 -
Fisher’s report stated the Anders Plan consisted almost exclusively of standard elements

arranged in a standard fashion. We highlight a few examples from the report:

   1. The “overall layout, with the master suite located on one side, common
      areas (kitchen, dining, family rooms) in the middle, and kids/guest
      bedrooms on the other side is a standard layout used to provide more
      privacy to the master suite.” Aplt. App. at 252. Such a layout is a response
      to market demand for a “spacious master suite,” id., and is common
      because it allows for “efficient and functional adjacencies to take place,
      such as locating the laundry next to the master,” id. at 254.6

   2. The “open floorplan consisting of the kitchen, dining room, and family
      room” and the “adjacency of kitchen, dining, and family rooms to one
      another” are “a common feature of houses today.” Id. at 253. Architects
      frequently include these features due to market demand for a more
      “capacious feel,” “family togetherness,” and “visibility of children by
      adults in the kitchen,” id. at 253, as well as “less formal[ity]” and the ability
      to “entertain larger numbers of guests,” id. at 254.7

   3. The “incorporation of a master walk-in closet” is standard because “most
      new homes probably would not sell” without them. Id. at 253. “Present-
      day owners have much more clothing than owners from decades ago, and a
      larger variety of clothes for everything from work-out clothes to formal
      wear. To fit all of the clothes storage needs of present-day owners, walk-in
      closets are the norm.” Id. at 254.

   4. The “location of the laundry room next to the master closet and the
      mudroom is also a widespread design feature” based on functional
      considerations and market demand. Id. at 253. Specifically, it “allows the
      laundry center to be next to where the majority of dirty clothes are
      generated (the master closet and the outside in the case of kids and
      gardening adults).” Id. Moreover, “[p]resent-day homeowners want the
      laundry on the same floor as the bedrooms instead of in the basement.” Id.
      at 256.


      6
         The report included floor plans of four example houses from an online plan
service company, all of which include this same element.
      7
          Three out of the four example houses he provided included this same feature.



                                           - 14 -
   5. The “side load garage with immediate access to the kitchen” is “common”
      because it “improve[s] the curb appeal by keeping the garage doors off of
      the front facade.” Id. at 252. It is also common because it “provides the
      benefit of not having to back out into the street when exiting the garage.
      The drive turn is large enough to allow cars to be backed and turned in the
      drive prior to exiting onto the street.” Id. at 254.

       In sum, Mr. Fisher’s report showed the Anders Plan consisted of standard

elements and standard arrangements of elements. Because standard content receives no

copyright protection, see 17 U.S.C. § 101, this showing satisfied Defendants’ “initial

burden of making a prima facie demonstration of the absence of a genuine issue of

material fact” as to the unprotectability of this content in the Anders Plan. Adler, 144

F.3d at 670-71 (citing Celotex, 477 U.S. at 323).

       Mr. Fisher’s report included one exception to his general conclusion that all the

elements and arrangements of elements in the Anders Plan are standard. It briefly stated

the iron bars over the three center windows at the front of the garage were “original[]”

and therefore “might be protectable.” Aplt. App. at 257. As to this one element,

Defendants offered evidence that the garage windows of the accused houses were distinct

and far from substantially similar with the Anders Plan element in that they lacked any

metal bars.

              ii. Savant’s Response

       In its response motions, Savant identified nine elements and asserted they were

“original or unique.” See supra note 4. In support, it cited (1) an interrogatory response

it submitted to the Wagners and (2) the deposition testimony of Alan Strope, the




                                           - 15 -
president of Savant. Both sources recited that various elements were unique, original, or

distinct, but neither provided any facts or analysis supporting these assertions.

       Savant then argued there were “triable disputes over the substantial similarity

between the protectable elements of the Anders Plan and the Accused Houses.” Aplt.

App. at 286, 312. But it failed to argue which aspects of the Anders Plan were

protectable or cite any supporting evidence.

       Savant cited Mr. Larson’s report, but that report opines only that the accused

houses and the Anders Plan are similar; it provides no facts or analysis supporting the

protectability of any element or arrangement of elements. On the contrary, Mr. Larson’s

report even supports Defendants’ assertion that the Anders Plan consists of standard

arrangements of individual elements, which copyright law does not protect. In discussing

the overall layout of the Anders Plan, Mr. Larson said that “[m]any homes in [the

Blackwood Drive] neighborhood, and many others, likely share very similar programs for

their main floor (3 car garage, master bedroom and supporting bathroom and walk in

closet, two other bedrooms that may share a bathroom, a kitchen, a mudroom, a laundry

room, and a great room).” Aplt. App. at 404. Later, he reiterated his opinion about the

common nature of this layout, stating, “many homes in Colorado likely share nearly

exactly the same programmatic requirements for the first floor.” Id. at 405.

       Finally, Savant did not even acknowledge Mr. Fisher’s suggestion that the iron

bars on the garage windows might be protectable and therefore did not dispute

Defendants’ evidence indicating the garage windows of the accused houses lacked any

such bars.


                                           - 16 -
                                       * * * *

       We therefore agree with the district court’s conclusion that Savant failed to carry

its burden on summary judgment. Savant offered no evidence indicating (1) any

individual element or (2) any arrangement of elements was protectable. As to the one

element Mr. Fisher identified as potentially protectable—the iron bars on the garage

windows of the Anders Plan—Savant failed to dispute Defendants’ evidence that the

garage windows of the accused houses were entirely distinct, as they lacked any iron

bars.8 As to the arrangement of elements, Mr. Larson’s report supported rather than

disputed Defendants’ evidence indicating that the overall layout of the rooms was

standard in Colorado. Savant therefore failed to offer any basis for a finding of

substantial similarity. Because substantial similarity is an essential element of copyright

infringement, Defendants were entitled to summary judgment. See Bausman, 252 F.3d at

1115 (“To avoid summary judgment, the nonmovant must establish, at a minimum, an

inference of the presence of each element essential to the case.”).

       For these reasons, we affirm the district court’s grant of summary judgment as to

Savant’s copyright claim.


       8
         The district court concluded the garage windows of the accused houses were
entirely distinct because (1) each accused house had only one garage window and
(2) there were no iron bars on these windows. The record provides adequate support only
for the second fact. Based on this fact alone, we agree with the district court’s conclusion
that the garage windows of the accused houses were distinct from those of the Anders
Plan.




                                           - 17 -
       b. Savant’s Arguments

       We additionally affirm because Savant’s contentions that the district court erred

are not persuasive. First, Savant argues the district court erroneously analyzed substantial

similarity by applying the AFC test. Second, it contends the court improperly treated the

parties’ expert reports, adopting a legal conclusion in Mr. Fisher’s report and excluding

Mr. Larson’s report entirely.

              i. The District Court’s Application of the AFC Test

       Savant argues the district court should not have applied the AFC test because that

test is categorically inapplicable to architectural works. The AFC test derives its name

from its three steps. At the abstraction step, “we separate the ideas (and basic utilitarian

functions), which are not protectable, from the particular expression of the work.”

Country Kids, 77 F.3d at 1284-85. 9 Next, “we filter out the nonprotectable components



       9
         This step originates from the abstraction test articulated by Judge Learned Hand
in the context of a theatrical script:

       Upon any work, and especially upon a play, a great number of patterns of
       increasing generality will fit equally well, as more and more of the incident
       is left out. The last may perhaps be no more than the most general
       statement of what the play is about, and at times might consist only of its
       title; but there is a point in this series of abstractions where they are no
       longer protected, since otherwise the playwright could prevent the use of
       his “ideas,” to which, apart from their expression, his property is never
       extended.

Autoskill Inc. v. Nat’l Educ. Support Sys., Inc., 994 F.2d 1476, 1490 (10th Cir. 1993)
(quoting Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930)), overruled
on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495,
496 (10th Cir. 2011).

                                                                               Continued . . .

                                            - 18 -
of the product from the original expression.” Id. at 1285. Finally, “we compare the

remaining protected elements to the allegedly copied work to determine if the two works

are substantially similar.” Id. The district court did not err for two reasons.

       First, to the extent the court even applied the AFC test,10 it did so only after

concluding Savant had failed to carry its summary judgment burden by failing to show

that any of the nine elements was protectable. The court’s use of the AFC test to

independently analyze the protectability of those elements was therefore unnecessary. It

was Savant’s burden, not the court’s, to identify what content was protectable under

copyright law.

       Second, we reject Savant’s contention that our decision in Blehm recognized the

AFC test is categorically inapplicable to architectural works by “specifically affirm[ing]”

the D.C. Circuit’s approach to analyzing the substantial similarity of architectural works

in Sturdza. Aplt. Br. at 18. Sturdza emphasized that the “substantial similarity

determination requires comparison not only of the two works’ individual elements in



        The abstraction step involves a more detailed series of steps when applied to
computer programs. Specifically, we examine “six levels of generally declining
abstraction: (i) the main purpose, (ii) the program structure or architecture, (iii) modules,
(iv) algorithms and data structures, (v) source code, and (vi) object code.” Gates Rubber,
9 F.3d at 835. The district court did not apply this more detailed form of the abstraction
step unique to computer programs; its applicability to architectural works is therefore not
at issue here.
       10
        The district court’s ostensible application of the AFC test involved no more than
what every substantial similarity analysis must entail: identifying a work’s protectable
elements and determining whether there is substantial similarity between the accused
work and those elements.



                                            - 19 -
isolation, but also of their overall look and feel.” 281 F.3d at 1296 (quotations omitted).

Savant suggests that by focusing on discrete elements, the AFC test ignores the “overall

look and feel” of an architectural work and therefore contradicts Blehm and Sturdza. We

disagree for three reasons.

       First, Blehm in no way suggested that the AFC test is categorically inapplicable to

architectural works. On the contrary, it explained that the test shares the goal of the

general substantial similarity analysis applied to any work: “separating unprotectable

ideas from protectable expression in [the] copyrighted works and comparing the

remaining protectable expression to the [allegedly infringing] images to determine

whether they are substantially similar.” Blehm, 702 F.3d at 1201 n.4. For this reason, we

have used the test to analyze content as diverse as computer programs, see Gates Rubber,

9 F.3d at 834-46 and wooden dolls, see Country Kids, 77 F.3d at 1284-87.

       Second, Blehm did not affirm Sturdza; it only referred to Sturdza as an illustration

of the idea/expression dichotomy, Blehm, 702 F.3d at 1201-02, and Blehm was not an

architectural work case.

       Third, even if we accepted Sturdza’s emphasis on the “overall look and feel” of a

work, that in no way suggests the categorical inapplicability of the AFC test to

architectural works. 281 F.3d at 1296. Sturdza emphasized the “overall look and feel” of

a work as following two general principles of substantial similarity: (1) that the

substantial similarity analysis must focus on “the overall similarities rather than the

minute differences between the two works,” 281 F.3d at 1296 (quoting Country Kids, 77

F.3d at 1288), and (2) that “protectible expression may arise through the ways in which


                                            - 20 -
artists combine even unprotectible elements,” id. Savant suggests the AFC test is at odds

with the second principle because its element-by-element approach precludes examining

original arrangements of individual elements. See, e.g., Aplt. Br. at 3-4. We disagree.

The abstraction step requires a court to examine a work at broad levels of generality—

levels that may involve protectable arrangements of individual elements, as opposed to

discrete elements themselves. See Country Kids, 77 F.3d at 1286.11

       The district court therefore did not err in its application of the AFC test.

              ii. The District Court’s Treatment of the Expert Opinions

       Savant contends the district court committed two reversible errors in its treatment

of the expert reports. Both contentions fail.

       First, Savant argues the district court improperly adopted a legal conclusion from

Mr. Fisher’s report. Savant failed to object to the Fisher report on this ground in its

opposition to summary judgment. It therefore forfeited this argument. Richison v. Ernest

Grp., 634 F.3d 1123, 1128 (10th Cir. 2011) (“[I]f [a] theory simply wasn’t raised before

the district court, we usually hold it forfeited.”). Savant has failed to argue plain error,

which “surely marks the end of the road for [its] argument for reversal not first presented

to the district court.” Id. at 1131.


       11
          Savant additionally appears to suggest that, even if the AFC test does not
preclude a court from analyzing an arrangement of individual elements in an architectural
work case, the district court failed to conduct any such analysis in applying the test to
these facts. We reject this argument. The absence of this analysis in the district court’s
opinion is due to Savant’s own failure to identify even one selection or arrangement of
individual elements as protectable.



                                            - 21 -
       Second, Savant argues the district court erroneously excluded Mr. Larson’s report

sua sponte without first analyzing whether it was admissible under Federal Rule of

Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Savant’s

argument is meritless. The district court clearly considered Mr. Larson’s report and

concluded it offered no evidence of the protectability of any element or arrangement of

elements.

       C. Contributory Copyright Infringement and Civil Conspiracy Claims

       The district court also granted Defendants summary judgment on the contributory

copyright infringement and civil conspiracy claims because they were derivative of

Savant’s failed copyright infringement claim. We affirm.

       Contributory copyright infringement is derivative of direct copyright infringement.

It occurs “when the defendant causes or materially contributes to another’s infringing

activities and knows of the infringement.” Diversey v. Schmidly, 738 F.3d 1196, 1204

(10th Cir. 2013). Thus, “‘[t]here can be no contributory infringement without a direct

infringement.’” La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1181 (10th Cir.

2009) (quoting Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883, 889 (6th

Cir. 2004)). Savant has failed to show direct copyright infringement for the reasons

explained above. As a result, its contributory infringement claim also fails.

       Savant’s civil conspiracy claim also turns on Savant’s copyright infringement

claim. “To establish a civil conspiracy in Colorado, a plaintiff must show: (1) two or

more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object

or course of action; (4) an unlawful overt act; and (5) damages as to the proximate


                                           - 22 -
result.” Nelson v. Elway, 908 P.2d 102, 106 (Colo. 1995); accord Scott v. Hern, 216 F.3d

897, 918 (10th Cir. 2000). Savant alleged that the unlawful act underlying the civil

conspiracy was copyright infringement. The failure of the copyright infringement claim

therefore defeats the civil conspiracy claim.

       For these reasons, we affirm the district court’s grant of summary judgment as to

the contributory copyright infringement and civil conspiracy claims.

                          D. Trade Dress Infringement Claim

       We also affirm the district court’s grant of summary judgment on the trade dress

infringement claim. It concluded that Savant offered insufficient evidence of inherent

distinctiveness or secondary meaning—an essential element of trade dress infringement.

1. Legal Background

       A trade dress is an object’s “total image and overall appearance,” and “may

include features such as size, shape, color or color combinations, texture, graphics, or

even particular sales techniques.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763,

765 n.1 (1992) (quotations omitted); see Gen. Motors Corp. v. Urban Gorilla, LLC, 500

F.3d 1222, 1226 (10th Cir. 2007). The features of a building may constitute a trade dress.

See Two Pesos, 505 U.S. at 765 (discussing an alleged trade dress consisting of the

interior and exterior features of a restaurant).

       “[T]he protection of trademarks and trade dress . . . serves the same statutory

purpose of preventing deception and unfair competition.” Two Pesos, 505 U.S. at 773.

More specifically,




                                             - 23 -
       [p]rotection of trade dress, no less than of trademarks, serves the [Lanham]
       Act’s purpose to “secure to the owner of the mark the goodwill of his
       business and to protect the ability of consumers to distinguish among
       competing producers. National protection of trademarks is desirable,
       Congress concluded, because trademarks foster competition and the
       maintenance of quality by securing to the producer the benefits of good
       reputation.”

Id. at 774 (quoting Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 198

(1985)).12

       A party may register a trade dress with the United States Patent and Trademark

Office under § 2 of the Lanham Act, 15 U.S.C. § 1052. See Wal-Mart Stores, Inc. v.

Samara Bros., 529 U.S. 205, 209-10 (2000). But the failure to register a trade dress does

not preclude its protectability. Under § 43(a) of the Lanham Act, 15 U.S.C. § 1125, a

plaintiff may obtain relief for the infringement of an unregistered trade dress. See Two

       12
            As the Seventh Circuit has similarly explained in a trademark case:

       The purpose [of trademark law] is to reduce the cost of information to
       consumers by making it easy for them to identify the products or producers
       with which they have had either good experiences, so that they want to
       keep buying the product (or buying from the producer), or bad experiences,
       so that they want to avoid the product or the producer in the future. This
       purpose is achieved by letting a producer pick an identifying name or
       symbol for his brand, and forbidding competing producers to use the same
       or a confusingly similar name or symbol on their brands.

W.T. Rogers Co. v. Keene, 778 F.2d 334, 338-39 (7th Cir. 1985); see also Publications
Int'l, Ltd. v. Landoll, Inc., 164 F.3d 337, 338 (7th Cir. 1998) (“Trade dress . . . serves the
same function as trademark, and is treated the same way by the Lanham Act and the
cases interpreting it.”); 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair
Competition § 8:1 (4th ed. 2015) (“Today, unregistered trade dress is protected under
federal Lanham Act § 43(a) under the same rules as are trademarks. Thus, the history of
American law throughout much of the 20th century is the gradual disappearance of
distinctions between the law of ‘trade dress’ and that of ‘trademarks.’”).



                                            - 24 -
Pesos, 505 U.S. at 767. Savant alleged its trade dress is unregistered and brought suit

under § 43(a).

       To obtain relief under § 43(a), a plaintiff must show: “(1) The trade dress is

inherently distinctive or has become distinctive through secondary meaning; (2) There is

a likelihood of confusion among consumers as to the source of the competing products;

and (3) The trade dress is nonfunctional.” Gen. Motors, 500 F.3d at 1227.

       Savant failed to satisfy the first requirement, which required it to show “either

(a) that [the] trade dress features (or feature) are inherently distinctive because their

intrinsic nature is such as to almost automatically tell a customer that they refer to a

brand, or (b) that the trade dress has become distinctive through acquisition of secondary

meaning, so that its primary significance in the minds of potential consumers is no longer

as an indicator of something about the product itself but as an indicator of its source or

brand.” Vornado Air Circulation Sys., Inc. v. Duracraft Corp., 58 F.3d 1498, 1502 (10th

Cir. 1995) (quotations omitted).

       a. Inherent Distinctiveness

       A trade dress is inherently distinctive if its “‘intrinsic nature serves to identify a

particular source.’” Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 977 (10th Cir.

2002) (quoting Two Pesos, 505 U.S. at 768). Trade dress, like trademarks, are classified

in the following categories of generally increasing distinctiveness: (1) generic, (2)

descriptive, (3) suggestive, (4) arbitrary, or (5) fanciful. Two Pesos, 505 U.S. at 768, 773

(explaining that this five-category spectrum of distinctiveness, which originated in

trademark law, is equally applicable to trade dress law); Sally Beauty, 304 F.3d at 977.


                                             - 25 -
       A generic trade dress or trademark “refe[rs] to the genus of which the particular

product is a species.” Two Pesos, 505 U.S. at 768 (quotations omitted). Because a

generic trade dress or trademark can never be source-identifying, it receives no

protection. Id. at 768.

       A descriptive trade dress or trademark “identifies a characteristic or quality of an

article or service, . . . as, for example, its color, odor, function, dimensions, or

ingredients.” Beer Nuts, Inc. v. Clover Club Foods Co., 711 F.2d 934, 939 (10th Cir.

1983) (quotations omitted). It is not inherently source-identifying and therefore receives

no protection, unless it “acquire[s] distinctiveness” over time, or develops secondary

meaning, which we explain below. Two Pesos, 505 U.S. at 769.

       A suggestive trade dress or trademark “subtly connote[s] something about the

product[].” Beer Nuts, 711 F.2d at 939 n.5 (quotations omitted). Finally, a trade dress or

trademark that is fanciful or arbitrary bears “no relationship to the product[s] or service[s]

with which [it is] associated.” Id. (quotations omitted). Of these five categories, only

suggestive, fanciful, or arbitrary trade dresses or trademarks are inherently distinctive.

Two Pesos, 505 U.S. at 768.

       b. Secondary Meaning

       To acquire secondary meaning, a trade dress “must have been used so long and so

exclusively by one producer with reference to his goods or articles that, in the trade and

to that branch of the purchasing public, the [trade dress] has come to mean that the article

is his product.” Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1154 (10th Cir. 2013)

(quotations omitted). Put differently, secondary meaning exists when “in the consumer’s


                                             - 26 -
mind the [trade dress] denotes a single thing coming from a single source.” Sally Beauty,

304 F.3d at 978 (quotations omitted).

       Secondary meaning may be shown by “direct evidence, such as consumer surveys

or testimony from consumers.” Water Pik, 726 F.3d at 1154 (quotations omitted).

Circumstantial evidence may also be used, such as (1) the length and manner of the trade

dress’s use, id.; (2) the nature and extent of advertising and promotion of the trade dress,

id.; (3) the efforts made in the direction of promoting a conscious connection, in the

public’s mind, between the trade dress and a particular product or venture, id.; (4) actual

consumer confusion, see Vail Assocs., Inc. v. Vend-Tel-Co., 516 F.3d 853, 866-67 (10th

Cir. 2008);13 (5) proof of intentional copying, see Sally Beauty, 304 F.3d at 978; or

(6) evidence of sales volume, see id. Sales volume, however, only suggests secondary

meaning “when presented in conjunction with other evidence;” “[s]tanding alone, sales

volume may not be indicative of secondary meaning because it could be related to factors

other than source identification.” Id.

2. Analysis

       The district court granted Defendants summary judgment on two grounds:

(1) Savant failed to offer evidence of inherent distinctiveness or secondary meaning and




       13
         See also 2 McCarthy, McCarthy on Trademarks and Unfair Competition
§ 15:11 (4th ed. 2015) (“If buyers are confused between two sources, then this also
means that they must have recognized plaintiff’s designation as a trademark and
associated it only with plaintiff.”).



                                           - 27 -
(2) no reasonable jury could find a likelihood of confusion. We agree as to the first

ground and therefore need not address the second.

       Savant asserted in district court that it proved both inherent distinctiveness and

secondary meaning with evidence of actual consumer confusion, citing Mr. Strope’s

deposition testimony that at least one potential consumer and a realtor were confused as

to whether Savant had built one of the accused houses. Savant abandons this argument

on appeal, so we do not consider it. United States v. Yelloweagle, 643 F.3d 1275, 1280

(10th Cir. 2011) (“Under [Federal Rule of Appellate Procedure 28], where a defendant

raises an issue before the district court but does not pursue it on appeal, we ordinarily

consider the issue waived.”).

       a. Inherent Distinctiveness

       In moving for summary judgment, Defendants asserted Savant offered no

evidence of inherent distinctiveness. They also cited Mr. Fisher’s opinion that the

Anders Plan consisted of standard elements and standard arrangements of elements,

precluding a finding of inherent distinctiveness.

       In response, Savant asserted and continues to assert on appeal that its trade dress

was inherently distinctive based on the nine elements it alleges are original or unique.

Merely reciting these nine elements does not create a genuine dispute of fact as to

inherent distinctiveness. Savant has not offered arguments or facts indicating that these

nine elements are original or unique so as to make the alleged trade dress inherently

source-identifying (meaning suggestive, arbitrary, or fanciful). See Cole v. Ruidoso Mun.

Sch., 43 F.3d 1373, 1382 (10th Cir. 1994) (“Conclusory statements are insufficient to


                                            - 28 -
defeat a motion for summary judgment.”). It has also failed to dispute Mr. Fisher’s report

indicating the Anders Plan consisted of standard content, which precludes a finding of

inherent distinctiveness.

       b. Secondary Meaning

       Savant also failed to raise a fact issue as to secondary meaning. Savant suggested

in district court that its sales volume was probative of secondary meaning, citing its sale

of six Anders Plan homes. On appeal, it continues to cite this evidence of sales volume

and adds that proof of intentional copying also indicates secondary meaning.

       We decline to consider Savant’s argument that proof of intentional copying

suggests secondary meaning. Although we review a grant of summary judgment de

novo, “we conduct that review from the perspective of the district court at the time it

made its ruling, ordinarily limiting our review to the materials adequately brought to the

attention of the district court by the parties.” Adler, 144 F.3d at 671. Moreover, we do

not consider arguments made for the first time on appeal where the party asserting the

argument has failed to argue plain error. Richison, 634 F.3d at 1131 (“[T]he failure to

argue for plain error and its application on appeal . . . marks the end of the road for an

argument for reversal not first presented to the district court.”).

       Savant’s evidence of sales volume is therefore the only evidence of secondary

meaning properly before this court. “Standing alone, sales volume may not be indicative

of secondary meaning because it could be related to factors other than source

identification.” Sally Beauty, 304 F.3d at 978. Savant therefore has failed to create a fact

issue as to secondary meaning.


                                             - 29 -
                                        * * * *

       Because Savant failed to raise a fact issue as to inherent distinctiveness or

secondary meaning, it failed to satisfy its summary judgment burden on its trade dress

claim. See Bausman, 252 F.3d at 1115 (“[T]he nonmovant must establish, at a minimum,

an inference of the presence of each element essential to the case.”).

                                   III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s grant of summary

judgment.




                                           - 30 -
