           Case: 15-14965   Date Filed: 07/26/2016   Page: 1 of 9


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14965
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:14-cv-00531-HLA-MCR


ARTHUR RUTENBERG HOMES, INC., et al.,

                                                         Plaintiffs-Appellants,

                                  versus


JEWEL HOMES, LLC, et al.,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (July 26, 2016)

Before JORDAN, JULIE CARNES and ANDERSON, Circuit Judges.

PER CURIAM:
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       Plaintiffs-Appellants Arthur Rutenberg Homes, Inc. (“Rutenberg”) and

Marcus Allen Homes, Inc. (“Marcus Allen”) appeal from the district court’s grant

of summary judgment to Defendants-Appellees Jewel Homes, LLC (“Jewel”),

Julie D. Irvin (“Irvin”), Mary C. Lesher, and Michael B. Lesher, in their federal

copyright infringement suit brought pursuant to 17 U.S.C. § 501. Appellants’

complaint alleged in relevant part that Appellees infringed Rutenberg’s federally

copyrighted “Amalfi Model” architectural plan and work by preparing an

architectural plan (“the Lesher Plan”) to build a home that is substantially similar

to the copyrighted Amalfi plan and work. The district court granted summary

judgment to Appellees on the basis that the differences between the two designs

are so significant that no reasonable, properly instructed jury could find the works

substantially similar. On appeal, Appellants argue that the existence of genuine

issues of material fact as to substantial similarity precludes summary judgment. 1


       1
          Plaintiffs-Appellants also argue that the grant of summary judgment deprived Plaintiffs
of their right to trial by jury under the Seventh Amendment to the United States Constitution. To
the extent that this claim represents more than a reiteration of their primary merits argument that
the existence of genuine questions of material fact should have precluded summary judgment, it
is without merit. 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 (1883). See also Home Design
Servs., Inc. v. Turner Heritage Homes Inc., No. 15-11912, 2016 WL 3361479, at *9 (11th Cir.
June 17, 2016) (“We have repeatedly sanctioned summary judgment determinations that one
architectural work does not infringe on another as a matter of law. . . This practice should be
unremarkable to all: 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
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       This Court reviews a district court’s ruling on a motion for summary

judgment de novo, construing all evidence in the light most favorable to the non-

moving party. Leigh v. Warner Bros., Inc., 212 F.3d 1210 (11th Cir. 2000).

Summary judgment is appropriate when the pleadings, depositions, and affidavits

submitted by the parties show no genuine issue of material fact exists and that the

movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

       This Court recently addressed the law governing copyright infringement of

architectural plans in Home Design Services, Inc. v. Turner Heritage Homes Inc.,

No. 15-11912, 2016 WL 3361479 (11th Cir. June 17, 2016). This case, which

follows closely from our earlier precedent in Intervest Construction, Inc. v.

Canterbury Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008), controls the

outcome in the instant case.

       As we explained in Home Design Services, copyright infringement has two

elements: “(1) ownership of a valid copyright, and (2) copying of [protectable]

elements.” Miller’s Ale House, Inc. v. Boynton 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




of law.”) (citing Miller’s Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312,
1326 (11th Cir. 2012); Intervest Const., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914,
920–21 (11th Cir. 2008); Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1223
(11th Cir. 2008); Beal v. Paramount Pictures Corp., 20 F.3d 454, 459–60 (11th Cir. 1994)).
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element can be proven either with direct proof of copying 2 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). However, “[n]o matter how copying is proved, the plaintiff must

also establish specifically that the alleged infringing work is substantially similar to

the plaintiff’s work.” Leigh, 212 F.3d at 1214. “Even in the rare case of a plaintiff

with direct evidence that the defendant attempted to appropriate his original

expression, there is no infringement unless the defendant succeeded to a

meaningful degree.” Id. In the instant case, it is undisputed that Rutenberg owns a

valid copyright to the Amalfi architectural plan and works.3 It is also undisputed

that Defendants had access to the copyrighted work. Therefore, Appellants will


       2
          Rutenberg, relying on Harvester, Inc. v. Rule Joy Trammell + Rubio, LLC, 716
F.Supp.2d 428 (E.D. Va. 2010), and Enterprise Management Limited, Inc. v. Warrick, 717 F.3d
1112 (10th Cir. 2013), argues that there is undisputed direct evidence of copying as demonstrated
by the Defendant’s stipulation that the Leshers made redline modifications to a printout of the
Amalfi plan downloaded from Rutenberg’s publically accessible website, scanned the modified
document to a PDF, and then provided that PDF to the draftsman to prepare the Lesher plans.
However, Harvester and Warrick, not binding on this court in any circumstance, are clearly
distinguishable. In Warrick, defendant admitted that he had copied plaintiff’s work and merely
argued that plaintiff had no enforceable copyright. That decision accordingly, does not reach the
question of what constitutes direct evidence of copying. Warrick, 717 F.3d at 1120. Here, in
contrast, Defendants deny any copying. In Harvester, the defendant made a PDF copy of the
original copyrighted work. See Harvester, 716 F. Supp. 2d at 446. In the instant case, the
Defendants modified the plan before making any PDF scans. In any case, even if there were
evidence that the Leshers attempted to copy the Amalfi plan, “there is no infringement unless the
defendant succeeded to a meaningful degree.” Leigh, 212 F.3d at 1214. Therefore we would still
need to perform the same substantial similarity analysis performed below.
       3
         Rutenberg received a Certificate of Registration for the work entitled “Amalfi Floor
Plan & Elevation B” as a Technical Drawing, Registration Number VA 1-830-728 and as an
Architectural Work, Registration Number VA 1-830-721.
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prevail on appeal if they can show that a “reasonable jury could find [the Amalfi

Plan and the Lesher Plan] substantially similar at the level of protected

expression.” Home Design Servs., 2016 WL 3361479, at *4 (quoting Miller’s Ale

House, 702 F.3d at 1325).

      “[F]loor plans, like any work, receive copyright protection only to the extent

that they qualify as ‘original works of authorship.’” Id. (quoting 17 U.S.C. §

102(a)). “[L]ike 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.’” Id. (quoting Oravec, 527 F.3d at 1224). “[M]ore concretely, the Copyright

Act restricts which elements of architectural floor plans are protectable through its

definition of a copyrightable ‘architectural work.’” Id. at *5. “17 U.S.C. § 101

defines an ‘architectural work’ as ‘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.

      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). We noted that the substantial similarity inquiry is

“narrowed” when dealing with a compilation. Id. at 919. “[W]hen viewed through

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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. We identified the potentially protectable

elements of an architectural work as “the arrangement and coordination of those

common elements (‘selected’ by the market place, i.e., rooms, windows, doors, and

‘other staple building components’).” Id.

      Our recent Home Design Services decision described the application of the

narrowed substantial similarity test to the facts of the Intervest case:

             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.” [554 F.3d] 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 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.

Home Design Servs., 2016 WL 3361479, at *5. We then described Intervest as

holding “that there was no copyright infringement because the floor plans at issue

were similar only with respect to their noncopyrightable elements.” Id. at *7. We

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explained that “[a]lthough the Intervest floor plans shared the same overall layout,

the layout was not copyrightable in that case.” Id. Instead, “[b]ecause 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.” Id.

      Turning to the facts in the Home Design Services case, we observed that

both plans depicted 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.” Id. at *1. We then observed that “[t]he plans . . . share in

common the same set of rooms, arranged in the same overall layout.” Id. We

further observed that “[t]he plans also share the presence, location, and function of

many (but not all) walls, entryways, windows, and fixtures.” Id. Nonetheless, we

concluded that there was no infringement:

             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
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               industry standards that architects regularly heed to
               achieve such a split.

Id. at *8. The differences described by the district court in the instant case are

comparable to those described in Home Design Services and Intervest. In other

words, the shared or similar elements between the two plans were non-protectable

elements. By contrast, the potentially protectable elements were dissimilar:

               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.

Id. at *8-9.

       In the instant case, as in Home Design Services and Intervest, the district

began by noting similarities between the Amalfi plan and the Lesher Plan. The

court observed that “[t]he floor plan of the Amalfi and the Lesher Plan are visually

similar in some respects and the general layout is the same.” Dk. 57 at 9. “Both

floor plans are for a four-bedroom, four-bath, single-story split-plan home. . . . In

both floor plans, the garage, utility room, three bed rooms and the bonus room are

lined up on the right side, the master bathroom and bedroom are on the left side,

with the kitchen, dining room, den and great room separating the bedroom areas

situated on opposite sides of the floor plans.” Dk. 57 at 9. In other words, as in

Home Design Services and Intervest, the shared or similar elements between the

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two plans are non-protectable elements. The district court then examined the

numerous differences between the two plans. See Dk. 57 at 10-12. As in Home

Design Services and Intervest, these differences are differences in dimensions, wall

placement, and the presence, arrangement, and function of particular features

around the house. The differences described by the district court in the instant case

are comparable to those described in Home Design Services and Intervest. In other

words, the potentially protectable elements of the two designs are different, not

similar. Accordingly, at the level of protectable elements, there is no genuine

question of material fact that an average lay observer would recognize the Lesher

Plan as having been appropriated from the Amalfi.

      In light of our precedent in Home Design Services and Intervest, and based

on our careful review of the briefs and the record, we agree with the district court.

Appellants have not shown that there is a genuine question of fact as to substantial

similarity. The district court’s grant of summary judgment to Defendants-

Appellees is affirmed.

      AFFIRMED.




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