Case: 3:15-cv-00666-JZ Doc #: 180 Filed: 05/23/19 1 of 29. PageID #: 7997
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`WESTERN DIVISION
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`Design Basics, LLC,
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`Case No. 3:15CV666
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`Plaintiff
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`v.
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`Forrester Wehrle Homes, Inc., et al.,
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`Defendants
`
`ORDER
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`This is a copyright-infringement case in which the plaintiff, Design Basics, LLC (DB),
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`alleges that the defendants – Forrester Wehrle Homes, Inc.; Forrester Wehrle Development, Ltd.;
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`and their principals Jeffrey, Joseph, and Richard Wehrle (collectively, FWH) – infringed DB’s
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`copyrights in a series of architectural plans.
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`DB alleges that FWH copied its plans and/or used them without permission to build
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`single-family homes in Northwest Ohio and Southeast Michigan. It also brings related claims
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`under the Digital Millennium Copyright Act.
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`Now that I have ruled on the parties’ motions for summary judgment, and with the parties
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`having failed to resolve the case via private mediation, the case is ready for trial on the issues not
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`adjudicated in the summary judgment orders.
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`Due to my unavailability to preside over a jury trial of the length (between ten and forty
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`trial days) currently anticipated by the parties, this case will be, upon my adjudication of the
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`parties’ motions in limine (Docs. 153, 154, 158, 159, 160), reassigned to the Honorable Jack
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`Zouhary for all further proceedings. (Doc. 172).
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`

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`Case: 3:15-cv-00666-JZ Doc #: 180 Filed: 05/23/19 2 of 29. PageID #: 7998
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`This order sets forth my rulings on those motions.
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`Discussion
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`A. Testimony of Carl Cuozzo
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`The defendants first move to exclude the lay opinions of DB’s “senior designer” Carl
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`Cuozzo and the pedagogical devices that he prepared. (Doc. 153). Their motion (id., PageID
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`1554) challenges the admissibility of Cuozzo’s opinions that:
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`(cid:120)
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`(cid:120)
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`(cid:120)
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`(cid:120)
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`Each of DB’s architectural plans “demonstrate[s] a ‘modicum of creativity.’”
`(Doc. 89–7, PageID 3666–67 at ¶7).
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`Based on Cuozzo’s comparison of each of FWH’s plans to the DB plan that it
`allegedly infringed, the parties’ plans are “substantially similar” so as to support
`an inference of unlawful copying. (Id., PageID 3667 at ¶10).
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`Each FWH plan contains many design similarities as the corresponding DB plan.
`(Id., PageID 3667 at ¶11).
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`Defense expert Richard Kraly’s opinion that the defendants’ plans are not
`substantially similar to DB’s plans contains many “discrepancies.” (Id., PageID
`3667 at ¶12).
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`Defendants argue that these opinions “rely on specialized knowledge and constitute
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`impermissible lay witness testimony.” (Doc. 153, PageID 6653). They also argue that the
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`opinions will not be helpful to the jury. Instead, the defendants claim, the opinions are “helpful
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`to DB only because they dictate the outcome of the . . . substantial similarity analysis.” (Id.,
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`PageID 6658).
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`FWH also seeks exclusion of Exhibits C and D to Cuozzo’s declaration.
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`The former comprises three exhibits that Cuozzo prepared.
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`Exhibit C-1, titled “Plan Elevations,” offers a visual comparison of the exterior frontages
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`of each DB plan and the FWH plan that allegedly infringes it. (Doc. 89–3). Exhibit C-2, styled
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`“Side-by-Side Layouts,” depicts the blueprint of each DB plan adjacent to the blueprint of the
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`2
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`Case: 3:15-cv-00666-JZ Doc #: 180 Filed: 05/23/19 3 of 29. PageID #: 7999
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`allegedly infringing FWH plan. (Doc. 89–4). Exhibit C-3, “Plan Overlays,” depicts the blueprint
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`for each DB plan laid on top of the allegedly infringing FWH plan, thereby permitting the fact-
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`finder to observe how similar (or not) the parties’ plans are.
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`Exhibit D, in turn, is a list of purported similarities that Cuozzo detected between DB’s
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`plans and FWH’s allegedly infringing plans. (Doc. 89–6).
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`DB responds that Cuozzo may testify about “DB’s design process, the creation of the 17
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`[works] at issue, how DB discovered Defendants’ Accused Works, how he reviewed the
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`Accused Works, and what prompted him to believe that they were copied from DB’s
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`Copyrighted Works[.]” (Doc. 171, PageID 7150).
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`It also contends that I should allow Cuozzo to “explain in detail” to the jury “what makes
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`each [DB] plan ‘original’” and what “features present” in the defendants’ plans are “nearly
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`identical” to DB’s designs, “have no functional purpose[,]” and thus “evidence copying.” (Id.).
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`DB emphasizes that Cuozzo bases his opinions on the knowledge and experience he gained
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`working for DB, rather than on any specialized or technical knowledge that might implicate
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`Evidence Rule 702.
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`Regarding the pedagogical devices, DB argues that they are admissible because they
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`“serve only to augment the visual comparison [of the allegedly infringing and infringed works]
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`for the jury’s consideration.” (Id., PageID 7153).
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`1. Admissibility of Opinion Evidence
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`“A witness may testify based on opinion, as opposed to testifying to facts of which he has
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`direct knowledge, under two circumstances: as a lay person under Rule 701 or as an expert under
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`Rule 702.” U.S. v. Freeman, 730 F.3d 590, 595 (6th Cir. 2013).
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`3
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`“Such lay opinion testimony is permitted under Rule 701 because it has the effect of
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`describing something that the jurors could not otherwise experience for themselves by drawing
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`upon the witness’s sensory and experiential observations that were made as a first-hand witness
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`to a particular event.” Id. (internal quotation marks omitted). To ensure that lay testimony serves
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`the “objective of putting the trier of fact in possession of an accurate reproduction of the event,”
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`id., Rule 701 instructs that:
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`If a witness is not testifying as an expert, testimony in the form of an opinion is
`limited to one that is: (a) rationally based on the witness’s perception; (b) helpful
`to clearly understanding the witness’s testimony or to determining a fact in issue;
`and (c) not based on scientific, technical, or other specialized knowledge within
`the scope of Rule 702.
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`Fed. R. Evid. 701.
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`“If a witness’s testimony fails to meet any one of the three foundational requirements, it
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`is not admissible.” Freeman, supra, 730 F.3d at 596.
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`2. Analysis
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`I will grant the defendants’ motion in part and deny it in part.
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`First, to the extent that Cuozzo proposes to testify about DB’s design processes, how DB
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`created the seventeen architectural plans at issue, and how Cuozzo came to learn about FWH and
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`their designs, such testimony is not inadmissible under Rules 701 and 702.1
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`DB has represented, without contradiction from the defendants, that Cuozzo has worked
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`for DB for more than thirty years, and that “he has personally observed and taken part in the
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`creation of these designs[.]” (Doc. 171, PageID 7150). His experience provides an adequate
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`1 Whether the defendants challenge this testimony on some other basis will raise issues
`for Judge Zouhary to resolve.
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`4
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`foundation for Cuozzo to testify about the areas outlined above. U.S. v. White, 492 F.3d 380, 403
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`(6th Cir. 2007).
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`Second, to the extent that Cuozzo intends to opine on the supposed “originality” of DB’s
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`architectural works, or the creativity inherent in them, he may testify only that DB and/or its
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`agents and employees created the plans at issue.
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`As I explained at the summary-judgment stage, “[o]riginal, as the term is used in
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`copyright, means only that the work was independently created by the author (as opposed to
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`copied from other works), and that it possesses at least some minimal degree of creativity.”
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`Design Basics, LLC v. Forrester Wehrle Homes, Inc., 302 F. Supp. 3d 933, 941 (N.D. Ohio
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`2018).
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`For that reason, Cuozzo – who participated in the creation of some or all of the DB works
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`at issue – may testify that DB and its employees, on their own, created those plans. But Cuozzo
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`may not opine that the works are “original” in the sense that they possess “some minimal degree
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`of creativity.”
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`Whether Cuozzo, a lay witness, believes that the designs are original (and therefore
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`entitled to copyright protection) is irrelevant and not helpful to the jury. Rather, the jury will be
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`able to decide, based on the testimony it hears and its review of the architectural plans, whether
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`DB’s works possess a minimal degree of creativity. See Freeman, supra, 730 F.3d at 597.
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`Third, and for largely the same reasons, Cuozzo may not opine that DB’s works and
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`FWH’s works are substantially similar.
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`“To generate an inference of copying, the copyright owner must show “(1) access to the
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`allegedly-infringed work by the [infringer] and (2) a substantial similarity between the two
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`5
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`Case: 3:15-cv-00666-JZ Doc #: 180 Filed: 05/23/19 6 of 29. PageID #: 8002
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`works at issue.” Design Basics, LLC v. Forrester Wehrle Homes, Inc., 2017 WL 5444569, *1
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`(N.D. Ohio 2017).
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`“Because not all copying . . . is copyright infringement . . . the plaintiff must establish
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`that the defendant’s work is substantially similar to protectible elements of the plaintiff’s work.
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`Thus the term substantial similarity is properly reserved for similarity that exists between the
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`protected elements of a work and another work.” Id. (internal quotation marks and citations
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`omitted).
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`Cuozzo, being only a lay witness, has no specialized knowledge or experience that would
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`permit him to offer a helpful opinion – an opinion that the jurors could not form for themselves –
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`as to what constitutes protected expression in either DB’s or FWH’s designs. Moreover,
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`Cuozzo’s opinion that the parties’ works appear similar would not be helpful to the jury because
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`it would “merely tell the jury what result to reach.” Freeman, supra, 730 F.3d at 597.
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`Fourth, Exhibits C-1, C-2, and C-3 to Cuozzo’s declaration are not inadmissible under
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`Rules 701 and 702.
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`These exhibits present objective data – depictions of the exterior frontages of the parties’
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`architectural plans, side-by-side-comparisons of the designs’ blueprints, and an overlay of the
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`blueprints – that are of obvious and extreme value to the jury. Indeed, if admitted, they would
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`simplify the task of comparing the plans to determine whether they are substantially similar.
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`The defendants have not objected that the comparisons are inaccurate, unfairly
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`prejudicial, or otherwise problematic. And while Cuozzo is not qualified to offer an expert
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`opinion in this case, that does not mean he is unqualified to assemble Exhibits C-1, C-2, or C-3
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`or to testify about how he assembled those exhibits and what the comparisons show (e.g., both
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`parties’ plans feature design component A in room B, design feature X in hallway Y, and so on).
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`6
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`Fifth, Exhibit D to Cuozzo’s declaration – a lengthy list of the similarities that Cuozzo
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`observed between the allegedly infringing and infringed plans – is likely inadmissible as
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`substantive evidence, but, assuming it accurately reflects Cuozzo’s testimony, it may be used by
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`counsel as a demonstrative aide in presenting Cuozzo’s testimony. Given my necessarily
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`provisional understanding of Cuozzo’s likely testimony I will leave it to the parties to seek
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`further refinement of this ruling, if such is needed, before Judge Zouhary.
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`Sixth, because I hold below that Richard Kraly may not offer an opinion for the
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`defendants that the parties’ works are substantially similar, Cuozzo may not testify about the
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`supposed discrepancies in Kraly’s opinion.
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`B. Lost Profits and PGS Works
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`FWH moves to bar DB from recovering any profits that FWH generated by constructing
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`and selling homes that allegedly infringe the DB plans that are registered with the Copyright
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`Office only as pictorial, graphic, or sculptural (PGS) works. (Doc. 154).
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`1. Parties’ Arguments
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`“Until 1990, architectural works could be registered [for copyright protection] only as
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`‘technical drawings’ under the category of PGS works.” Design Basics, LLC v. Forrester Wehrle
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`Homes, Inc., 2018 WL 1583103, *10 (N.D. Ohio 2018). “A PGS copyright protected the
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`underlying design from being copied, but it did not prevent the construction of a building based
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`on those plans.” Id. at *11; see also, e.g., Oravec v. Sunny Isles Luxury Ventures, L.C., 572 F.3d
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`1218, 1231 (11th Cir. 2008) (“a PGS copyright cannot be infringed by an as-built structure”).2
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`2 In 1990, with the passage of the Architectural Works Copyright Protection Act,
`copyright protection extended to “architectural works,” which the statute defined as the “design
`of a building as embodied in any tangible medium of expression, including the building,
`architectural plans, or drawings.” 17 U.S.C. § 101.
`7
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`Case: 3:15-cv-00666-JZ Doc #: 180 Filed: 05/23/19 8 of 29. PageID #: 8004
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`FWH contends that DB registered ten of the plans at issue – the Kendall, Sherburne,
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`Lancaster, Carrington, Galvin, Monte Vista, Harrisburg, Chandler, Ambrose, and Harrington
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`plans – only as PGS works. (Doc. 154, PageID 6666).
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`Because building (and then selling) a home based on these PGS-copyrighted architectural
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`plans would not constitute copyright infringement, FWH argues that DB cannot recover profits
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`that it generated from building and selling homes based on DB’s PGS works. FWH therefore
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`asks me to hold that, with respect to any alleged infringements of the PGS works, DB can
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`recover only those damages caused by the copying of the plans themselves (e.g., the licensing
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`revenues the defendants did not pay for using the DB plans).
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`DB makes two arguments in response.
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`First, it argues that four of the designs at issue are, in fact, registered with the Copyright
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`Office as both PGS works and architectural works. (Doc. 170, PageID 7094). DB explains that it
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`“inadvertently omitted” the corresponding registration materials from its summary-judgment
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`filings, but “plans to present evidence at trial that these 4 works are protected as architectural
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`works[.]” (Id., PageID 7089 n.4).
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`Second, relying on the Sixth Circuit’s decision in Robert R. Jones & Assocs., Inc. v. Nino
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`Homes, 858 F.2d 274 (6th Cir. 1988), DB argues that the proper measure of damages from
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`FWH’s alleged infringement of the PGS works includes the profits that FWH generated by using
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`the PGS works to design, build, and sell houses.
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`The district court in that case found that Nino Homes had copied a floor plan created by
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`the plaintiff, Robert R. Jones & Associates, and used it to build (and sell) seven houses. Nino
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`Homes, supra, 858 F.2d at 275–76. It awarded the Jones firm damages in the form of the “profits
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`8
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`it would have earned on the sale of additional houses had Nino Homes not used infringing copies
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`of the [Jones] plans to build houses which it sold.” Id. at 277.
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`On appeal, Nino Homes argued that this “‘lost profits’ standard” was improper. Id. It
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`urged the Sixth Circuit to fix damages instead at “the fair market value of the architectural plans
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`at the time of the infringement.” Id.
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`The Circuit rejected that argument. After surveying the case law, the court held that the
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`Jones firm was entitled to recover the profits that Nino Homes generated by using its plans to
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`build and sell houses:
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`[t]he rule which emerges from these cases is that one may construct a house
`which is identical to a house depicted in copyrighted architectural plans, but one
`may not directly copy those plans and then use the infringing copy to construct
`the house. As a logical extension of this rule, we hold that, where someone makes
`infringing copies of another’s copyrighted architectural plans, the damages
`recoverable by the copyright owner include the losses suffered as a result of the
`infringer’s subsequent use of the infringing copies.
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`Id. at 280.
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`2. Analysis
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`In light of Nino Homes, supra, I will overrule the defendants’ motion.
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`That case holds, in rather plain terms, that when an infringer copies an architectural plan
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`and “use[s] the infringing copy to construct [a] house,” the damages caused by the infringement
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`– i.e., the copying – “include the losses suffered as a result of the infringer’s subsequent use of
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`the infringing copies.” Nino Homes, supra, 858 F.2d at 280 (emphasis supplied).
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`As applied here, Nino Homes instructs that if DB were to prove that FWH copied the ten
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`PGS-copyrighted plans and used those copies to build homes that it later sold, the profits that
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`FWH generated through such sales would be an available form of damages.
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`FWH urges me to ignore Nino Homes, but I cannot do so.
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`9
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`FWH’s first argument is that Nino Homes was wrongly decided. This is so, FWH
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`maintains, because the case’s lost-profits rule of is inconsistent with the principle that “the
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`construction of a house from a PGS copyrighted home design does not infringe that copyright.”
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`(Doc. 154, PageID 7173). In other words, where there is no infringement, there can be no
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`damages.
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`The main problem with this argument is that Nino Homes, which is binding on me, held
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`that the revenue from such sales is an available form of damages. More to the point, Nino Homes
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`is not inconsistent with the rule that an as-built structure does not itself infringe a PGS-
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`copyrighted design.
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`Nino Homes did not hold that building a home based on a PGS-copyrighted design is
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`copyright infringement. Rather, “[i]n an attempt to make up for a perceived deficiency in
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`copyright law’s protection of architectural structures,” Nino Homes simply “calculated damages
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`so as to include profits realized from the construction of works using infringing copies of
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`technical drawings.” Nat’l Med. Care, Inc. v. Espiritu, 284 F. Supp. 2d 424, 435 (S.D.W. Va.
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`2003) (citing Nino Homes, supra, 858 F.2d at 280).
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`Second, defendants argue that Nino Homes is distinguishable because the parties in that
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`case were direct competitors whose competition “creat[ed] an overlap between the plaintiff’s loss
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`of profit from sales that presumably went to the defendant’s gain from those same sales.”
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`(Doc. 154, PageID 7174).
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`But the holding of Nino Homes did not turn on the parties’ competitive relationship.
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`Instead, the Sixth Circuit broadly held that the available damages include the damages that result
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`from a competitor’s subsequent use of the infringing copies. Nino Homes, supra, 858 F.2d at
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`280.
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`10
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`The evidence in that case convinced the district judge that, but for Nino Homes’ use of
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`the Jones firm’s plan to build and sell seven homes, the Jones firm itself would have sold seven
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`homes. Id. at 276. Accordingly, the Sixth Circuit affirmed the district court’s finding that the
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`proper measure of damages was “the profits Jones Associates would have made on houses it
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`would have sold but for Nino Homes’ unauthorized duplication of the Aspen plans and Nino
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`Homes’ use of its infringing copies to build its Riverside houses.” Id. at 281.
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`Whether the profits that FWH generated by selling homes based on DB’s PGS works are,
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`as a factual matter, “losses suffered as a result of [FWH’s] subsequent use of the infringing
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`copies” or, as the copyright statute puts it, “attributable to the infringement” will be a matter for
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`the jury to decide. See 17 U.S.C. § 504 (“The copyright owner is entitled to recover the actual
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`damages suffered by him or her as a result of the infringement, and any profits of the infringer
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`that are attributable to the infringement and are not taken into account in computing the actual
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`damages.”).3
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`C. Admissibility of the DB Spreadsheet
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`Defendants also move to exclude a spreadsheet that lists the 351 homes that one or more
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`of the defendants allegedly built from a DB plan. (Doc. 160).
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`3 My ruling moots FWH’s argument that DB’s failure to disclose that it had registered the
`Ambrose, Galvin, Harrisburg, and Shannon plans as architectural works should preclude DB
`from recovering the profits that FWH generated by allegedly using those designs to build and
`sell homes. Because lost-profits damages would be available even if those designs were
`registered only as PGS works, whether the designs are also registered as architectural works is
`not relevant. That said, nothing in this order should preclude defendants from renewing their
`objection at trial if DB sought to introduce those plans’ registrations as architectural works for
`some other reason. DB’s failure to disclose the registrations of these four designs as architectural
`works at any point during this litigation – including at summary judgment, when a focus of the
`litigation was on the scope and validity of DB’s copyright registrations – ought to weigh heavily
`against its being able to prosecute its infringement claims vis-à-vis the Ambrose, Galvin,
`Harrisburg, and Shannon plans as architectural works.
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`11
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`For each of the homes at issue, the spreadsheet identifies: 1) the FWH plan used to build
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`the home; 2) the DB plan that the FWH plan allegedly infringed; 3) the house’s address; 4) the
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`year the house was built; 5) which defendant built the home; and 6) the sale price. (Doc. 160–1,
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`PageID 6862–6881).
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`FWH argues that the spreadsheet is inadmissible under Fed. R. Evid. 1006.
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`According to the defense, DB has not: 1) shown that the documents underlying the
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`spreadsheet are “so voluminous as to require the use” of a summary; 2) provided the defense
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`with all of the documents on which the spreadsheet is based; or 3) established that the underlying
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`documents are themselves admissible. (Doc. 160, PageID 6853–56).
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`DB’s response brief does not address these arguments in a meaningful way.
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`Instead, DB devotes nearly three-quarters of its brief to cataloguing, in needless and
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`exhausting detail, the defendants’ alleged shortcomings in producing information that DB needed
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`to prepare the spreadsheet. (Doc. 169, PageID 7052–61). Based on those perceived blunders, DB
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`contends, and because the defendants supposedly failed to comply with my prior orders to
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`produce such information during discovery, they have no basis to object to the spreadsheet’s
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`admissibility.4
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`Then, ignoring the major premise of FWH’s motion, DB argues that “there is no dispute
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`that the documents and information underlying the spreadsheet are voluminous.” (Id., PageID
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`7062).
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`4 Although I ordered FWH to produce, under penalty of perjury, the information that DB
`assembled into the spreadsheet, nowhere did I order, as DB implies, that once DB assembled the
`spreadsheet it would be admissible under Rule 1006 without regard to FWH’s objections.
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`12
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`Based on the limited information before me, and in light of the singularly unhelpful
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`briefing, I will grant FWH’s motion, though without prejudice.
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`There is nothing before me that establishes whether, in fact, the documents underlying
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`the spreadsheet are so voluminous as to necessitate its use. See U.S. v. Bray, 139 F.3d 1104, 1109
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`(6th Cir. 1998). Such a showing is a “precondition[ ] to admitting a 1006 summary chart,” and
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`DB has not even tried to make that showing. Id.
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`That said, it would be wholly inappropriate to deny the jury access to a chart or summary
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`like the spreadsheet, even though DB has not yet laid an adequate foundation that the spreadsheet
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`is admissible.
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`The spreadsheet contains objective information that does not appear to be in dispute:
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`namely, which plans FWH used to build a particular home, which DB plan FWH allegedly
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`infringed, which defendant built the home, and the sale price. Much of this information,
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`moreover, came from the defendants themselves. (Doc. 169, PageID 7062). Given the number of
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`claims at issue, moreover, the information would seem to be of obvious value to the jury, at the
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`very least as an organizational tool during their deliberations.
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`In these circumstances, the parties should be able to work together either to: 1) verify the
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`accuracy of the information in the spreadsheet, so that they can stipulate to its accuracy; or 2)
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`create a more acceptable spreadsheet, such as Exhibit C to DB’s opposition brief (which
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`eliminates much of the extraneous materials to which FWH objected, but which DB never
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`disclosed until filing its opposition brief).
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`The parties’ failure or inability to do so would needlessly prolong the trial, which is – and
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`which the parties must, notwithstanding their scorched-earth approach to pretrial litigation,
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`understand is – unacceptable. Ultimately, however, I will leave it to Judge Zouhary’s discretion
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`to fashion a fair and reasonable solution to this issue.
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`D. DB’s Omnibus Motion
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`For its part, DB moves to exclude nine categories of evidence from the trial. (Doc. 158).
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`1. Richard Kraly’s Testimony
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`DB first moves to exclude the opinions and declarations of FWH’s expert, Richard Kraly.
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`(Doc. 158, PageID 6816–21). Kraly, an Ohio architect, intends to opine that: 1) none of DB’s
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`plans contains protected expression; and 2) even if the plans did contain protected expression,
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`FWH’s plans are not substantially similar to DB’s plans.5
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`DB argues that the former opinion is “moot” because, at the summary-judgment stage, I
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`ruled as a matter of law that each of DB’s plans contains protected expression. (Id., PageID
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`6817–18). Regarding the latter opinion, DB argues that there is no need for expert testimony on
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`the issue of substantial similarity, where the controlling test is whether the parties’ designs
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`appear similar to an ordinary observer. (Id., PageID 6818–19).
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`FWH opposes the motion, arguing that my rulings at summary judgment did not find that
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`DB’s plans contain protected expression (Doc. 167, PageID 6953–54), and that Kraly’s opinions
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`on that subject will be helpful to the jury. It also argues that I have discretion to permit an expert
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`to testify whether two parties’ architectural designs would appear similar to an ordinary observer.
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`(Id., PageID 6955–56).
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`I will grant DB’s motion in part and deny it in part.
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`5 I have already excluded Kraly’s first declaration to the extent that it expressed legal
`opinions characterizing DB’s designs as too unoriginal to warrant copyright protection. Design
`Basics, LLC v. Forrester Wehrle Homes, Inc., 2017 WL 5467152, *4 (N.D. Ohio 2017).
`Accordingly, Kraly may not offer any such testimony at trial.
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`Case: 3:15-cv-00666-JZ Doc #: 180 Filed: 05/23/19 15 of 29. PageID #: 8011
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`First, Kraly may opine, in light of his specialized knowledge and training as an architect,
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`that DB’s designs do not contain protected expression.
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`In his declarations, Kraly identifies multiple external considerations that allegedly
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`deprive DB’s plans of original, protected expression.6 Such testimony may help the jury “filter
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`out” the unprotected components, if any, of DB’s plans and focus on the protected level of
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`expression, if any, in the designs. Kohus v. Mariol, 328 F.3d 848, 855 (6th Cir. 2003); see also
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`Design Basics, LLC v. Drexel Bldg. Supply, Inc., 2016 WL 5794746, *2 (E.D. Wis. 2016)
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`(holding that “an expert in architecture” could “identify engineering or design requirements that
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`are common to all single-family homes; he could explain which features are common to a given
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`style or floor plan; and he could identify aspects of room placement and flow that are inherent in
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`home design”).7
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`6 In moving for summary judgment on the issue of substantial similarity, the defendants
`relied on only four pages of Kraly’s 137-page declaration. Design Basics, supra, 302 F. Supp. 3d
`at 942–43 & n.1. As my order explained, those portions of Kraly’s report were conclusory,
`unsupported, and insufficient to warrant summary judgment. Id. at 945–48. Among the
`information that defendants failed to cite or discuss – despite my order directing them to cite the
`record to support their assertions and forbidding them from incorporating the experts’ lengthy
`reports by reference – are detailed lists of the design choices in each DB plan that Kraly believes
`are not protected expression. Those summaries, combined with Kraly’s general opinions that
`external considerations can limit the amount of original expression in an architectural plan,
`would seem to provide an adequate basis for Kraly to opine why a given DB plan contains only
`standard features or is otherwise not original.
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`7 Contrary to DB’s arguments, my denial of the defendants’ motion for summary
`judgment on the issue of substantial similarity was not – certainly not by its terms or even by
`implication – a grant of summary judgment to DB on the ground that its designs contained
`protected expression.
`The dispositive issue in that motion was what, exactly, constituted the protected level of
`expression in DB’s architectural plans. Design Basics, supra, 302 F. Supp. 3d at 941–42. DB
`contended that copyright protection extended to the “overall form” or the “look and feel” of the
`homes, the “arrangement and composition of spaces and elements across the first and second
`floors” of the homes, the “program of the architectural work,” the “three-dimensional alignment
`of the spaces and elements,” and the “outside elevations.” Id. at 942. Relying on Kraly’s
`declarations, FWH contended that none of those elements was protectable. Id. After surveying
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`Second, Kraly may not opine whether DB’s and FWH’s plans are substantially similar.
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`The “traditional approach” for determining whether two works are substantially similar
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`is the “ordinary observer” test, which “requires the trier of fact to gauge the similarities of the
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`two works solely on the basis of his ‘net impression’ and without relying on expert analysis or
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`dissection.” Kohus, supra, 328 F.3d at 854 (some internal quotation marks omitted).
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`“[T]he inquiry in the second prong of the substantial similarity test should focus on the
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`intended audience,” which “will ordinarily be the lay public.” Id. at 857 (emphasis in original).
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`“[T]he finder of fact’s judgment should” therefore “be from the perspective of the . . . ordinary
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`reasonable person.” Id.
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`Under Kohus, the jury’s answer to the substantial-similarity question will turn on the
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`jurors’ own impressions of the works’ similarities or differences – their sense, that is, as
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`“ordinary observers” whether the plans’ “aesthetic appeal” is essentially “the same.” Design
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`Basics, supra, 302 F. Supp. 3d at 950 (internal quotation marks omitted). Kraly’s proposed
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`testimony – i.e., that he, not as an ordinary observer, but as an architect with special training and
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`knowledge about the conventions of home designs, believes the designs are dissimilar – would
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`not be helpful to the jury on this issue and is therefore inadmissible.
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`the case law, I resolved that dispute by concluding that “copyright law protects the arrangements
`of standard elements for which DB seeks protection.” Id. at 945. Because DB held “certificates
`of copyright registration in the allegedly infringed works, I presume[d]” – rather than held as a
`matter of law – that “its designs satisfy the extremely low threshold for originality.” Id. at 941
`(internal quotation marks omitted and emphasis supplied). I then explained why Kraly’s opinion,
`viewed in the light most favorable to DB, was insufficient to overcome the presumption and
`establish as a matter of law that any reasonable juror would find that DB’s designs contained no
`protected expression.
`The upshot of this ruling is that the existence of protected expression in DB’s designs
`was then, and remains today, an issue for the jury.
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`Case: 3:15-cv-00666-JZ Doc #: 180 Filed: 05/23/19 17 of 29. PageID #: 8013
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`2. John Gugliotta’s Testimony
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`DB next moves to exclude the testimony of FWH’s second expert, attorney John D.
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`Gugliotta. (Doc. 158–1, PageID 6821).
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`Gugliotta prepared a report opining, inter alia, that DB’s architectural plans contain no
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`original expression and are ineligible for copyright protection. His report also contained a
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`summary of his investigation into other issues at play in the case, including w