     Case: 13-20464         Document: 00512879407          Page: 1     Date Filed: 12/22/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                        Fifth Circuit

                                                                                          FILED
                                                                                  December 22, 2014
                                         No. 13-20464
                                                                                     Lyle W. Cayce
                                                                                          Clerk
HEWLETT CUSTOM HOME DESIGN, INCORPORATED,

                                                     Plaintiff - Appellee

v.

FRONTIER CUSTOM BUILDERS, INCORPORATED; RONALD W. BOPP,

                                                     Defendants - Appellants


                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 4:10-CV-4837


Before JOLLY and JONES, Circuit Judges, and AFRICK *, District Judge.
PER CURIAM: ∗∗
       In this copyright infringement action, Hewlett Custom Home Design
(“Hewlett”) won a jury verdict against competitor Frontier Custom Builders
and its owner Ronald Wayne Bopp (collectively “Frontier”).                         On appeal,
Frontier does not challenge two elements of the cause of action: Appellee’s
ownership of a valid copyright, or the substantial similarity of its home designs
to the copyrighted plans.              See Armour v. Knowles, 512 F.3d 147, 152



       *   District Judge of the Eastern District of Louisiana, sitting by designation.

       ∗∗
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 13-20464
(5th Cir. 2007) (per curiam).            Frontier rests its evidentiary sufficiency
challenge on the third element, that of factual copying, which may be proved
circumstantially by showing that the plans contain probative similarities and
that the defendant had access to the copyrighted plans. 1 Id; see also Ferguson
v. Nat’l Broad Co., 584 F.2d 111, 113 (5th Cir. 1978). Frontier also contends
that the judgment should be reversed or a new trial ordered because of the
jury’s failure to apportion damages between Frontier’s misappropriation of the
plans and other potential sources of its profit (e.g., location, attractive school
zoning, special upgrades or amenities) on the infringing homes. Having heard
oral argument in this appeal, examined the authorities cited by the parties,
and reviewed pertinent portions of the record, we reject these challenges
essentially for the reasons stated by the district court in its order on post-trial
motions.
       First, as the district court held, there was sufficient proof of Frontier’s
access to the plans, i.e., “‘a reasonable opportunity to view the copyrighted
work[,]’” which is this court’s standard. Armour, 512 F.3d at 152-53 (quoting
Peel & Co. v. The Rug Market, 238 F.3d 391, 394 (5th Cir. 2001)).                       The
competitors were both building homes within a mile of each other when a house
using Hewlett’s Plan 4210 was constructed and marketed in that area, and its
plans were available in the subdivision marketing office. The house built
according to Plan 4187 was a Woodlands Showcase Home for the year 2000
and therefore open to thousands of visitors. Bopp testified to his prior visits to




       1 A copyright owner can also prove factual copying by demonstrating that the works
are “strikingly similar.” Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357,
372 (5th Cir. 2004), abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154 n.10, 130 S. Ct. 1237 n.10 (2010). The district court also found sufficient
evidence of striking similarity; we do not reach this question since we find Hewlett has
satisfied the access test.

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                                 No. 13-20464
the Showcase homes. The jury was entitled to credit this and other evidence
showing that Frontier had a reasonable opportunity to access the plans, while
it could discredit Bopp’s self-serving denials.      United States v. Richards,
204 F.3d 177, 209 (5th Cir. 2000), overruled on other grounds by United States
v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002).
      Second, with regard to the apportionment of damages, after Hewlett
proved Frontier’s gross revenue, Frontier had the burden “to prove [its]
deductible expenses and the elements of profit attributable to factors other
than the copyrighted work.” 17 U.S.C. § 504(b). This provision “creates an
initial presumption” that the infringer’s entire gross revenue is attributable to
the misappropriation. MGE UPS Sys., Inc. v. GE Consumer & Indus., Inc.,
622 F.3d 361, 367 (5th Cir. 2010) (citing Bonner v. Dawson, 404 F.3d 290, 294
(4th Cir. 2005)). Contrary to this established law, Frontier asserts that the
trial court was required to apportion profit, and therefore reduce damages,
based only on Frontier’s mere generalized testimony that certain factors other
than the plans affect a builder’s profit. Alternatively, Frontier advocates a new
trial on damages based on the contention that the jury’s failure to deduct
anything from its gross profit was against the great weight of the evidence.
      We agree with the district court, which correctly articulated the law and
did not abuse its discretion in denying a new trial. The court noted the absolute
absence of evidence as to “what proportion of each infringing home’s profit was
attributable to those factors other than the infringing design.” There was no
evidence of similar profits made by Frontier on homes with non-infringing
designs, nor was there evidence of the value attributable to neighborhood
schools, a high quality school district, the particular attractiveness of the
subdivisions involved, or non-infringing design features or amenities in the
infringing homes. There was no testimony from purchasers of the infringing
homes on the factors influencing the sales prices, nor from a real estate
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                                 No. 13-20464
appraiser or broker concerning the non-infringing features that enhanced the
homes’ profitability. See Estate of Vane v. The Fair, Inc., 849 F.2d 186, 188-89
(5th Cir. 1988). In sum, there was no probative evidence that would have
allowed the jury, had it credited Frontier’s generalized arguments, to reduce
the amount of gross profit attributable to the infringement.
      Accordingly, the judgment is AFFIRMED.




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