               Case: 15-11912       Date Filed: 06/17/2016      Page: 1 of 44


                                                                                 [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.




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      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

“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 in Different ceiling heights; windows in


                                              4
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   Bedrooms          rearmost secondary bedroom have         rearmost secondary bedroom have
                        different sizes and locations           different sizes and locations
      Nook           Symmetrical angled walls with one      Asymmetrical angled walls with two
                            window and a soffit                           windows
    Kitchen            Smaller than Laurent; no desk;         Larger than HDS-2089; built-in
                      dishwasher in different location          desk; dishwasher in different
                                                                           location
Master Bathroom        Water closet orientation creates        Water closet orientation creates
                          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

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.”



       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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       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.”

       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

       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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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

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.



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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

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; Fireplace      Traditional French doors; formal
                      not located to accommodate a flat-         windows; Fireplace located to
                               screen television             accommodate a flat-screen television
Back Porch/Patio       Patio; backdoor to patio swings          Porch; backdoor swings inward
                                    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 Bathroom       Opening to master bedroom; water           Door to master bedroom; water
                      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 inward           Door to laundry room swings
                                                                             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

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


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   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 wall
                  separating living room and family       separating living room and family
                                 room                                     room

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

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      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 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.




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               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.

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



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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]

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.

       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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      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

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



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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

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



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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.

      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

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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

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

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       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.

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
       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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       exact placement and sizes of doors, closets, and countertops often
       differ as do the arrangements of rooms.

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


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

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
              Case: 15-11912    Date Filed: 06/17/2016   Page: 27 of 44


that are original to the author.” Feist 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,



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

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,



                                        28
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1302 (11th Cir. 2008) (“Historically, courts have hesitated to make determinations

as to 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



                                         29
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whether “substantial similarity” exists between the protectable elements of a

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



                                          30
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“substantial similarity” inquiry in cases involving architectural works. Id. at 920-

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

                                        31
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decision in Intervest compels us to affirm the district court’s decision in this case, I

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).



                                          32
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      Indeed, when Congress amended the Copyright Act to include “architectural

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



                                          33
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architectural plan is somehow subject to less protection than the protectable

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



                                        34
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guarantees that plaintiff a right to a jury trial. Feltner v. Columbia Pictures

Television, Inc., 523 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,



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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.

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



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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 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



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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

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.

       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.



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       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 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

       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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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 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



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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

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

       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.
             Case: 15-11912     Date Filed: 06/17/2016    Page: 43 of 44


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




                               44
