               Case: 15-11912       Date Filed: 06/17/2016      Page: 1 of 43


                                                                                 [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 15-11912
                              ________________________

                      D.C. Docket No. 4:08-cv-00355-MCR-CAS

HOME DESIGN SERVICES, INC.,

                                                                       Plaintiff - Appellant,

                                            versus

TURNER HERITAGE HOMES INC.,
FREDERICK E. TURNER,
DOUGLAS E. TURNER,
SUMMERBROOK HOMES, INC.,
GREENFIELD HOMES, INC.,
                                                                    Defendants - Appellees.
                               _______________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                             _______________________

                                      (June 17, 2016)

Before TJOFLAT and ROSENBAUM, Circuit Judges, and GOLDBERG, Judge *




       *
          The Honorable Richard W. Goldberg, of the United States Court of International Trade,
sitting by designation.
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GOLDBERG, Judge:

      Plaintiff Home Design Services, Inc. (“Home Design”) has sued Defendants

Turner Heritage Homes, Inc., et al. (“Turner”) for copyright infringement on Home

Design’s architectural floor plan HDS-2089. According to Home Design, two of

Turner’s floor plans, the Laurent and the Dakota, infringe on HDS-2089. Home

Design’s lawsuit went to trial before the district court, and a jury returned a verdict

in favor of Home Design, awarding $127,760 in damages. Turner moved for

judgment notwithstanding the jury’s verdict under Rule 50(b), which the district

court granted. We affirm.

                                  BACKGROUND

      Home Design registered HDS-2089 with the Copyright Office in August

1991. Turner created the Laurent plan in 1999, and thereafter slightly modified the

Laurent to create the Dakota. Both HDS-2089 and the Laurent depict what is

known as a “four-three split plan”: a four-bedroom, three-bathroom house with a

“master” bedroom or suite on one end and three more bedrooms on the other. The

plans, which are attached as an appendix, share in common the same set of rooms,

arranged in the same overall layout. The plans also share the presence, location,

and function of many (but not all) walls, entryways, windows, and fixtures.

      Before this case went to trial, Turner moved for summary judgment, arguing

that the Turner plans did not infringe on HDS-2089 because the plans were not



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“substantially similar” when it came to HDS-2089’s copyright-protectable

expression. The district court denied summary judgment, holding that

      while there [are] an abundance of small differences in areas of
      protectable expression, including the heights of walls, placement of
      windows, and the number of doors in some entryways, there are also
      myriad similarities in areas of protectable expression, including the
      arrangement and location of rooms, the unusual angle of the kitchen
      sink, the placement of the master bedroom and garage, and the common
      foyer at the entrance between the living and dining rooms. As a result
      of these many differences and many similarities in the areas of
      protectable expression, the [c]ourt is unable to conclude that, as a matter
      of law, no reasonable jury could find the works to be or not to be
      substantially . . . similar.

      At trial, the district court heard testimony regarding HDS-2089 and the

Turner plans. James Zirkel, Home Design’s chief executive officer, compared

HDS-2089 to the plan for the third Laurent home that Turner built. (Turner built

over 160 homes using either the Laurent or Dakota plan.) Zirkel deemed the plans

similar “except for a few minor parts,” and specifically identified the layout of the

rooms as shared. Zirkel classified as “minor” the differences between the plans’

fireplace placements, orientation of water closets, and shape of living-room wall.

(The Laurent’s living room has a squared wall abutting the family room and foyer,

while HDS-2089’s has an angled wall.) Zirkel also conceded the following




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“numerous small changes, but not major changes,” some of which he classified as

“options”:

                                 HDS-2089                          Laurent Plan Generally
   Front Door                 Double front door                       Single front door
   Front Porch       Projects beyond front bedroom and          Flush with front bedroom and
                                   garage                                   garage
      Foyer            Opens onto living spaces either        Archways and columns leading into
                        without archways or columns                     living spaces

In addition, with respect to the particular Laurent home he had looked at, Zirkel

identified a number of further “small changes” or “options”:

                                  HDS-2089                            Third Laurent Home
  Back Hallway       Squared entry; sliding pocket door                  Archway entry
 Pool Bathroom                   Linen closet                            No linen closet
 Master Bedroom      Flat, ten-foot ceiling; plant shelves;    Vaulted ceiling; no plant shelves;
                      windows have different sizes and         windows have different sizes and
                                   locations                                locations
  Living Room        Twelve-foot ceiling; windows have          Ten-foot ceiling; windows have
                         different sizes and locations            different sizes and locations
   Secondary         Different ceiling heights; windows       Different ceiling heights; windows
   Bedrooms            in rearmost secondary bedroom            in rearmost secondary bedroom
                      have different sizes and locations       have different sizes and locations
      Nook           Symmetrical angled walls with one          Asymmetrical angled walls with
                              window and a soffit                         two windows
     Kitchen            Smaller than Laurent; no desk;          Larger than HDS-2089; built-in
                       dishwasher in different location          desk; dishwasher in different
                                                                             location
     Master            Water closet orientation creates         Water closet orientation creates
    Bathroom              narrower space at end of            deeper space at end of kitchen/nook
                    kitchen/nook hallway; larger shower        hallway; smaller enclosed shower
                             with walk-in area
  Master Closet            Four inches narrower                       Four inches wider

      On cross-examination, Turner asked Zirkel about the originality of HDS-

2089. Zirkel confirmed that HDS-2089 is a split plan, and that at the time that

Home Design created HDS-2809 approximately seventy percent of the builders he



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dealt with were requesting split plans. Later in the trial, Home Design introduced

the deposition testimony of the Home Design employee who drafted HDS-2089.

According to the employee, “there’s nothing fancy about [HDS-2089]. It’s been

done over and over again in different variations and iterations. It’s a 3–1 split,1

three bedrooms on one side, a master in the rear. It’s . . . pretty generic.” At the

time that the employee drafted HDS-2089, “[t]here were plans that were

preexisting like this—three bedrooms on one side, pool bath, a master on the other

side. So it was a variation on different themes.”

       Turner also asked Zirkel to compare HDS-2089 to two plans that Home

Design had created at an earlier date, the HDS-2041 and the Timberwood.

Turner’s theory was that the same similarities Zirkel had identified between HDS-

2089 and the Turner plans also surfaced when comparing HDS-2089 to its

predecessors. Zirkel confirmed that HDS-2041 and HDS-2089 share the same

layout in terms of room location, but differentiated HDS-2041 based on differences

in configuration. Zirkel also testified that HDS-2089 and the Timberwood “are not

substantially similar. They are not strikingly similar. They are a four-bedroom

split plan.”



       1
          Although the employee labelled HDS-2089 a three–one split plan, rather than a four–
three split plan, his underlying description of HDS-2089 as featuring four total bedrooms with
three on one side and one on the other matches the definition of a four–three split plan. (The
definition also has to do with the number of bathrooms—three—which the employee did not
address.)


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       Home Design’s expert Kevin Alter compared HDS-2089 to the Laurent and

Dakota plans, describing the plans as “extraordinarily similar.” Alter noted that

“the overall shape, the massing, 2 the individual layout of the rooms is the same.

The[ rooms] all have the same shape, width, and length. . . . The[ plans] have the

same organization of rooms. You enter the foyer, the dining room and living room

on other side.” Alter further explained that the “overall organization of traffic

patterns” and arrangement of rooms is the same.

       Although Alter acknowledged “modest differences” among the plans he

compared, he also highlighted some mutual unusual design choices. On both

HDS-2089 and the Turner plans, the partition dividing the kitchen and the family

room does not extend all the way to the ceiling, but instead falls two feet short.

Furthermore, the master bedrooms are oddly spacious for plans that are otherwise

arranged efficiently. The master bedroom on both plans also includes an angled

wall that makes furniture placement awkward. And the master closet opens onto

the master bathroom, not the bedroom, which Alter described as “a little bit

unusual” and “not ideal.” Finally, the Laurent plan includes the same thick

bathroom wall as the HDS-2089, even though only HDS-2089 has its plumbing

arranged so that the thick wall is necessary. Besides identifying these unusual



       2
         According to Alter, “massing” means “the overall shape of the volume, the shape, the
particularities of [a plan’s] overall configuration.”


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design choices, Alter classified certain differences between the plans, like the

placement of the fireplace, as “afterthoughts.”

      On cross-examination, Turner pressed Alter on the originality of HDS-2089.

Alter conceded that HDS-2089 “does not appear unusual” and is not “radically

different [from] the many things that are on the market.” Alter further allowed that

HDS-2089 featured many industry-standard design choices, including the

adjacency of the dining room and breakfast nook to the kitchen, the split

arrangement of the master bedroom along one exterior wall and the secondary

bedrooms along the other, and the dimensions of the secondary bedrooms.

      Turner then rebutted with the expert testimony of Robert Koch. Koch began

by reviewing the industry standards governing the overall layout of a four–three

split plan, and describing the various considerations that drove the standards.

Koch then identified numerous plans, including but not limited to HDS-2089 and

the Turner plans, that shared an overall layout reflecting industry standards. 3 Koch

also identified differences between HDS-2089 and the Turner plans, many of




      3
          In his comparison, Koch referred to a different one of the Laurent’s many iterations.


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which he chalked up to the Laurent being more “traditional” than HDS-2089,

which Koch described as “modern,” “casual,” and “relaxed”:

                                HDS-2089                           Laurent (Koch version)
   Front Porch      Small porch; different configuration     “[V]ery expensive front porch that
                               and columns                  reache[s] from the front door all the
                                                             way over [to] the bedroom . . . on
                                                                the opposing side”; different
                                                                 configuration and columns
   Front Door                    Double doors                            Single door
     Foyer          No cased openings or headers above        Formal cased openings to living
                      the walls in the foyer separating            room and dining room
                        living room and dining room
  Family Room            Modern sliding-glass door;          Traditional French doors; formal
                            Fireplace not located to          windows; Fireplace located to
                          accommodate a flat-screen             accommodate a flat-screen
                                   television                            television
      Back            Patio; backdoor to patio swings        Porch; backdoor swings inward
  Porch/Patio                       outward
      Nook                Contiguous glass partition                  Separate windows
 Master Bedroom      Double doors; single high window         Single door to restrict views into
                           located above headboard           bedroom; formal, conventionally
                                                                      located windows
   Hallways          Different dimensions and openings      Different dimensions and openings
    Master           Opening to master bedroom; water          Door to master bedroom; water
   Bathroom          closet orientation creates shallower     closet orientation creates deeper
                         space at end of kitchen/nook           space at end of kitchen/nook
                      hallway; toilet not obscured from     hallway; toilet obscured from view;
                      view; linen closet separates water     linen closet separates bathtub and
                     closet and shower; doorless shower       shower; traditional shower door
     Garage             Door to laundry room swings             Door to laundry room swings
                                    inward                                 outward
    Kitchen          Desk next to range; wall separating        Cabinetry next to range; wall
                      kitchen and family room does not      separating kitchen and family room
                               extend to ceiling                      extends to ceiling
   Secondary           Different style countertops and         Different style countertops and
   Bathroom                 access to water closet                  access to water closet
 Pool Bathroom                   Linen closet                          No linen closet
   Secondary         Different windows and dimensions       Different windows and dimensions
   Bedrooms
  Living Room       Different ceiling height; angled wall    Different ceiling height; squared
                     separating living room and family       wall separating living room and
                                    room                               family room



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Koch also drew a global distinction between the HDS-2089 and the Laurent in

terms of their elevations. Finally, Koch compared HDS-2089 to one of Turner’s

Dakota plans, and identified a slew of other differences. (Given the variety in

Turner plans, Koch agreed that different Turner plans would have different

differences with respect to HDS-2089.)

      The jury returned a verdict in favor of Home Design, finding that the Turner

plans infringed on HDS-2089 and awarding Home Design $127,760 in damages.

Turner moved for judgment as a matter of law under Rule 50(b). According to

Turner, no reasonable jury could have found the Turner plans “substantially

similar” to HDS-2089.

      The district court granted Turner’s Rule 50(b) motion. At the outset, the

district court recounted Koch’s testimony regarding the “numerous, material”

differences between HDS-2089 and the Laurent, as well as Koch’s generalization

that these differences rendered the Laurent traditional where HDS-2089 was

modern. The district court then continued,

      The[ differences identified by Koch] are relevant [to whether a
      reasonable jury could have found the Turner plans “substantially
      similar” to HDS-2089] and must be considered at the level of protected
      expression. Although Home Design’s expert Kevin Alter described
      these differences as “modest,” the Eleventh Circuit has made clear that
      “modest dissimilarities” are significant when comparing architectural
      works, due to the fact that “there are only a limited number of ways” to
      organize standard architectural features, such that “similarities in the
      general layout of rooms can easily occur innocently.” Thus, the fact
      that the floor plans at issue are similar in their overall layout is not

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      dispositive, but more importantly, the inclusion of standard
      architectural features, such as large living spaces in the middle of the
      home or secondary bedrooms located on a particular side of the house,
      are merely “ideas” that are generally unprotected [under copyright law]
      (for example, the concept of a “split-bedroom” plan). Accordingly,
      although the general layout of each floor plan at issue is similar, . . . the
      [c]ourt finds the dissimilarities dispositive, especially in light of the
      instruction that “modest dissimilarities” are more significant in
      architectural designs than they are in other types of art works. . . .
             [T]he [c]ourt finds that no jury following the [c]ourt’s
      instructions on the law could reasonably find the Laurent and Dakota
      designs substantially similar to HDS-2089 given the amount of
      significant dissimilarities between the plans at the level of protected
      expression. To find infringement on this record, the jury in this case
      must have disregarded the significant differences that existed at the
      level of protected expression and focused instead on the unprotected
      similarities in the designs. This is erroneous as a matter of law.

Accordingly, the district court granted Turner’s Rule 50(b) motion, and instructed

the clerk to enter judgment against Home Design.

      On appeal, Home Design contests the district court’s judgment

notwithstanding the jury’s verdict. According to Home Design, a reasonable jury

could and did find that the Turner plans were “substantially similar” to HDS-2089.

After considering Home Design’s appeal, we affirm.

               JURISDICTION AND STANDARD OF REVIEW

      The district court had jurisdiction pursuant to 28 U.S.C. § 1338(a) (2012)

and 28 U.S.C. § 1331. We exercise appellate jurisdiction pursuant to 28 U.S.C.

§ 1291. We review a district court’s ruling on a motion for judgment as a matter of

law de novo. Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713, 723 (11th Cir.



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2012). “Under Rule 50, a court should render judgment as a matter of law

when . . . there is no legally sufficient evidentiary basis for a reasonable jury to

find for [the nonmoving] party.” Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 149, 120 S.Ct. 2097, 2109 (2000) (citation omitted). The court reviews

“all the evidence, drawing all reasonable inferences in favor of the nonmoving

party.” Hubbard, 688 F.3d at 724.

                                    DISCUSSION

      Copyright infringement has two elements: “(1) ownership of a valid

copyright, and (2) copying of [protectable] elements.” Miller’s Ale House, Inc. v.

Boyton Carolina Ale House, LLC, 702 F.3d 1312, 1325 (11th Cir. 2012) (alteration

in original) (quoting Oravec v. Sunny Isles Luxury Ventures, LLC, 527 F.3d 1218,

1223 (11th Cir. 2008)). The second element can be proven either with direct proof

of copying or, if direct proof is unavailable, “by demonstrating that the defendants

had access to the copyrighted work and that the works are ‘substantially similar.’”

Oravec, 527 F.3d at 1223 (citation omitted). It is undisputed on appeal that Home

Design owns a valid copyright to HDS-2089. It is also undisputed that, while

Home Design lacks direct evidence that Turner copied HDS-2089, Turner did have

access to the floor plan. Therefore, Home Design will prevail on appeal if Turner

fails to show that no “reasonable jury could find [HDS-2089 and the Turner plans]




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substantially similar at the level of protected expression.” Miller’s Ale House, 702

F.3d at 1325.

       The back end of this formula (“level of protected expression”) is

meaningful, because not every nook and cranny of an architectural floor plan

enjoys copyright protection. 4 First, floor plans, like any work, receive copyright

protection only to the extent that they qualify as “original works of authorship.” 17

U.S.C. § 102(a). And, again like any work, floor plans are subject to the

“fundamental axiom that copyright protection does not extend to ideas but only to

particular expressions of ideas.” Oravec, 527 F.3d at 1224. The line between idea

and expression is not a bright one, and must be drawn on a case-by-case basis. Id.

at 1224–25. In general, though, it is useful to keep in mind the reason the line

exists: to strike a balance between incentivizing original expression on the one

hand and promoting the free flow of ideas on the other. Id. Architectural floor

plans are not protected by copyright to the extent that they portray ideas, rather

than expressions of ideas.

       Second, and more concretely, the Copyright Act restricts which elements of

architectural floor plans are protectable through its definition of a copyrightable

“architectural work.” 17 U.S.C. § 101 defines an “architectural work” as “the



       4
        We intend nook and cranny figuratively here, and are not yet addressing the actual nook
shared by HDS-2089 and the Turner plans.


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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.” According to legislative history,

“individual standard features” include “common windows, doors, and other staple

building components.” H.R. Rep. No. 101-735 (1990), as reprinted in 1990

U.S.C.C.A.N. 6935, 6949. The upshot of the idea–expression distinction and the

statutory definition of “architectural work” is that, “while individual standard

features and architectural elements classifiable as ideas are not themselves

copyrightable, an architect’s original combination or arrangement of such

[elements] may be.” Oravec, 527 F.3d at 1225.

      In Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., we likened

the statutory definition of “architectural work” to that of a “compilation.” 554 F.3d

914, 919 (11th Cir. 2008). Based on the similarity, we concluded that architectural

works received the same “thin” copyright protection awarded to compilations (as

opposed to the “thicker” protection we would afford creative or derivative works).

Id. at 919–20 & n.3. “Thus, when viewed through the narrow lens of compilation

analysis[,] only the original, and thus protected[,] arrangement and coordination of

spaces, elements[,] and other staple building components should be compared.” Id.

And we also took the opportunity to explain why it is appropriate for judges to rule



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out substantial similarity in cases where no reasonable jury could conclude

otherwise:

      [A] judge is better able to separate original expression from the non-
      original elements of a work where the copying of the latter is not
      protectable and the copying of the former is protectable. The judge
      understands the concept of the idea/expression dichotomy and how it
      should be applied in the context of the works before him. . . . Because
      a judge will more readily understand that all copying is not
      infringement . . . the “substantial-similarity” test is more often correctly
      administered by a judge rather than a jury—even one provided proper
      instruction. The reason for this is plain—the ability to separate
      protectable expression from non-protectable expression is, in reality, a
      question of law or, at the very least, a mixed question of law and fact.
      It is difficult for a juror, even properly instructed, to conclude, after
      looking at two works, that there is no infringement where, say, 90% of
      one is a copy of the other, but only 15% of the work is protectable
      expression that has not been copied.

Id. at 920 (citation omitted).

      Turning to the particular floor plans at issue in Intervest, we concluded that

no reasonable jury could deem them substantially similar at the level of protected

expression. Although the floor plans shared the same general layout, the district

court had identified and “focused upon the dissimilarities in [the] coordination and

arrangement” of “common components and elements.” Id. at 916, 922 app. In the

abstract, the differences identified by the district court might come across as

modest: The district court pointed out minor dimensional discrepancies between

the plans’ rooms, slight changes in the presence, arrangement, or function of

various features, incremental modifications to a number of walls, and a smattering



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of other dissimilarities. Id. at 916–18. Yet the district court ruled that these

differences precluded a finding that the floor plans were substantially similar at the

level of protected expression, and we affirmed. Id. at 921.

      In Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (2d Cir. 2014), the

Second Circuit voiced its agreement “with the outcome in Intervest, [but not] with

its reasoning.” Id. at 103. According to the Second Circuit,

      Labeling architecture a compilation obscures the real issue. Every work
      of art will have some standard elements, which taken in isolation are
      un-copyrightable, but many works will have original elements—or
      original arrangements of elements. The challenge in adjudicating
      copyright cases is not to determine whether a work is a creative work,
      a derivative work, or a compilation, but to determine what in it
      originated with the author and what did not. Intervest fails to do this.
      It compares the floor plans of the two houses, “focusing only on the
      narrow arrangement and coordination” of what it deems “standard . . .
      features” and intuits that there was no copying of the arrangement. But
      it fails to provide any analysis of what made a feature “standard” and
      unprotectable.

Id. at 104 (citation omitted). The Second Circuit’s critique of Intervest

demonstrates a difference between how we have described our copyright-

infringement doctrine versus how they do. In the Second Circuit, a court can rule

out copyright infringement as a matter of law “either because the similarity

between two works concerns only non-copyrightable elements of the plaintiff’s

work, or because no reasonable jury, properly instructed, could find that the two

works are substantially similar.” Id. at 102 n.12 (quoting Warner Bros. Inc. v. Am.

Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983) (emphasis omitted)). But the

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Eleventh Circuit declined to adopt a similar two-part framework in Oravec, on

grounds that the formulation was “not useful in [Oravec] because the two [parts]

ultimately merge into a single inquiry: whether a reasonable jury could find the

competing designs substantially similar at the level of protected expression.” 527

F.3d at 1224 n.5. In Intervest, we framed our holding in terms of the merged

inquiry from Oravec. See Intervest, 554 F.3d at 916, 921. When recounting

Intervest in Zalewski, however, the Second Circuit used terminology from the first

part of its two-part framework. According to the Second Circuit, we “intuit[ed]

that there was no copying of the [protected] arrangement,” in other words “that any

copying of the plaintiff's house designs went only to standard architectural features

arranged in standard ways.” Zalewski, 754 F.3d at 103–04.

      The Second Circuit also used the first part of its framework to decide

Zalewski. At the outset, the Second Circuit catalogued various unprotectable

standard elements of architectural works:

      [Because e]fficiency is an important architectural concern[, a]ny design
      elements attributable to building codes, topography, structures that
      already exist on the construction site, or engineering necessity
      should . . . get no protection.
             [In addition, t]here are scenes-à-faire[, or customary styles,] in
      architecture. Neoclassical government buildings, colonial houses, and
      modern high-rise office buildings are all [examples of] recognized
      styles from which architects draw. Elements taken from these styles
      should get no protection. Likewise, there are certain market
      expectations for homes or commercial buildings. Design features used
      by all architects, because of consumer demand, also get no protection.



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Id. at 105. With respect to the floor plans before the Second Circuit in Zalewski,

the court held that “even if Defendants copied Zalewski’s [colonial home] plans,

they copied only the unprotected elements of his designs.” Id. at 106. The Second

Circuit observed that many design similarities concerned uncopyrightable elements

that were “a function of consumer expectations and standard house design

generally” or “conventions” inherent to “all colonial homes.” Id. 5 The Second

Circuit then identified various “subtle differences” between Zalewski’s and the

defendants’ plans:

       [T]here are subtle differences in the paneling, size, and framing of
       Plaintiff’s and Defendants’ doors. These differences are not great, but
       given the constraints of a colonial design, they are significant. The
       same is true of the windows and garage doors that Plaintiff claims are
       identical. They are quite similar in location, size, and general design,
       but again, the similarities are due primarily to the shared colonial
       archetype. The window panes, shutters, and garage-door paneling all
       have subtle differences. Likewise, the designs’ shared footprint and
       general layout are in keeping with the colonial style. There are only so
       many ways to arrange four bedrooms upstairs and a kitchen, dining
       room, living room, and study downstairs. Beyond these similarities,
       Plaintiff’s and Defendant’s layouts are different in many ways. The
       exact placement and sizes of doors, closets, and countertops often differ
       as do the arrangements of rooms.




       5
          The Second Circuit also provided a vivid explanation as to why Zalewski could not
copyright colonial-home conventions. “Great artists often express themselves through the
vocabulary of existing forms. Shakespeare wrote his Sonnets; Brahms composed his Hungarian
Dances; and Plaintiff designed his colonial houses. Because we must preserve these forms for
future artists, neither iambic pentameter, nor European folk motifs, nor clapboard siding are
copyrightable.” Id.


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Id. at 106–07. Because Zalewski’s plans were drawn in the colonial style, and

because defendants’ plans differed in numerous subtle ways from Zalewski’s, the

Second Circuit found no copyright infringement.

       We agree with both the reasoning and outcome of Zalewski. If “the

similarity between two works concerns only non-copyrightable elements,” then

there can be no copyright infringement as a matter of law. 754 F.3d at 102 n.12.

Customary styles and efficiency- or expectation-driven industry standards are not

susceptible to copyright. Id. at 105. And when floor plans are drawn in a

customary style and to industry standards, even “subtle differences” like those in

Zalewski can indicate that there is no copyright infringement. Id. at 106–07.6

After all, customary styles and industry standards, though not themselves

copyrightable, often control room placement and features. Id.

       We also agree that Intervest is best couched as holding that there was no

copyright infringement because the floor plans at issue were similar only with

respect to their noncopyrightable elements. Although the Intervest floor plans

shared the same overall layout, the layout was not copyrightable in that case. See

Intervest, 554 F.3d at 916, 922 app. And the chosen layout restricted “the variety




       6
          As already noted, Zalewski identified subtle differences in (1) “the paneling, size, and
framing of Plaintiff’s and Defendant’s [front] doors,” and (2) the “window panes, shutters, and
garage-door paneling.” Zalewski also specified that “[t]he exact placement and sizes of doors,
closets, and countertops often differ as do the arrangements of rooms.” Id. at 106–07.


                                                 18
               Case: 15-11912         Date Filed: 06/17/2016       Page: 19 of 43


of ways [the floor plans] c[ould] be divided into [four] bedrooms, [three] baths, a

kitchen, a great room or living room, closets, porches, etc.” Howard v. Sterchi,

974 F.2d 1272, 1276 (11th Cir. 1992). “Consequently, differences . . . weigh[ed]

heavily against a finding of substantial similarity.” Miller’s Ale House, 702 F.3d at

1326. Because the layouts were noncopyrightable, and because the floor plans

differed in terms of dimensions, wall placement, and the presence and arrangement

of particular features (or use of slightly varied features), we held that the

similarities between the plans concerned only their noncopyrightable elements.

See Intervest, 554 F.3d at 916–18, 921. There was therefore no copyright

infringement. 7




       7
           It is important to frame Intervest as holding only that there is no copyright infringement
when floor plans with the same noncopyrightable layouts also boast modest differences such as
those in Intervest. A more expansive reading would nearly eliminate copyright protection for
architectural works. Specifically, if Intervest is read as holding that modest differences between
floor plans always preclude copyright infringement, then even a plan with an entirely original
layout would receive no copyright protection so long as the copying plan bore some superficial
differences. That is not the correct result. The Copyright Act protects “original works of
authorship,” including “architectural works.” 17 U.S.C. § 102.
         Also, although we agree with the Second Circuit that Intervest is best framed under the
first part of the Second Circuit’s two-part framework, we do not abandon the merged inquiry
from Oravec as a general matter. In many, perhaps most, copyright-infringement cases, sorting
out the copyrightable and uncopyrightable elements of floor plans will be unnecessary because
the floor plans will be so obviously different (in terms of overall layout or otherwise) that no
reasonable jury could find the floor plans substantially similar at the level of protected
expression. E.g., Miller’s Ale House, 702 F.3d at 1326–27 (no reasonable jury could find sports-
bar-and-restaurant floor plans substantial when central bars had different locations and interior
seating was “markedly different,” among other dissimilarities); Oravec, 527 F.3d at 1223 (no
reasonable jury could find high-rise condominiums substantially similar given, among other
differences, “concave/convex concept” featured on both sides of Oravec’s design but only one
side of Trump’s).


                                                 19
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      Taken together, Intervest and Zalewski also support the proposition that

courts are best-situated to determine whether similarity between two architectural

works concerns only their noncopyrightable elements. In Intervest, we held that

“separat[ing] protectable expression from non-protectable expression is . . . a

question of law or, at the very least, a mixed question of law and fact.” Intervest,

554 F.3d at 920. Zalewski effectuated the Intervest holding insofar as the Second

Circuit took it upon itself not only to partially define noncopyrightable expression

(customary styles, industry standards), but also to hold that in light of the floor

plans’ shared colonial style, subtle differences demonstrated the absence of

copyright infringement. Cf. Zalewski, 754 F.3d at 105–07.

      Intervest and Zalewski control this case. Although HDS-2089 and the

Turner plans share the same general layout, this is only because both sets of plans

follow the customary four–three split style, as well as the attendant industry

standards. Kevin Alter, Home Design’s own expert, conceded on cross-

examination that HDS-2089’s split-bedroom arrangement aligns with industry

standards, as does the contiguity of the dining room, breakfast nook, and kitchen.

Alter further characterized HDS-2089 as neither “unusual” nor “radically different

[from] the many things that are on the market.” No one, including Home Design,

owns a copyright to the idea of a four–three split style, nor to the industry




                                          20
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standards that architects regularly heed to achieve such a split. Cf. Zalewski, 754

F.3d at 105–06.

      It might be objected that, here, HDS-2089 and the Turner plans share

unusual design choices that disrupt the customary four–three split style and

constitute protectable expression. Of the finite number of ways to permute a

rectangle into a four–three plan, some ways may involve unique or unusual design

choices. To the extent that a four–three plan departs from customary style and

industry standards and espouses unusual design choices, those choices may

constitute protectable expression. After all, the Copyright Act protects “original

works of authorship,” including the “arrangement and composition of spaces and

elements” in a floor plan. 17 U.S.C. §§ 101–102.

      The problem for Home Design is that the design choices in HDS-2089 are

not unusual. Alter noted that both HDS-2089 and the Turner plans showcase a

kitchen–family-room partition that fails to couple with the ceiling, an oddly

spacious and angled master bedroom, a master closet that opens onto the master

bathroom (instead of the bedroom), and a thick bathroom wall, despite the fact that

only HDS-2089 has plumbing that requires such a sturdy wall. But, again, Alter

outright said that HDS-2089 is not “unusual.” He further stated that HDS-2089 is

not “radically different [from] the many things that are on the market.” We

therefore conclude that the design choices identified by Alter are not unusual, but



                                         21
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humdrum. 8 HDS-2089 reflects the customary style of a four–three split plan,

which is not entitled to copyright protection.

       In light of the constraints imposed by a four–three split style, the differences

between HDS-2089 and the Turner plans demonstrate the absence of copyright

infringement. The differences between HDS-2089 and the Turner plans are

differences in dimensions, wall placement, and the presence, arrangement, and

function of particular features around the house. Because the same sorts of

differences indicated no infringement in Intervest, that result follows in this case as

well. See Intervest, 554 F.3d at 916–18.9

       Home Design implores us to depart from Intervest insofar as it “suggests

that judges are better equipped than juries to apply the substantial similarity test to

architectural works at the summary judgment stage.” Home Design “respectfully


       8
           An investigation of other floor plans available to us lends additional, though
unnecessary, support to our position. Half of the so-called unusual design choices can be found
in, of all places, the Intervest plans. The Intervest master bedrooms are larger in proportion to
their overarching plans than the master bedrooms in this case, even though Alter dubbed the
master bedrooms in HDS-2089 and the Turner plans oddly spacious. See Intervest, 554 F.3d at
922 app. Also, the Intervest plans double down on walk-in closets letting onto the master
bathroom (not the bedroom), despite Alter saying that this arrangement is “a little bit unusual”
and “not ideal.” Id. The Intervest plans’ inclusion of these design choices suggests that they are
not unusual.
         An examination of Home Design’s Timberwood further confirms our position. The
Timberwood plan shares HDS-2089’s relative master-bedroom proportions and angled walls,
and bathroom-accessed master closets. Design choices that are common among many floor
plans are, by definition, not unusual.
       9
         Of course, differences besides those in Intervest can indicate the absence of copyright
infringement between floor plans drawn in the same customary style and to industry standards.
The differences in Zalewski, for example, fit the bill. 754 F.3d at 106–07.


                                                22
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submit[s] that Intervest’s assumption about a district court’s superior ability to

identify protected features of an architectural work should be revisited.” After all,

Home Design reminds us, “[j]udges are not generally students of architecture. Nor

are they, by their position, smarter than jurors.”

      Home Design also distinguishes Intervest from this case in terms of

procedural posture. One postural distinction is that, in Intervest, we reviewed the

district court’s grant of summary judgment. No jury verdict was involved. By

contrast, in this case, we review the district court’s grant of judgment

notwithstanding the jury’s verdict. A second difference is that, in this case, the

district court denied Turner’s prior motion for summary judgment before changing

course following the jury’s verdict. According to Home Design, one or both of

these differences portend a change in result.

      We are not convinced. Although we agree with Home Design that judges

are neither architecture students nor bestowed by rite with special intelligence, we

stand by the core premise that judges can, in certain cases, remove the question of

substantial similarity from jury consideration. We have repeatedly sanctioned

summary judgment determinations that one architectural work does not infringe on

another as a matter of law. Miller’s Ale House, 702 F.3d at 1326; Intervest, 554

F.3d at 920–21; Oravec, 527 F.3d at 1223; Beal v. Paramount Pictures, Corp., 20

F.3d 454, 459–60 (11th Cir. 1994). This practice should be unremarkable to all:



                                          23
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The whole purpose of summary judgment and judgment as a matter of law is to

allow judges to remove questions from the jury when the evidence can support

only one result. And we have further held that identifying floor plans’ unprotected

portions is a question of law. See Intervest 554 F.3d at 919–20. We are not alone:

Zalewski squarely backs this holding. Cf. Zalewski, 754 F.3d at 102. Interpreting

the law is for a judge, not a jury. If a judge concludes that floor plans are drawn in

a customary style and to industry standards, then differences between the floor

plans can relegate the plans’ similarities to the level of noncopyrightable elements.

A judge faced with such a situation can and should remove substantial similarity

from the jury, just as the district court did below.

       In light of judges’ role in sometimes removing the question of substantial

similarity from the jury, Home Design’s postural distinctions between this case and

Intervest are immaterial. All the jury’s verdict in favor of Home Design shows is

that the jury reached an unsupportable result. Rule 50(b) operates as an escape

valve for precisely this situation. And the district court’s change of heart between

summary judgment and judgment as a matter of law is equally irrelevant. A “prior

denial of summary judgment does not rule out the possibility of a subsequent

directed verdict.” Gross v. Southern Ry. Co., 446 F.2d 1057 (5th Cir. 1971). 10 We



       10
         Decisions of the Fifth Circuit handed down before September 30, 1981 are binding on
the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).


                                             24
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agree with the result that the district court ultimately reached after the jury’s

verdict: The Turner plans do not infringe on HDS-2089 as a matter of law. 11

                                     CONCLUSION

       For the foregoing reasons, we affirm the district court’s judgment

notwithstanding the jury’s verdict.

       AFFIRMED.




       11
          Home Design also argues that the district court misapplied the Rule 50 standard. We
disagree. Finally, because we agree with the district court that no reasonable jury could find
HDS-2089 and the Turner plans substantially similar, we do not reach Home Design’s subsidiary
argument that the jury awarded insufficient damages.


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ROSENBAUM, Circuit Judge, concurring:

      I agree with the panel’s conclusion that our decision in Intervest Construction,

Inc. v. Canterbury Estate Homes, Inc. (“Intervest”), 554 F.3d 914 (11th Cir. 2008),

drives this case and requires affirmance of the district court’s entry of judgment

under Rule 50. But I think that Intervest represents a wrong turn in our Circuit’s

copyright jurisprudence. Specifically, Intervest holds that judges are necessarily

better able than juries to resolve whether the “average lay observer” would find

“substantial similarity” between two architectural works. But we ask juries to

answer this same question in all kinds of other copyright cases.    Because I do not

see a basis for exempting copyright cases involving architectural works from jury

trials simply because the question of “substantial similarity” may be close, I

respectfully disagree with Intervest and would steer clear of its holding, were we not

bound by it.

      To establish copyright infringement, a plaintiff must prove (1) that it owns a

valid copyright and (2) that the defendant copied original—meaning “protectable”—

elements of the work. Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218,

1223 (11th Cir. 2008). As the Supreme Court has explained, “The mere fact that a

work is copyrighted does not mean that every element of the work may be protected.

Originality remains the sine qua non of copyright; accordingly, copyright protection

may extend only to those components of a work that are original to the author.” Feist



                                         26
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Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S. Ct. 1282, 1289

(1991).

      Where, as here, a plaintiff lacks direct proof of copying, the plaintiff may

establish the element of copying by showing that the defendant “had access to the

copyrighted work and that the works are ‘substantially similar.’” Herzog v. Castle

Rock Entm’t, 193 F.3d 1241, 1248 (11th Cir. 1999). The test for “substantial

similarity” is not at all technical. To the contrary, “substantial similarity” exists

where “an average lay observer would recognize the alleged copy as having been

appropriated from the copyrighted work.” Original Appalachian Artworks, Inc. v.

Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir. 1982) (emphasis added).

      Because a copyright owner holds the rights to only those portions of his or her

work that are original, the copyright owner must demonstrate “both [that] the

similarities between the works are substantial from the point of view of the lay

observer and [that] those similarities involve copyrightable material.” Oravec, 527

F.3d at 1224 (internal alteration omitted); see id. n.5. In other words, the “substantial

similarity” must exist at “the level of protected expression.” Id. at 1227.

      Whether two works are “substantially similar” at the level of protected

expression seems to me to be an inherently subjective and fact-bound inquiry. “At

the most narrow, focused level, two works will almost always be distinguishable,

and at the broadest level of abstraction they will almost always appear identical.”



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Baby Buddies, Inc. v. Toys R Us, Inc., 611 F.3d 1308, 1316 (11th Cir. 2010). As a

result, “[l]ists of similarities between the two works are inherently subjective and

unreliable, particularly where the list contains random similarities, and many such

similarities could be found in very dissimilar works.” Herzog, 193 F.3d at 1257

(internal quotation marks omitted).

      Indeed, long ago, Judge Learned Hand explained why the “substantially

similar” inquiry will nearly always be subjective and ad hoc:

             Upon any work . . . 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
             [copyrighted work] 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 [copyrighter] could prevent the use of his
             ideas, to which, apart from their expression, his property
             is never extended. Nobody has ever been able to fix that
             boundary, and nobody ever can.

Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930). Because

“substantial similarity is an extremely close question of fact” the determination of

which is by necessity subjective and ad hoc, “summary judgment has traditionally

been frowned upon in copyright litigation.” Latimer v. Roaring Toyz, Inc., 601 F.3d

1224, 1232 (11th Cir. 2010) (internal citation omitted); see also Peter Letterese and

Assocs., Inc. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1302 (11th Cir.

2008) (“Historically, courts have hesitated to make determinations as to



                                         28
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infringement or non-infringement on a summary judgment motion because of their

reluctance to make subjective determinations regarding the similarity between two

works.” (internal quotation marks and alteration omitted)).

      Nor is the question of whether “substantial similarity” exists at the level of

“protectable expression” a question unique to copyright actions involving

architectural works. Rather, it is one that we must answer in every copyright action,

regardless of whether the object of the copyright is a book, a piece of artwork, or an

architectural work.

      Books and movies, for example, often include non-copyrightable elements

such as scènes à faire—“sequences of events which necessarily follow from a

common theme,” or “[i]ncidents, characters, or settings that are indispensable or

standard in the treatment of a given topic.” Herzog, 193 F.3d at 1248. So in cases

involving those media, juries regularly must separate the unprotected elements from

those that are copyrighted before determining whether “substantial similarity” exists

between the original and the alleged copy.

      Cases involving “compilations”—“work[s] formed by the collection and

assembling of preexisting materials or of data that are selected, coordinated, or

arranged in such a way that the resulting work as a whole constitutes an original

work of authorship,” 17 U.S.C. § 101—likewise require the factfinder to determine

whether “substantial similarity” exists between the protectable elements of a



                                         29
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compilation and an alleged copy. We have had no problem finding juries capable of

distinguishing between protected elements and unprotected elements in these types

of cases. See, e.g., BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129 (11th

Cir. 2007).

      In Intervest, however, we departed from the rule of having juries decide the

inherently fact-bound issue of whether two works are “substantially similar” and

crafted a new rule for cases involving “architectural works.” 554 F.3d at 920-21.

Specifically, we held that judges are generally better able to conduct this inquiry at

summary judgment than jurors are at trial. Id. at 919-20.

      In arriving at this new rule, we first opined that the Copyright Act of 1976’s

definition of “architectural work” “closely parallels that of a ‘compilation’”; so, as

with compilations, “any similarity comparison of [architectural works] . . . must be

accomplished at the level of protected expression—that is, the arrangement and

coordination of” “common windows, doors, and other staple building components.”

Id. at 919. Based on this analogy, we cited the Supreme Court’s decision in Feist

Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349, 111 S. Ct.

1282, 1289 (1991), for the proposition that copyright protection in an architectural

work, like a compilation, is “thin.” Intervest, 554 F.3d at 919.

      Then we opined that judges, not jurors, are best equipped to conduct the

“substantial similarity” inquiry in cases involving architectural works. Id. at 920-



                                         30
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21. We reasoned,

             [A] judge is better able to separate original expression
             from the non-original elements of a work where the
             copying of the latter is not protectable and the copying of
             the former is protectable. The judge understands the
             concept of the idea/expression dichotomy and how it
             should be applied in the context of the works before him.
             As we have observed: “This distinction—known as the
             idea/expression dichotomy—can be difficult to apply, as
             there is no bright line separating the ideas conveyed by a
             work from the specific expression of those ideas.” Oravec
             [v. Sunny Isles Luxury Ventures, L.C., 527 F.3d [1218,
             1224 (11th Cir. 2008)].          Moreover, in examining
             compilations wherein only the arrangement and
             coordination of elements which by the nature of the work
             (here architectural floor plans) are sure to be common to
             each of the works and are not copyrightable themselves
             (special [sic] depictions of rooms, doors, windows, walls,
             etc.), the already difficult tasks may become even more
             nuanced. Because a judge will more readily understand
             that all copying is not infringement, particularly in the
             context of works that are compilations, the “substantial-
             similarity” test is more often correctly administered by a
             judge rather than a jury—even one provided proper
             instruction. The reason for this is plain—the ability to
             separate protectable expression from non-protectable
             expression is, in reality, a question of law or, at the very
             least, a mixed question of law and fact. It is difficult for a
             juror, even properly instructed, to conclude, after looking
             at two works, that there is no infringement where, say,
             90% of one is a copy of the other, but only 15% of the
             work is protectable expression that has not been copied.

Id.

      I think we lost our way in Intervest. While I agree with the majority that our

decision in Intervest compels us to affirm the district court’s decision in this case, I



                                          31
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believe the unique rule we crafted for architectural works is unmoored from

traditional copyright jurisprudence. I find no reason that survives scrutiny which

warrants treating the “substantially similar” inquiry in copyright cases involving

“architectural works” differently than the “substantially similar” inquiry in other

copyright cases.

      True, in Feist, the Supreme Court explained that the protection afforded

factual compilations is “thin” in the sense that the raw materials of a compiler’s

medium—namely, facts—are not themselves copyrightable. 499 U.S. at 349, 111

S. Ct. at 1289. But this is just another way of saying that the factfinder must consider

whether “substantial similarity” exists at the level of protectable expression—

original content—only, and the amount of protectable expression relative to total

content in a compilation is less than in a more original type of work. Whatever

protectable expression a compilation contains, however, remains subject to the same

copyright protection as the original content in all other types of copyrighted work.

See id. at 349, 111 S. Ct. at 1290 (“[C]opyright assures authors the right to their

original expression, but encourages others to build freely upon the ideas and

information conveyed by a work. . . . This principle, known as the idea/expression

or fact/expression dichotomy, applies to all works of authorship.”) (emphasis

added).

      Indeed, when Congress amended the Copyright Act to include “architectural



                                          32
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works” in 1990, it did so because it recognized that “[a]rchitecture is not unlike

poetry” and “concluded that the design of a work of architecture is [therefore] a

‘writing’ under the Constitution and fully deserves protection under the Copyright

Act.” H.R. Rep. No. 101–735 (1990), as reprinted in 1990 U.S.C.C.A.N. 6935,

6941. Put simply, the protectable elements of an “architectural work,” though they

may be fewer and therefore “thin” relative to other works, are nonetheless entitled

to the full protection of the Copyright Act.

        So the “thinness” or “thickness” of protected expression in a type of work

merely defines the frame of reference for the “substantial similarity” inquiry. See

Oravec, 527 F.3d at 1224 (explaining that the similarity inquiry targets the similarity

between the protectable expression of a copyrighted work and the expression in an

allegedly infringing work). But once we are looking at protectable expression, I see

no meaningful difference in the substance of the “substantially similar” inquiry

applicable to works entitled to “thick” protection, such as novels, and that inquiry

applicable to works entitled to “thin” protection, such as architectural works.

Regardless of the type of work at issue, a copyright plaintiff will always be required

to demonstrate substantial similarity “at the level of protected expression.” Id. at

1227.

        To the extent that Intervest suggests that the protectable expression in an

architectural plan is somehow subject to less protection than the protectable



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expression in any other kind of copyright-protected content, the Second Circuit aptly

summed up the problems with our approach in Intervest:

             Labeling architecture a compilation obscures the real
             issue. Every work of art will have some standard
             elements, which taken in isolation are un-copyrightable,
             but many works will have original elements—or original
             arrangements of elements. The challenge in adjudicating
             copyright cases is not to determine whether a work is a
             creative work, a derivative work, or a compilation, but to
             determine what in it originated with the author and what
             did not. Intervest fails to do this. . . .

             Courts should treat architectural copyrights no differently
             than other copyrights. This is what Congress envisioned .
             ...

Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 104 (2d Cir. 2014).

      But the most troubling aspect of our decision in Intervest is our conclusion

that judges are more able to conduct the inherently factual and subjective

“substantially similar” inquiry in architectural-works cases than jurors. Intervest,

554 F.3d at 920-21. I respectfully disagree with this determination.

      The Seventh Amendment guarantees parties like Turner a jury trial. While

the Copyright Act does not explicitly provide copyright plaintiffs a right to a jury

trial, it does permit plaintiffs to recover either actual or statutory damages for

violations of the Act. 17 U.S.C. § 504. And when a plaintiff seeks to recover either

actual or statutory damages under the Act, the Seventh Amendment guarantees that

plaintiff a right to a jury trial. Feltner v. Columbia Pictures Television, Inc., 523



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U.S. 340, 355, 118 S. Ct. 1279, 1288 (1998); see id. at 346, 118 S. Ct. at 1284.

      The Seventh Amendment, in turn, requires, where it applies, “that enjoyment

of the right of trial by jury be not obstructed, and that the ultimate determination of

issues of fact by the jury be not interfered with.” In re Peterson, 253 U.S. 300, 310,

40 S. Ct. 543, 546 (1920). Of course, it has long been recognized “that when the

evidence given at the trial, with all inferences that the jury could justifiably draw

from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if

returned, must be set aside, the court is not bound to submit the case to the jury, but

may direct a verdict for the defendant” without violating the Seventh Amendment.

Randall v. Baltimore & O.R. Co., 109 U.S. 478, 481, 3 S. Ct. 322, 324 (1883); see

also Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S. Ct. 580, 585 (1899)

(“‘Trial by jury,’ in the primary and usual sense of the term at the common law and

in the American constitutions, . . . is a trial by a jury of 12 men in the presence and

under the superintendence of a judge empowered to instruct them on the law and to

advise them on the facts, and . . . to set aside their verdict, if, in his opinion, it is

against the law or the evidence.”).

       But we do not remove factual determinations from a jury simply because the

factual inquiry is “nuanced” or “difficult.” Cf. Intervest, 554 F.3d at 920. Instead,

we issue specific instructions to educate the jury on the nature of its inquiry and

presume that the jury follows those instructions. Fed. R. Civ. P. 51; Jamerson v.



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Sec’y for Dep’t of Corr., 410 F.3d 682, 690 (11th Cir. 2005) (“[W]e presume that

juries follow instructions . . . .”). And, where necessary, we ask the jury to return

special verdicts breaking out each factual determination the jury must make to guide

the jury in its task. Fed. R. Civ. P. 49. Parties also may present expert testimony to

assist the jury in its evaluation of the evidence. See Fed. R. Evid. 702.

      In fact, we routinely entrust juries with highly technical and complex factual

inquiries, including, for instance, issues such as whether one party infringed

another’s software patent, see Telecom Tech. Servs., Inc. v. Rolm Co., 388 F.3d 820

(11th Cir. 2004); whether a party possesses monopoly power in a relevant market or

has sufficient economic power to coerce another into buying a tied product in

Sherman Antitrust Act cases, see Tech. Res. Servs., Inc. v. Dornier Med. Sys., Inc.,

134 F.3d 1458, 1465-66 (11th Cir. 1998); and whether a party has established loss

causation in a § 10(b) case under the Securities and Exchange Act of 1934, see

Rousseff v. E.F. Hutton Co., 843 F.2d 1326, 1329 (11th Cir. 1988).

      And we ask juries to make significantly weightier factual determinations than

whether two works are “substantially similar,” including, for instance, a criminal

defendant’s liability. Indeed, the Sixth Amendment demands that juries, not judges,

make the weightiest of all factual determinations: whether capital punishment is

warranted. Ring v. Arizona, 536 U.S. 584, 589, 122 S. Ct. 2428, 2432 (2002).

      In short, when factual determinations are “nuanced” or “difficult,” we educate



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juries and provide them with the tools necessary to do the job. We do not take the

issues away from the jury and defer to judges. I am aware of no case law that stands

for the proposition that we may more readily remove factual determinations from

the jury’s purview when those determinations are, in the view of the judge,

“difficult.”

       But even if such precedent existed, I would not see the sense in generally

removing the issue of “substantial similarity” from the jury in any kind of copyright

case, including those involving architectural works. The standard for whether two

works are “substantially similar” is whether “an average lay observer would

recognize the alleged copy as having been appropriated from the copyrighted work.”

Original Appalachian Artworks, Inc., 684 F.2d at 829 (emphasis added).

       It is not clear to me why judges would be “better able to separate original

expression from the non-original elements of a work where the copying of the latter

is not protectable and the copying of the former is protectable.” Intervest, 554 F.3d

at 920. I think it unlikely that many judges have architectural or even design

experience.     So we have no more practical, real-world understanding of the

significance of particular design elements necessary to make a determination about

whether a given architectural work is substantially similar to another at the level of

protected expression than does a jury.

       That is not to say that we cannot make informed decisions regarding these



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issues, upon reviewing appropriate evidence and applying the correct standard. Of

course we can. But so can juries. Indeed, the very nature of the standard—“average

lay observer”—suggests as much.1

       I likewise respectfully disagree with any notion that judges have a special

grasp on “the concept of the idea/expression dichotomy and how it should be applied

in the context of the works before [them].” Id. No degree of mastery of the “concept

of the idea/expression dichotomy” renders a judge better able to determine whether

an average lay observer would recognize an alleged copy as having been

appropriated from a copyrighted work.

       Here, had we applied the same rules of copyright law that we use in cases

involving copyrights on other types of works, the Rule 50 motion would have been

properly denied because a material issue of fact existed. Specifically, an average lay

observer could have concluded that the Turner plans are substantially similar to

HDS-2089, evidencing unlawful copying.

       Even a cursory glance at the blueprints reveals that, as HDS’s CEO testified

at trial, the Turner plans are “virtually line for line” copies of HDS-2089. See App.

This fact led HDS’s expert witness 2 to testify that “the overall organization of traffic


       1
          Ironically, it seems more likely that at least some members of a jury would have
architectural or design experience or training of some type and therefore actually have a practical
understanding of the significance of various protectable design elements in an architectural work.
       2
        HDS relied on the expert-witness testimony of Kevin Samuel Alter, Associate Dean for
Graduate Programs and Professor of Architecture at the University of Texas at Austin.


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patterns for the home[s]” appears to be identical. HDS’s expert further testified that

“the overall shape, the massing, the individual layout of the rooms is the same. They

all have the same shape, width, and length. They have essentially the same massing

. . . . They have the same organization . . . .” In other words, the selection and

arrangement of common building elements in the Turner plans, in general, is nearly

identical to the selection and arrangement in HDS-2089.

      And beyond that, HDS’s expert also noted that the plans contain certain odd

features that are hard to explain if Turner did not unlawfully copy from HDS-2089.

For example, one of the bathroom walls in both HDS-2089 and the Laurent plan is

slightly thicker than the surrounding walls. This feature has a practical purpose in

HDS-2089, but it makes no sense in the Laurent plan: in the HDS-2089, the thicker

wall provides a way to accommodate the plumbing for a bath tub, but in the Laurent

plan, the tub is turned, so the plumbing for the tub necessarily would not run through

the thicker wall.

      True, as the Majority points out, the plans have differences. The Majority

notes, among others, that the door to the laundry room in the garage swings inwards

in HDS-2089 and outwards in the Turner plans, and the plans’ respective secondary

bathrooms feature different countertops. See id. In Intervest, we held that similar

sorts of differences as those identified by the Majority would have precluded a




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reasonable jury from finding “substantial similarity.” See 554 F.3d at 916-17.

Respectfully, I disagree.

       Instead, I would hold that “an average lay observer” could find these

differences between the HDS-2089 and Turner plans to be immaterial in light of the

plans’ otherwise “substantial similarity” at the level of protected expression. Indeed,

the first trial judge denied Turner’s summary-judgment motion because the judge

concluded that “there are . . . myriad similarities in areas of protectable expression,”

so a reasonable jury could find the works “to be substantially or even strikingly

similar.” And, after a five-day jury trial, a jury of average lay observers did just that,

concluding that all 165 of the Laurent and Dakota houses at issue are “substantially

similar” to HDS-2089. To second guess the jury at this stage based on nothing more

than a list of modest dissimilarities—the very sort of list that we have already

rejected as “inherently subjective and unreliable,” Herzog v. Castle Rock

Entertainment, 193 F.3d 1241, 1257 (11th Cir. 1999)—seems to me to unjustifiably

usurp the role of the jury in copyright cases and deny owners of architectural work

copyrights the full protection of the Copyright Act.

       So while I agree with the majority that our decision in Intervest dictates that

we uphold the district court’s decision granting Appellee’s Rule 50 motion, I think

it time to revisit Intervest.




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TJOFLAT, Circuit Judge, Concurring:

       I join the panel’s opinion in full. I write separately to address the

purportedly untenable infirmities of Intervest Construction, Inc. v. Canterbury

Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008)—which I agree compels our

decision today—that Judge Rosenbaum identifies. Specifically, I deny that our

decision in Intervest either requires or suggests an impermissibly broad role for

judges at the expense of the jury right secured by the Seventh Amendment 1 in

cases alleging copyright infringement of architectural works.

       As an initial matter, Intervest in no way “holds that judges are necessarily

better able than juries to resolve whether the ‘average lay observer’ would find

‘substantial similarity’ between two architectural works.” Ante at 1 (Rosenbaum,

J., concurring) (emphasis added); cf. Edwards v. Prime, Inc., 602 F.3d 1276, 1298

(11th Cir. 2010) (“We have pointed out many times that regardless of what a court

says in its opinion, the decision can hold nothing beyond the facts of that case. . . .

And dicta is not binding on anyone for any purpose.” (citations omitted)). What

Intervest suggests (and rightfully so), however, is that claims of copyright

infringement are “often more reliably and accurately resolved in a summary




       1
         The Seventh Amendment to the United States Constitution provides, “In Suits at
common law, where the value in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of
the United States, than according to the rules of the common law.” U.S. Const. amend. VII.


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judgment proceeding” when the “crucial question” requires assessing “substantial

similarity at the level of protectable expression” over types of works warranting

only “‘thin’” protection, like architectural works. See 554 F.3d at 919 (quoting

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349, 111 S. Ct. 1282,

1289, 113 L. Ed. 2d 358 (1991)). Far from warranting reconsideration from this

Court sitting en banc, that notion is both commonsensical and utterly

unremarkable. Nothing in Intervest strips from juries their historically and

constitutionally critical responsibility to make factual determinations. Rather,

Intervest simply recognizes that when there are more legal determinations to be

made relative to factual ones, judges will have relatively more to do. The role to

be played by judges—who are, of course, responsible for delineating these legal

boundaries—will necessarily be greater at summary judgment in cases in which the

scope of the protectable expression is “thin” because “the ability to separate

protectable expression from non-protectable expression is, in reality, a question of

law or, at the very least, a mixed question of law and fact.” Id. at 920. And this is

especially so when, as is often true of these types of cases, the scope of the legally

protectable expression at issue may be less than crystal clear.

      In my view, there is no reason to revisit our holding in Intervest because

Intervest was, and remains, correctly decided.




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                          APPENDIX




 HDS-2089




The Laurent




                               43
