Case 1:13-cv-02049-WJM-MEH Document 48 Filed 02/27/15 USDC Colorado Page 1 of 23
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Judge William J. Martínez
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`Civil Action No. 13-cv-2049-WJM-MEH
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`SAVANT HOMES, INC.,
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`Plaintiff,
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`v.
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`DOUGLAS W. COLLINS,
`DOUGLAS CONSULTING, LLC, d/b/a COLLINS CUSTOM BUILDERS,
`STEWART KING, d/b/a KODIAK CUSTOM DESIGN,
`TAMMIE WAGNER, and
`RON WAGNER,
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`Defendants.
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`ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
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`Plaintiff Savant Homes, Inc. brings this action against Douglas Collins, Douglas
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`Consulting, LLC, d/b/a Collins Custom Builders (together “Collins”), Stewart King, d/b/a
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`Kodiak Custom Design, and Tammie and Ron Wagner (collectively “Defendants”)
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`arising out of the construction of two single-family homes in Larimer County, Colorado.
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`(Compl. (ECF No. 1).) Before the Court are Motions for Summary Judgment filed by
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`Collins and the Wagners (“Motions”). (ECF Nos. 37 & 38.) For the reasons set forth
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`below, the Motions are granted.
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`I. LEGAL STANDARD
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`Summary judgment is appropriate only if there is no genuine issue of material
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`fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
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`56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
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`Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute --
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`as to a material fact depends upon whether the evidence presents a sufficient
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`disagreement to require submission to a jury or conversely, is so one-sided that one
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`party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
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`(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
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`Serv., 812 F.2d 621, 623 (10th Cir. 1987).
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`A fact is “material” if it pertains to an element of a claim or defense; a factual
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`dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
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`reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. The
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`Court must resolve factual ambiguities against the moving party, thus favoring the right
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`to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
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`II. FACTUAL BACKGROUND
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`Plaintiff Savant Homes, Inc. is a custom home designer and builder, which holds
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`copyrights to architectural plans VA 1-833-039, entitled Anders Series Plans, and VA 1-
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`862-641, entitled Anders Series Plan - Constructed Design (together, the “Anders
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`Plan”). (ECF No. 1 at 2-3; ECF Nos. 37-13 & 37-14.) Plaintiff has designed and built
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`numerous homes based on the Anders Plan, including a model home at 8646
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`Blackwood Drive in Windsor, Colorado. (ECF No. 37-12.) Among other features, the
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`Anders Plan is a three-bedroom, two-bath ranch home that includes a master suite
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`(bedroom, bathroom, and walk-in closet) that is separated from two guest bedrooms by
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`the common living area, with a gourmet kitchen that is open to the dining room and a
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`great room. (ECF No. 40-10 at 8.) The laundry room is directly adjacent to the master
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`suite, and leads directly to a three-car garage, which has its doors at 90 degrees to the
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`street. (Id.)
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`In 2009, Ron and Tami Wagner (the “Wagners”) purchased land at 300 Madera
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`Way in Windsor, Colorado on which they planned to build a new custom home.
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`(Wagner Dep. (ECF Nos. 37-1 & 39-1) p. 12.) The Wagners contracted with Collins to
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`build the home at 300 Madera Way, and Collins in turn contracted with King to design
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`the home. (ECF No. 38-2; King Dep. (ECF No. 38-3) pp. 48-49.)
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`In June 2009, the Wagners visited Plaintiff’s model home at 8646 Blackwood
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`Drive with their realtor. (Wagner Dep. at 18-20.) Mrs. Wagner took with her one of
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`Plaintiff’s brochures, which included a simplified version of the model home’s floor plan
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`that is based on the Anders Plan. (Id.; ECF No. 37-18 & 37-19.) Two months later, the
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`Wagners returned with their realtor to again tour the model home; King and Collins
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`accompanied them on this visit. (Id. at 17-18; Collins Dep. (ECF No. 37-8) p. 63; ECF
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`No. 37-12.)
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`Construction began on the 300 Madera Way home in October 2009, and was
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`completed in May 2010. (Wagner Dep. at 30.) Due to a change in their relationship,
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`the Wagners later purchased land at 8466 Blackwood Drive, and contracted with Collins
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`and King to design and build a second home on this lot. (Id. at 37-39.) Construction on
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`the 8466 Blackwood home began in October 2011, and was completed in October
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`2012. (Id.) The Court will refer to the 300 Madera Way home and the 8466 Blackwood
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`Drive home as the “Accused Homes”.
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`Among other features, the Accused Homes are both three-bedroom, two-bath
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`homes with a master suite (bedroom, bathroom, walk-in closet) that is separated from
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`two guest bedrooms by the common living area, which includes a gourmet kitchen that
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`is open to the dining room and a great room. (ECF No. 38-3.) The laundry room in the
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`Accused Homes can be accessed directly from the master suite, and leads into a three-
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`car garage that has its doors at a 90 degree angle to the street. (Id.)
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`At least one consumer has entered Plaintiff’s model home and been confused as
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`to whether it was built by the same party as the Wagners’ home at 8466 Blackwood
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`Drive. (Strope Dep. (ECF No. 40-9) p. 82.) A realtor has also inquired as to whether
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`Plaintiff built the 8466 Blackwood home. (Id. at 15.)
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`III. ANALYSIS
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`On the facts set forth above, Plaintiff brings claims against all Defendants for
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`copyright infringement, contributory infringement, trade dress, intentional interference
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`with business advantage, civil theft, deceptive trade practices, and civil conspiracy.
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`(Compl. pp. 5-10.) Plaintiff seeks a declaratory judgment enjoining Defendants from
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`further use of its copyrighted work, as well as monetary damages. (Id. pp. 9-10.)
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`Defendants move for summary judgment on all claims. (ECF Nos. 37 & 38.) The Court
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`will discuss each in turn below.
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`A.
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`Copyright Infringement
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`Copyright protection extends to “original works of authorship fixed in any tangible
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`medium of expression . . . .” Copyright Act, 17 U.S.C. §§ 101-122 (2011). The
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`Copyright Act was amended in 1990 to include the Architectural Works Copyright
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`Protection Act (“AWCPA”), which extends protection to any “architectural work,” defined
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`as “the design of a building as embodied in any tangible medium of expression,
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`including a building, architectural plans, or drawings.” 17 U.S.C. § 101; 17 U.S.C.
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`§ 102(a)(8). An “architectural work” includes “the overall form as well as the
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`arrangement and composition of spaces and elements in the design, but does not
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`include individual standard features.” 17 U.S.C. § 101.
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`Plaintiff alleges that the Accused Homes infringe on its copyrighted Anders Plan.
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`(Compl. p. 5.) “There are two elements to a copyright infringement claim: (1)
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`ownership of a valid copyright, and (2) copying of constituent elements of the work that
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`are original.” La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir.
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`2009). Plaintiff bears the burden of proof on both elements. Palladium Music, Inc. v.
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`EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005).
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`The record shows that Plaintiff’s Anders Series Plan was registered with the
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`United States Copyright Office on June 4, 2012, with a listing date of first publication on
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`May 31, 2007. (ECF No. 37-13.) By presenting a registration certificate, a party
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`establishes the prima facie validity of the copyright, and the burden to dispute the
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`validity of the copyright then shifts to the party challenging it. Harris Mkt. Res. v.
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`Marshall Marketing & Comm’ns, Inc., 948 F.2d 1518, 1526 (10th Cir. 1991).
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`Defendants do not seriously challenge the validity of this copyright, and the Court finds
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`that Plaintiff has satisfied the first element of its copyright infringement claim.
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`“A plaintiff can establish that the defendant copied his program either through the
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`presentation of direct evidence, or through indirect evidence that shows (1) that the
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`defendant had access to the copyrighted program, and (2) that there are probative
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`similarities between the copyrighted material and the allegedly copied material.” Gates
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`Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 832 (10th Cir. 1993). Because
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`direct proof of copying is rare, plaintiffs typically rely on the indirect method of proof. Id.
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`Plaintiff here asserts indirect evidence of copying, alleging that Defendants had
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`access to its Anders Plan, and that the Accused Homes are substantially similar to the
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`copyrighted portions of the Anders Plan. (ECF Nos. 39 & 40.) Defendants contend that
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`Plaintiff has presented insufficient evidence of a material dispute as to both prongs.
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`(ECF Nos. 37 & 38.)
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`1.
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`Access to Copyrighted Work
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`To demonstrate access, a plaintiff must show that the defendants had a
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`reasonable opportunity to view or to copy his work. A mere possibility, speculation or
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`conjecture about access does not satisfy this standard. See 3 Nimmer on Copyright
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`Sec. 13.02[A] at 13–18–24.
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`To meet this burden, Plaintiff has introduced evidence showing that the Wagners
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`visited a model home based on the Anders Plan in June 2009. (Wagner Dep. at 24.)
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`Ms. Wagner picked up a copy of Plaintiff’s brochure, and retained it. (Id. at 40.) On
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`August 9, 2009, Ms. Wagner again toured the model home, and this time brought Mr.
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`Collins and Mr. King with her. (Wager Dep. at 24.) Within a week of this visit, Mr. King
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`had finalized plans for the 300 Madera home. (King Dep. at 55.) In addition to these
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`visits, Plaintiff notes that Defendants had access to a simplified version of its Anders
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`Plan through online marketing tools. (ECF No. 37 at 6.)
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`The Court finds that this evidence is sufficient to permit a reasonable juror to
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`conclude that Defendants had access to the copyrighted work before the Accused
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`Homes were fully designed and constructed. See Charles W. Ross Builder, Inc. v.
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`Olsen Fine Home Bldg., LLC, 977 F. Supp. 2d 567, 583 (E.D. Va. 2013) (finding plaintiff
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`had met summary judgment burden of showing access to copyrighted work by showing
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`that defendant had toured model home, picked up a brochure, and received a portfolio
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`showing drawings of the floor plans); Dream Custom Homes, Inc. v. Modern Day
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`Constr., Inc., 773 F. Supp. 2d 1288, 1303 (M.D. Fla. 2011) (denying summary judgment
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`because plaintiff had shown that defendants toured a model home and viewed plans
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`online). Accordingly, the Court finds that Plaintiff has discharged its summary judgment
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`burden as to this prong.
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`2.
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`Substantial Similarity Between Copyrighted Portion of Work
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`To survive summary judgment, Plaintiff must also show a genuine dispute of
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`material fact as to whether there is substantial similarity between the protected aspects
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`of the Anders Plan and the Accused Homes. “[T]he mere fact that a work is copyrighted
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`does not mean that every element of the work may be protected.” Feist Publ’ns, Inc. v.
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`Rural Tele. Serv. Co., 499 U.S. 340, 348 (1991). By extending the Copyright Act’s
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`protections to the “arrangement and composition of spaces and elements” through the
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`AWCPA, Congress sought to recognize that “creativity in architecture frequently takes
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`the form of a selection, coordination, or arrangement of unprotectible elements into an
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`original, protectible whole.” H.R. Rep. No. 101-735 (1990). However, the AWCPA does
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`not protect “individual standard features”, “standard configurations of space”, or design
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`elements that are functionally required. Id. “Thus, it appears that Congress sought, in
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`adopting the AWCPA, to protect only those ‘features [of architectural works] that reflect
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`the architect’s creativity,’ while excluding from the Copyright Act any unoriginal features,
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`the protection of which ‘would impede, rather than promote, the progress of architectural
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`innovation.’” Intervest Constr., Inc. v. Caterbury Estate Homes, Inc., 554 F.3d 914, 919
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`(11th Cir. 2008) (quoting H.R. Rep. No. 101-735 (1990)).
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`To distinguish between the protected and non-protected aspects of a copyrighted
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`work, the Tenth Circuit has adopted the “abstraction-filtration-comparisons” test:
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`First, in order to provide a framework for analysis, . . . a court
`should dissect the [work] according to its varying levels of
`generality as provided in the abstractions test. Second,
`poised with this framework, the court should examine each
`level of abstraction in order to filter out those elements of the
`[work] which are unprotectable. Filtration should eliminate
`from comparison the unprotectable elements of ideas,
`processes, facts, public domain information, merger
`material, scenes a faire material, and other unprotectable
`elements suggested by the particular facts of the program
`under examination. Third, the court should then compare
`the remaining protectable elements with the allegedly
`infringing [work] to determine whether the defendants have
`misappropriated substantial elements of the plaintiff’s [work].
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`Gates Rubber, 9 F.3d at 834.
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`Plaintiff attempts to meet this burden by introducing an expert report prepared by
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`Justin Larsen, in which he opines that the overall layout and flow of the Accused Homes
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`is substantially similar to the Anders Plan. (ECF No. 40-10.) Larsen states that “the
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`houses overall share a very similar aesthetic and layout as seen from the exterior with
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`many elements being similarly located including the garage, living areas, windows, and
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`entryway. Any differences are mostly minor cosmetic changes between the two.” (Id. at
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`2.)
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`The Court finds that this expert report does not meet Plaintiff’s burden with
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`regard to the second prong of the copyright infringement analysis. Further, in its
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`briefing and by the evidence it has presented, Plaintiff has completely ignored the
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`“abstraction-filtration-comparisons” standard. In its summary judgment briefing,
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`Plaintiff’s only argument regarding the protected aspects of the Anders Plan is that it
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`has “identified several unique design and construction features that give Savant homes
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`their distinguishing look and feel”. (ECF No. 40 at 16.) Plaintiff then cites its
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`interrogatory responses and Alan Strope’s deposition, both of which purport to identify
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`elements of the Anders Plan that Plaintiff believes are “original or unique.” (Id. (citing
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`Strope Dep. at 76-77 & ECF No. 40-11).) Plaintiff fails to conduct any analysis of how
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`these elements were designed, or explain how they are original or unique to the Anders
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`Plan. Larsen’s report makes no attempt to differentiate between the protected and
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`unprotected aspects of the Anders Plan, instead opining that the overall layout and flow
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`of the homes (which consists primarily of unprotected elements) is so substantially
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`similar that they must have been copied. (ECF No. 40 at 16; 40-10.) This briefing and
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`evidence is plainly insufficient to meet Plaintiff’s summary judgment burden. See Gates
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`Rubber, 9 F.3d at 833 (“The court’s inquiry does not end with a finding that the
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`defendant copied portions of the plaintiff’s program. Liability for copyright infringement
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`will only attach where protected elements of a copyrighted work are copied.”).
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`Contrary to Plaintiff’s approach, Defendants have produced an expert report
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`prepared by Rob Fisher, which specifically analyzes whether each aspect of the Anders
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`Plan is sufficiently unique so as to afford it protected status under the Copyright Act.
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`(ECF No. 38-10.) Mr. Fisher relies on his experience as an architect, compares the
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`Anders Plan to four house plans that are publicly available online, and opines that the
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`only protectable element of the Anders Plan is “[t]he wrought iron bars over the 3
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`[square] center windows at the front of the garage.” (Id. at 9.) Fisher’s report concludes
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`that all other aspects of the Anders Plan are not protected because they are standard or
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`stock elements, are the product of functional concerns, or are the product of common
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`market forces. (Id. at 6-8.)
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`Notably, the Accused Homes both have only one rectangular window on the front
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`of the garage, and neither has wrought iron bars over that window. (ECF No. 38 at 8.)
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`Thus, no reasonable juror could possibly conclude that the Accused Homes are
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`substantially similar to the aspects of the Anders Plan which Mr. Fisher has identified as
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`protected. As Plaintiff has offered no specific evidence contrary to Mr. Fisher’s report,
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`and has presented no evidence showing that other aspects of the Anders Plan are so
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`unique as to be protected under the copyright laws, the Court could easily end its
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`analysis here and grant summary judgment in favor of Defendant on the copyright
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`infringement claim.
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`However, while Plaintiff has not submitted an expert report on this issue or
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`otherwise analyzed the issue in its summary judgment briefing, Plaintiff has identified a
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`number of characteristics of the Anders Plan that it considers “original or unique”. (ECF
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`No. 40-11 at 7-8.) In the interest of viewing all evidence in the light most favorable to
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`Plaintiff, and drawing all reasonable inferences in favor of Plaintiff, the Court will
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`undertake an analysis of whether any of these characteristics are, in fact, protected by
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`the Copyright Act.
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`In its interrogatory responses, Plaintiff stated that the following aspects of the
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`Anders Plan are “original or unique”:
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`The Anders Plan was designed as an open floor plan with
`the master bedroom on one side of the house and the other
`2 bedrooms on the opposite side. The flexibility with the
`Anders Plan to create flex space within this plan and appeal
`to a buyer that would like that flexibility. The home was
`intended for the “empty nesters” and “baby boomers”. The
`inviting entry into the open space took away that closed-in
`feeling that many homes have. Immediately, within the entry
`is the large stairway to the basement with a large window
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`that allows natural light to not only the stairs, but to the great
`room beyond. The large master suite with the large master
`bath creating a retreat in these areas. Specifically, the large
`bath tub area with the fireplace at the foot of the tub and
`visible from the bed on the opposite side of the wall. The
`reasoning is for the enjoyment from both sides of the
`fireplace in this private space. Creating the walk-in shower
`without a door to the shower offers a space to freely live
`without being enclosed. Having an oversized walk-in closet
`in the feature that offers lots of light in the closet with
`windows on an exterior wall and plenty of space to layout
`and organize the closet. Access directly into the laundry
`room is a feature that is quite unique and has not been seen
`or built by any of Savant’s owners or employees. This
`feature was incorporated because of the closeness to the
`laundry room and the closet where the laundry is usually
`generated. The closeness of the laundry to the garage was
`also part of the specific design allowing easy access to the
`master bedroom without walking through the entire home.
`The Anders Plan offers a side load garage giving the curb
`appeal and the immediate access into the kitchen without
`walking throughout the house with day-to-day items, such as
`groceries. Creation of the gourmet kitchen that is open to
`the dining area, and the entertainment area (the Great
`Room), all within the same space.
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`(ECF No. 40-11 at 7-8.) In Mr. Strope’s deposition, the following exchange occurred:
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`Q: What do you believe are the distinctive source
`[sic] identifying the elements of the Anders plan?
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`A. The Anders plan has multiple distinctive elements
`that is common to a Savant home, you know, starting off with
`the garage situation of how it is tied into the side load garage
`onto the house to be able to fit onto most standard lots. The
`uniqueness from the front elevation of this home with the hip
`roofs that we provided onto it with the detail on how we did
`the stucco and the stone as well as the metal across the
`front of the windows, and those are all elements that tie this
`style of home of what we’ve designed to fit from the outside
`as well as onto the inside.
`In particular, on the inside of the home, the layout was
`specifically designed by my wife and I to have a home that
`we can provide to our clients that has the openness feeling
`to it, has a separation between the master and the other
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`bedrooms, was designed for an empty nester and has the
`features of a master suite that is almost like a master retreat,
`having the large tub with the see-through fireplace as an
`option that goes directly into the master so it’s usable in both
`spaces, having the walk-in shower that is a distinct feature of
`allowing – having dual shower heads within the shower but
`having this open feeling of openness into this large
`bathroom.
`The other distinct feature that I think that we’ve put in
`is the walk-in closet and the large walk-in closet, the size of
`the closet, the direct connection to the laundry room, where
`the majority of this laundry is created is off of the master
`because it was somewhat designed as an empty nester’s
`home.
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`The wide staircases coming to the basement is
`another feature that we have put into this home to – that it’s
`not a straight run, that it has a good curvature, it’s very open,
`they are very wide, it’s a very comfortable feel into the
`basement. And the home is -- was designed to be inviting
`people to come into the front door. It’s inviting, this
`openness to it.
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`(Strope Dep. at 76-77.)
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`From this evidence, the Court has attempted to apply the “abstraction-filtration-
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`comparisons” test, and dissect the Anders Plan to filter out the protectable elements.
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`Gates Rubber, 9 F.3d at 834. In doing so, the Court has considered the evidence in the
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`record regarding features of homes that are common, dictated by market forces, or
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`purely functional. (See ECF No. 38-10.) The Court has also considered the design
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`elements of the four floor plans analyzed by Defendants’ expert. (Id. at 9-11.) From
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`this evidence, the Court finds that the following features are not protected, as they are
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`common and functional rather than unique or original: the open floor plan with master
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`on one side of house and two bedrooms on the opposite side; the “flex space”; the
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`“inviting entry into the open space”; the large master suite with large master bath
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`intended to “create a retreat”; the oversized walk-in closet; the proximity of the laundry
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`room to the master suite; the side load garage with immediate access to the kitchen;
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`and the gourmet kitchen that is open to the dining room and great room. See 37 C.F.R.
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`§ 202.11 (stating that “standard configurations of spaces, and individual standard
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`features such as windows, doors, and other staple building components” cannot be
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`copyrighted); Logan Developers, Inc. v. Heritage Bldgs., Inc., 2014 WL 2547085, at *8
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`(E.D.N.C. June 5, 2014) (finding that the common features, including arrangement of
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`the bedrooms, closets, and open spaces, were not protected by copyright law); Jeff
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`Benton Homes v. Ala. Heritage Homes, Inc., 929 F. Supp. 2d 1231, 1254 (N.D. Ala.
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`2013) (denying copyright protection to floor plan with a master separated from two other
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`bedrooms by the kitchen and living areas because those features are “too common”).
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`Because all of the features described above are not protectable under copyright
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`laws, the court disregards them for purposes of the substantial similarity analysis.
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`Universal Furniture, Int’l, Inc. v. Collezione Europa USA. Inc., 618 F.3d 417, 436 (4th
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`Cir. 2010). Thus, the remaining features that Plaintiff has identified as original or unique
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`are: the large stairway to the basement with large entry to allow natural light onto the
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`stairs and the great room “very open, very wide”; the arrangement of the master bath,
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`including a fireplace at the foot of the bath tub that is visible from bed on opposite wall;
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`metal across the three front windows of the garage; a large walk in shower; and the T-
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`shaped oversized master closet with exterior windows to allow in lots of light. (See ECF
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`Strope Dep. at 76-77; ECF No. 40-11 at 7-8.) Though the Court questions the
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`uniqueness of some of these characteristics, the Court will consider these aspects of
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`the Anders Plan to be protected by copyright law for purposes of summary judgment.
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`The Court has compared the protected elements of the Anders Plan with the
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`Accused Homes and concludes that no reasonable juror could find that there is
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`substantial similarity. Both of the Accused Homes have a narrower stairway leading to
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`the basement that is in the Anders Plan. (ECF No. 40-10 at 8-9.) The master closets in
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`the Accused Homes are also smaller and shaped differently than the Anders Plan.
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`(ECF No. 38-3.) As the wide open nature of the stairway and the shape and size of the
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`closet are what makes these elements so unique as to be eligible for copyright
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`protection, these differences are notable.
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`Even more extreme differences are apparent in the master bathrooms. The
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`Anders Plan has an angled bathtub next to a single sink with a second sink on the
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`opposite wall, a fireplace next to the bathtub visible from the bedroom, a water closet
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`next to one of the sinks, and no linen closet. The 300 Madera home has a straight
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`bathtub next to a shower with two sinks on the opposite wall, a see-through fireplace
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`next to the bathtub, a water closet tucked behind the two sinks, and a linen closet. The
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`8466 Blackwood home has no bathtub, no fireplace, a water closet separate from the
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`sinks and shower, and a linen closet. (ECF No. 38 at 9; ECF No. 38-3.) Aside from the
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`shared element of two sinks in each bathroom, there is little overlap in these designs.
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`Finally, as the Court has previously noted, the windows on the garage of the
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`Accused Homes are significantly different from the Anders Plan. The Anders Plan has
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`three windows across the front of the garage, each covered by metal bars. The
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`Accused Homes have one window each, and no metal bars. (ECF No. 38 at 8; ECF
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`No. 38-3.)
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`The Court recognizes that substantial similarity is typically a question of fact that
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`should be resolved by the jury. See Jacobsen v. Desert Book Co., 287 F.3d 936, 943
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`Case 1:13-cv-02049-WJM-MEH Document 48 Filed 02/27/15 USDC Colorado Page 15 of 23
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`(10th Cir. 2002) (holding that whether works are substantially similar is a “classic jury
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`question”); Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 142 (5th Cir. 2004).
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`However, where no reasonable juror could find that there is substantial similarity
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`between the protectable elements of a copyrighted work and the alleged infringer,
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`summary judgment is appropriate.1 See Blehm v. Jacobs, 702 F.3d 1193, 1208 (10th
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`Cir. 2012) (finding that images are “so dissimilar as to protectable expression that the
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`substantial similarity question need not go to a jury.”); Johnson v. Gordon, 409 F.3d 12,
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`18 (1st Cir. 2005) (“Summary judgment on [substantial similarity] is appropriate only
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`when a rational factfinder, correctly applying the pertinent legal standards, would be
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`compelled to conclude that no substantial similarity exists between the copyrighted work
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`and the allegedly infringing work.”). The Court does not take lightly the decision to grant
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`summary judgment on such a fact-driven question. However, when the Court compares
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`the protected elements of the Anders Plan to the Accused Homes, it has little difficulty
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`concluding that no reasonable juror could find that they are substantially similar.
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`Accordingly, the Court finds that summary judgment is appropriate on Plaintiff’s
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`copyright infringement claim.
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`1 Notably, at least one court has held that substantial similarity with regard to
`architectural plans is more properly judged by a court than a jury. See Intervest Constr., 554
`F.3d at 920 (“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.”).
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`B.
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`Contributory Infringement and Civil Conspiracy
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`Defendants move for summary judgment on Plaintiff’s claims for contributory
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`infringement and civil conspiracy on the grounds that both claims are derivative of a
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`finding of copyright infringement. (ECF Nos. 37 & 38.) Though it argues that summary
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`judgment is not appropriate because there is a genuine dispute of material fact as to the
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`copyright infringement claim, Plaintiff agrees that these claims are derivative. (ECF
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`Nos. 39 & 40.)
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`Having granted summary judgment on Plaintiff’s copyright infringement claim, the
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`Court also concludes that summary judgment is appropriate on Plaintiff’s claims for
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`contributory infringement and civil conspiracy.
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`C.
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`Trade Dress Infringement
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`“The trade dress of a product is its overall image and appearance, and may
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`include features such as size, shape, color or color combinations, texture, graphics, and
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`even particular sales techniques.” Sally Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d
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`964, 977 (10th Cir. 2002). Protection may extend to a single feature or a combination
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`of features in a trade dress. See Vornado Air Circulation Sys., Inc. v. Duracraft Corp.,
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`58 F.3d 1498, 1502 (10th Cir. 1995). In order to demonstrate trade dress infringement,
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`the plaintiff must demonstrate: (1) that its trade dress is inherently distinctive or has
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`become distinctive through secondary meaning; and (2) likelihood of confusion. See id.
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`at 1502-03. In addition, the party asserting trade dress infringement bears the burden
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`of demonstrating that the trade dress is not functional. 15 U.S.C. § 1125(a)(3); Wal-
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`Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 210 (2000).
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`Defendants contend that Plaintiff has failed to identify the features of the Anders
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`Case 1:13-cv-02049-WJM-MEH Document 48 Filed 02/27/15 USDC Colorado Page 17 of 23
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`Plan that qualify as trade dress, has failed to show that these elements are distinctive,
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`and has failed to establish likelihood of confusion. (ECF No. 37 at 19-20.)
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`1.
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`Inherently Distinctive
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`The Tenth Circuit has held:
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`A trade dress is inherently distinctive if its intrinsic nature
`serves to identify a particular source. Such trade dresses
`almost automatically tell a customer that they refer to a
`brand and immediately signal a brand or a product source.
`Like trademarks, the inherent distinctiveness of a trade dress
`is categorized along the generic-descriptive-
`suggestive-arbitrary-fanciful spectrum. A trade dress which
`is not inherently distinctive, however, may acquire
`distinctiveness through secondary meaning. In other words,
`over time c