4:08-cv-04133-TLW Date Filed 02/14/11 Entry Number 122 Page 1 of 23
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`The Sater Design Collection, Inc.,
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`Plaintiff,
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`vs.
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`Waccamaw Construction, Inc., David
`Hostetler, Edith M. Neeves, Alexander
`Construction, Inc., Michael R.
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`Alexander, Qwest Home Design, Inc.,
`and Brad Odom,
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`Defendants.
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`__________________________________
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`FLORENCE DIVISION
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`) Civil Action No.: 4:08-cv-4133-TLW-SVH
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`ORDER
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`On December 23, 2008, the plaintiff, Sater Design Collection, Inc. (“Sater” or
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`“plaintiff”), brought this civil action for copyright infringement of its “6804” architectural work.
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`(Doc. # 1). Sater named Waccamaw Construction, Inc. (“Waccamaw”), David Hostetler
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`(“Hostetler”), and Edith M. Neeves as defendants. (Doc. # 1). On February 2, 2009, Waccamaw
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`and Hostetler filed an answer. (Doc. # 15). On April 17, 2009, Waccamaw and Hostetler filed
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`an amended answer to the plaintiff’s complaint, which included third-party claims against
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`Alexander Construction, Inc. and Qwest Home Design, Inc. (Doc. #32). Sater filed an amended
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`complaint on June 11, 2009, again alleging copyright infringement and naming Waccamaw
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`Construction, Inc., David Hostetler, Edith M. Neeves, Alexander Construction, Inc., Michael R.
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`Alexander, Qwest Home Design, Inc., and Brad Odom as defendants. (Doc. # 47). Sater alleges
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`that the defendants infringed its copyrighted “6804” home plan by designing, constructing, and
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`participating in the construction of a residence located at 840 Waterton Avenue, Myrtle Beach,
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`South Carolina (“Waterton residence”). Waccamaw and Hostetler filed an answer to the
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`amended complaint and cross-claimed against the other defendants.1 (Doc. # 58).
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`On April 12, 2010, Sater filed a motion for summary judgment. (Doc. # 98). Waccamaw
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`and Hostetler filed a response on May 14, 2010 (Doc. # 106) to which Sater filed a reply. (Doc.
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`# 107). On November 5, 2010, Waccamaw and Hostetler filed a motion in which they sought
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`leave from the Court to replace the memorandum they had filed in response to Sater’s summary
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`judgment motion. (Doc. # 111). Sater filed a response in which it consented to the motion to
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`amend/correct. (Doc. # 112). On December 2, 2010, this Court granted the motion to
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`amend/correct (Doc. # 113), and Waccamaw and Hostetler filed their amended response to the
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`motion for summary judgment on December 6, 2010. (Doc. # 114). Sater filed a reply on
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`December 16, 2010. (Doc. # 116). Sater also filed three motions in limine on May 11, 2010.
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`(Doc. # 105). A hearing on Sater’s motion for summary judgment (Doc. # 98) and its motions in
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`limine (Doc. # 105) was held via telephone on January 25, 2011. (Entry # 121). The Court has
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`considered the applicable law, arguments of counsel, and memoranda submitted. These motions
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`are now ripe for disposition.
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`FACTS
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`The material facts in this case are not in dispute. Sater is an architectural design firm that
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`creates and sells custom and pre-drawn building plans. One such building design is the 6804
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`plan, also known as the “Nicholas Park” design. Edith M. Neeves commissioned the
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`construction of the Waterton residence for her and her husband, Mack Neeves, in 2006. Ms.
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`1 Sater has voluntarily dismissed with prejudice its claims against Edith M. Neeves, Qwest Home Design,
`Inc., and Brad Odom. (Docs. 89, 101). Sater has also voluntarily dismissed without prejudice its claims against
`Alexander Construction, Inc. and Michael R. Alexander. (Doc. # 72). Therefore, Sater only has remaining claims
`against Waccamaw and Hostetler.
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`Neeves originally consulted with Michael R. Alexander of Alexander Construction, Inc., who
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`gave her and her husband the 6804 plan. According to Ms. Neeves, she believed that Alexander
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`and Alexander Construction had legally acquired the plans and that Alexander Construction
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`would be the contractor on the job. Subsequently, the 6804 plan was given to Brad Odom of
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`Qwest Home Design, Inc. (“Qwest”). He made modifications to the plan based on the Neeves’
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`requests. The plan was redrawn by Qwest with the requested modifications and labeled with the
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`moniker “Qwest Home Design.”
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`When it was time to build the Waterton residence, the Neeves’ lender did not approve
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`Alexander Construction to build the home. The Neeves turned to Waccamaw to build the
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`residence, and the two parties entered into a contract. Hostetler, who is the sole owner and
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`officer of Waccamaw Construction, Inc., was the signatory for Waccamaw Construction. Mr.
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`and Mrs. Neeves gave Waccamaw the set of plans, which had the Qwest moniker on it (“Qwest
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`plan” or “Qwest design”). There is no evidence showing that Waccamaw knew this plan was
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`based on Sater’s 6804 design. Waccamaw made no inquiry of Qwest regarding the origin of the
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`plan. Waccamaw began construction of the residence based on this set of plans and made
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`significant progress toward completion. However, Waccamaw did not complete the residence
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`because the Neeves’ lender ceased funding for the project. Sater later discovered the Waterton
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`residence and filed this civil action.
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`SUMMARY JUDGMENT STANDARD
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`Pursuant to Federal Rule of Civil Procedure 56(a), the moving party is entitled to
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`summary judgment if the pleadings, responses to discovery, and the record reveal “there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
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`law.” A genuine dispute of material fact exists “if the evidence is such that a reasonable jury
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`could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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`248 (1986). As the party seeking summary judgment, the plaintiff bears the initial responsibility
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`of informing this Court of the basis for its motion. See Celotex Corp. v. Catrett, 477 U.S. 317,
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`323 (1986). This requires that the plaintiff identify those portions of the “pleadings, depositions,
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`answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it
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`believes demonstrate the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323;
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`see also Anderson, 477 U.S. at 249.
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`Though the plaintiff bears this initial responsibility, the defendants, as the nonmoving
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`party, must then produce “specific facts showing that there is a genuine issue for trial.” Fed R.
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`Civ. P. 56(e); see Celotex, 477 U.S. at 324; Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-61
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`(1970). In satisfying this burden, the defendants must offer more than a mere “scintilla of
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`evidence” that a genuine dispute of material fact exists, Anderson, 477 U.S. at 252, or that there
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`is “some metaphysical doubt” as to material facts. Matsushita Elec. Indus. Co. v. Zenith Radio
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`Corp., 475 U.S. 574, 586 (1986). Rather, the defendants must produce evidence on which a jury
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`could reasonably find in their favor. See Matsushita, 475 U.S. at 587.
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`In considering the plaintiff’s motion for summary judgment, this Court construes all facts
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`and reasonable inferences in the light most favorable to the defendants as the nonmoving party.
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`See Miltier v. Beorn, 896 F.2d 848, 852 (4th Cir. 1990). Summary judgment is proper “[w]here
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`the record taken as a whole could not lead a rational trier of fact to find for the non-moving
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`party, there [being] no genuine issue for trial.” Matsushita, 475 U.S. at 587 (1986) (internal
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`quotations omitted). Conversely, “[s]ummary judgment in favor of the party with the burden of
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`persuasion . . . is inappropriate when the evidence is susceptible of different interpretations or
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`inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999).
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`a. Direct Infringement
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`DISCUSSION
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`Sater alleges that Waccamaw and Hostetler infringed its copyright when they constructed
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`the Waterton residence based on the 6804 design. “Architectural works” are included among the
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`copyrightable works of authorship listed in the Copyright Act. See 17 U.S.C. § 102(a)(8). “To
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`establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2)
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`copying of constituent elements of the work that are original.” Feist Publ’n, Inc. v. Rural Tel.
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`Serv. Co., 499 U.S. 340, 361 (1991) (“Feist”). Each of these elements is, in turn, composed of
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`various sub-parts.
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`1. Ownership of a Valid Copyright
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`There are several aspects to the element of ownership of a valid copyright. Most obvious
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`is the question of whether the claimed copyright is valid. Also included within this element is
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`the issue of originality. See 4-13 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
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`§ 13.01[A]; see also Custom Dynamics, L.L.C. v. Radiantz LED Lighting, Inc., 535 F. Supp. 2d
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`542, 551 (E.D.N.C. 2008) (noting that the ownership of a valid copyright prong consists of
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`several sub-elements, including originality). “Originality is a constitutional requirement” that
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`must exist in order for a work to qualify for copyright protection. Feist, 499 U.S. at 346; see
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`U.S. Const. art. I, § 8, cl. 8. Congress made this explicit through 17 U.S.C. § 102(a), which
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`provides that only “original works of authorship” may receive copyright protection.
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`The issuance of a certificate of registration by the United States Copyright Office has an
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`important effect on the first element of a copyright infringement case. Under 17 U.S.C. § 410(c),
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`a “certificate of a registration made before or within five years after first publication of the work
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`shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the
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`certificate.” In applying the language of 17 U.S.C. § 410(c), The Fourth Circuit Court of
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`Appeals has held that a certificate of copyright granted by the Copyright Office “is prima facie
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`proof of the validity of plaintiff’s copyright, including the existence of the elements of originality
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`and fixation.” M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 434 (4th Cir. 1986).
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`Furthermore, the Fourth Circuit has held that defendants who argue that a plaintiff’s work is not
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`copyrightable or lacks originality “have the burden of overcoming the presumption arising out of
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`the granting of the copyright by the Copyright Office.” Id; see also Universal Furniture Int’l,
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`Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 428 (4th Cir. 2010) (“When [a certificate of
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`registration] exists, the burden shifts to the defendant to prove that the claimed copyrights are
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`invalid.”); see generally 3-12 Nimmer on Copyright § 12.11[B] (“By reason of Section 410(c) of
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`the current Act, a copyright registration certificate creates a prima facie presumption as to the
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`validity of the copyright.”). However, “this presumption is fairly easy to rebut because the
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`Copyright Office tends toward cursory issuance of registrations.” Universal Furniture Int’l, 618
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`F.3d at 430.
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`Sater has produced a certificate of registration issued by the United States Copyright
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`Office for the 6804 plan. See Sater Aff. Ex. B, April 12, 2010 (Doc. # 98, Attach. 2). Dan F.
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`Sater, II, the President and CEO of The Sater Design Collection, Inc., also provides testimony
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`through an affidavit that he is the creator of the 6804 plan, that the 6804 design is an original
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`architectural plan, and that Sater Design is the owner of the 6804 plan. See Sater Aff. ¶¶ 4-6,
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`April 12, 2010 (Doc. # 98, Attach. 2). As a result, Sater has provided prima facie proof of the
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`validity of its copyright in the 6804 design. Therefore, the burden of overcoming this
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`presumption is shifted to Waccamaw and Hostetler, who concede this issue in their
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`memorandum in response to Sater’s motion for summary judgment, where they state that they do
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`“not dispute the plaintiff’s ownership of a valid copyright at this time.” Defs.’ Resp. in Opp’n to
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`Pl.’s Mot. for Summ. J. 2 (Doc. # 114). In addition, Waccamaw and Hostetler do not assert any
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`arguments or present any evidence to dispute the validity or originality of Sater’s copyright in
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`response to Sater’s motion. As a result, if ownership of a valid copyright were the only element
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`of a claim for copyright infringement, summary judgment in Sater’s favor on the issue of liability
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`would be appropriate at this time. See Celotex, 477 U.S. at 324 (holding that under Federal Rule
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`of Civil Procedure 56, once a moving a party informs this Court of the basis for its motion, a
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`non-moving party who bears the burden of proof on a dispositive issue must “go beyond the
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`pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and
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`admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”).
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`However, summary judgment based solely on this first element is not appropriate because there
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`is a second element that must be established before a party is liable for copyright infringement.2
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`2 Waccamaw and Hostetler assert a number of defenses in their answer to Sater’s amended complaint (Doc.
`# 58) related to the issues of validity and originality. Waccamaw and Hostetler allege in their Fourth Defense that
`the 6804 design is not sufficiently original to be entitled to copyright protection. They similarly assert in their Fifth
`Defense that the 6804 design is commonly known and commonly used to such an extent that it lacks a reasonable
`level of originality. Their Seventh Defense asserts that the elements of the 6804 design are “functional and/or
`common ideas of a general style, and therefore are not protected by copyright.” Their Twelfth Defense asserts that
`Sater’s copyright registration is “invalid, unenforceable and not capable of sustaining an infringement action.” Their
`Fourteenth Defense alleges that Sater’s “claims for infringement are barred to the extent plaintiff incorporated
`others’ works in its alleged ‘6804’ design and did not provide names of such others as contributors to the work, or
`did not otherwise procure the prior consent of said others.” Sater seeks summary judgment on these defenses. The
`Court concludes these may not be affirmative defenses but rather attempts to point out defects in Sater’s copyright
`infringement claim, more specifically the element of ownership of a valid copyright. See Zivkovic v. S. Cal. Edison
`Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (“A defense which demonstrates that plaintiff has not met its burden of
`proof is not an affirmative defense.”); In re Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir. 1988) (“A
`defense which points out a defect in the plaintiff’s prima facie case is not an affirmative defense.”); Tingley Sys.,
`Inc. v. HealthLink, Inc., 509 F. Supp. 2d 1209, 1220 (M.D. Fla. 2007) (considering a similar set of defenses to what
`Waccamaw and Hostetler assert and finding that such “defenses are essentially denials of the elements of [the
`plaintiff’s] claims, rather than true ‘affirmative defenses.’”). Because the Court does not grant summary judgment
`on the issue of liability or the sub-issue of ownership of a valid copyright, the Court also does not grant summary
`judgment on these asserted defenses at this stage.
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`2. Copying of Constituent Elements of the Work that Are Original
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`Sater also asserts that Waccamaw and Hostetler concede in their response to Sater’s
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`motion for summary judgment that they copied constituent elements of the 6804 design that are
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`original. Pl.’s Reply to Defs.’ Am. Resp. to Pl’s Mot. for Summ. J. 1 (Doc. # 116). However,
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`this Court finds that Waccamaw and Hostetler have not conceded this point. Rather Waccamaw
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`and Hostetler raise the issue by arguing in their response to the summary judgment motion and at
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`the hearing that “Waccamaw’s construction of the home was based off Qwest’s plans, not the
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`plaintiff’s plans.” Defs.’ Resp. in Opp’n to Pl.’s Mot. for Summ. J. 3 (Doc. # 114). In support of
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`this argument, they cite to Dietrich v. Standard Brands, Inc. where the United States District
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`Court for the Eastern District of Pennsylvania concluded that a genuine issue of material fact
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`existed over whether the defendant infringed the plaintiff’s copyright in certain slide rule
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`calculators. 32 F.R.D. 325 (E.D. Pa. 1963). The issues of fact that remained were whether the
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`plaintiff’s copyrighted work contained the requisite originality required for copyright protection
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`and whether the defendants’ calculators were designed, manufactured, and sold independent of
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`and without access to the plaintiff’s copyrighted calculators. Id. at 326-27. This Court
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`recognizes that the facts in this case are not completely analogous to the facts in Dietrich v.
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`Standard Brands, Inc. because the issue of the originality of Sater’s copyrighted work has not
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`been challenged and because Waccamaw and Hostetler do not dispute that Qwest had access to
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`the 6804 design. However, Waccamaw’s and Hostetler’s response to Sater’s motion for
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`summary judgment and their reference to Dietrich v. Standard Brands, Inc. suffice to show that
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`they do not concede but rather raise the issue of whether the Qwest design on which construction
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`of the Waterton residence was based copied the constituent original elements of the 6804 design.
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`This finding does not end the matter, however, as this Court must consider whether Sater
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`has argued and provided sufficient evidence at this stage to show there is not an issue of fact as
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`to whether Waccamaw and Hostetler copied the constituent elements of the 6804 design that are
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`original. This element of copyright infringement is commonly referred to simply as “copying”
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`and “can be proved by direct or circumstantial evidence.” Donald Frederick Evans & Assoc. v.
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`Cont’l Homes, Inc., 785 F.2d 897, 904 (11th Cir. 1986). Due to a lack of direct evidence,
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`copying is ordinarily “established by proof that the defendant had access to the plaintiff’s work
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`and produced a work that is substantially similar to the plaintiff’s work.” M. Kramer Mfg., 783
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`F.2d at 445. In its brief in support of its summary judgment motion, Sater quotes deposition
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`testimony demonstrating that Michael Alexander of Alexander Construction gave the 6804 plan
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`to Edith Neeves and her husband; that the plan was then given to Qwest to be modified; and that
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`Waccamaw and Hostetler ultimately used the modified plan to construct the Waterton residence.
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`Sater argues that in the face of this direct evidence of copying, the Court need not engage in a
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`test of substantial similarity. In support of its argument, Sater cites to M. Kramer
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`Manufacturing. Co. v. Andrews, where the Fourth Circuit stated that “[i]f there [is] clear proof of
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`actual copying by the defendants, that is the end of the case.”3 M. Kramer Mfg., 783 F.2d at 445.
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`The Court is not sufficiently persuaded that this is the proper analysis in light of the facts
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`of the case before the Court at this time. M. Kramer Manufacturing Co. v. Andrews involved the
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`question of whether the defendants infringed a copyright in a computer video poker game.
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`Although the Fourth Circuit made the above statement, the Court also examined the similarity
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`between the plaintiff’s game and the defendants’ game in concluding that an infringement had
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`3 The other cases Sater cites in support of its position—Donald Frederick Evans and Associates, Inc. v.
`Continental Homes, Inc., 785 F.2d 897 (11th Cir. 1986) and John Wieland Homes and Neighborhood, Inc. v.
`Poovey, No. 3:03CV168-H, 2004 WL 2108675 (W.D.N.C. 2004)—are not binding authority on this Court.
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`occurred even though it noted that significant direct evidence of copying existed. Id. at 445-47.
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`Furthermore, subsequent to the Fourth Circuit’s decision in M. Kramer Manufacturing Co. v.
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`Andrews, the Supreme Court decided Feist Publications, Inc. v. Rural Telephone Service Co.
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`(“Feist”), where it reasoned that “[n]ot all copying . . . is copyright infringement” in concluding
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`that although there was “no doubt” Feist took substantial information from the white pages of
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`Rural’s telephone directory, a question remained as to whether Feist copied “constituent
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`elements of the work that are original.” Feist, 499 U.S. at 361. Feist is arguably distinguishable
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`because the key issue in that case was whether Rural’s white pages had the requisite originality
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`necessary for copyright protection. However, Feist demonstrates that even in the face of direct
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`evidence of copying, it is necessary to show that the copier incorporated the constituent elements
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`of the copyrighted work that are original. Feist requires this Court to consider whether the
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`modified plan drawn by Qwest and on which Waccamaw based its construction of the Waterton
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`residence incorporated the constituent elements of the 6804 design, or in other words, whether
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`the Qwest design is substantially similar to the 6804 plan. See Universal Furniture Int’l, 618
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`F.3d at 436 (“[S]ubstantial similarity asks whether a defendant copied the ‘original elements’ of
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`a copyright.”).
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`Approaching the element of copying in this manner is supported by a leading treatise on
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`copyright law, which has described the different aspects of the element of copying illustrated by
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`the Feist decision as factual copying and actionable copying:
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`Two separate components actually underlie proof of copying, although few courts
`or commentators have historically differentiated among the different meanings of
`the term. First, there is the factual question whether the defendant, in creating its
`work, used the plaintiff's material as a model, template, or even inspiration. If the
`answer is “yes,” then one can conclude, as a factual proposition, that copying may
`have occurred. But the question still remains whether such copying is actionable.
`In other words, that first answer does not vouchsafe resolution of the legal
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`question whether such copying as took place gives rise to liability for
`infringement.
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`4-13 Nimmer on Copyright § 13.01[B]. For copying to exist as a legal proposition, it is
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`necessary to consider “whether the defendant’s work is substantially similar to the plaintiff’s
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`work such that liability may attach.” Id. This approach is supported by case law from other
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`circuits. See Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 813 (1st Cir. 1995) (“To show
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`actionable copying and therefore satisfy Feist’s second prong, a plaintiff must first prove that the
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`alleged infringer copied plaintiff’s copyrighted work as a factual matter; to do this, he or she may
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`either present direct evidence of factual copying or, if that is unavailable, evidence that the
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`alleged infringer had access to the copyrighted work and that the offending and copyrighted
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`works are so similar that the court may infer that there was factual copying . . . . The plaintiff
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`must then prove that the copying of copyrighted material was so extensive that it rendered the
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`offending and copyrighted works substantially similar.” (citations omitted)); Gates Rubber Co. v.
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`Bando Chem. Indus., 9 F.3d 823, 832 (10th Cir. 1993) (“Once the plaintiff has shown that it
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`holds a valid copyright, it must next prove that the defendant unlawfully appropriated protected
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`portions of the copyrighted work. This question involves two separate inquiries: 1) whether the
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`defendant, as a factual matter, copied portions of the plaintiff’s program; and 2) whether, as a
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`mixed issue of fact and law, those elements of the program that have been copied are protected
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`expression and of such importance to the copied work that the appropriation is actionable.”). As
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`the authors of the aforementioned treatise on copyright law note, even in a situation where a
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`“defendant admits copying or witnesses are available who actually viewed the act of copying, . . .
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`copying as a legal proposition must still be established; hence substantial similarity remains an
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`indispensible element of plaintiff’s proof.” 4-13 Nimmer on Copyright § 13.01[B] (collecting
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`cases); see also Sturdza v. Gov’t of the United Arab Emirates, 281 F.3d 1287, 1295 (D.C. Cir.
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`2002) (“The plaintiff must show not only that the defendant actually copied the plaintiff’s work,
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`but also that the defendant’s work is ‘substantially similar’ to protectible elements of the
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`plaintiff’s work.”); Boisson v. Banian, Ltd., 273 F.3d 262, 267-68 (2d Cir. 2001) (reasoning that
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`the element of copying consists of two parts—actual copying and substantial similarity); Leigh v.
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`Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir. 2000) (“No matter how the copying is
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`proved, the plaintiff also must establish specifically that the allegedly infringing work is
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`substantially similar to the plaintiff’s work with regard to its protected elements.”); Eng’g
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`Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1340-41 (5th Cir. 1994) (reasoning
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`that two “components underlie proof of actionable copying” and that these components are (1)
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`“whether the alleged infringer actually used the copyrighted material” and (2) “whether there is
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`substantial similarity”). Similarly, while Judge Learned Hand once reasoned that “no plagiarist
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`can excuse the wrong by showing how much of his work he did not pirate,” Sheldon v. Metro-
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`Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936), courts have also held that “a defendant
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`may legitimately avoid infringement by intentionally making sufficient changes in a work that
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`would otherwise be regarded as substantially similar to plaintiff’s.” 4-13 Nimmer on Copyright
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`§ 13.03[B][1][b] (collecting cases); see also Leigh, 212 F.3d at 1214 (“Even in the rare case of a
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`plaintiff with direct evidence that a defendant attempted to appropriate his original expression,
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`there is no infringement unless the defendant succeeded to a meaningful degree.”); Saturday
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`Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1198-99 (7th Cir. 1987) (“[A
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`copyright] forbids copying the copyrighted work without the copyright holder’s permission, but
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`it does not forbid the making of close substitutes. So long as the second comer creates a work
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`that is not substantially similar to the copyrighted features of the first work, there is no
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`4:08-cv-04133-TLW Date Filed 02/14/11 Entry Number 122 Page 13 of 23
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`infringement.”); Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498, 501 (2d Cir. 1982)
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`(quoting Warner Bros., Inc. v. Am. Broad. Co., 654 F.2d 204, 211 (2d Cir. 1981) (“Even if an
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`alleged copy is based on a copyrighted work, ‘a defendant may legitimately avoid infringement
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`by intentionally making sufficient changes in a work which would otherwise be regarded as
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`substantially similar to that of the plaintiff’s.’”). Cases involving architectural works are no
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`different in that some courts have concluded that even in the face of direct evidence of factual
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`copying, parties are not liable for copyright infringement if substantial similarity is missing. See
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`Howard v. Sterchi, 974 F.2d 1272, 1275-76 (11th Cir. 1992); Lifetime Homes, Inc. v. Walker
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`Homes, Inc., 485 F. Supp. 2d 1314, 1320 (M.D. Fla. 2007); John Alden Homes, Inc. v. Kangas,
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`142 F. Supp. 2d 1338, 1344-45 (M.D. Fla. 2001).
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`
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`In the two cases Sater cites with facts analogous to the case at hand—Home Design
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`Services, Inc. v. Eber, No. 3:08cv257/LAC/MD, 2009 WL 2913486 (N.D. Fla. Sept. 8, 2009)
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`(“Eber”) and Axelrod & Cherveny Architects, P.C. v. Winmar Homes, No. 2:05-cv-711-ENV-
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`ETB, 2007 WL 708798 (E.D.N.Y. Mar. 6, 2007)—the builder was found liable for copyright
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`infringement. In Axelrod & Cherveny Architects, the court analyzed substantial similarity and
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`found it existed. Axelrod & Cherveny Architects, 2007 WL 708798, at *13-14. However, Eber,
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`in particular, is similar to this case because the builder argued it did not know or should have
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`known the origin of the plan used to construct the house. Eber, 2009 WL 2913486, at *6. Even
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`though the court found the builder liable, Eber is arguably distinguishable because the builder in
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`that case did not raise the issue of whether the plan it used to build the structure copied
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`constituent elements of the copyrighted work that are original. Id. at *4. Here, the Court finds
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`that Waccamaw and Hostetler have raised this issue.
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`Sater asserts that if the Court finds it necessary to consider whether the Qwest plan and
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`6804 plan are substantially similar, it need only perform a brief comparison of the two plans to
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`conclude that they are indeed substantially similar. While the Court has examined the two plans,
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`it chooses not reach a finding of substantial similarity at this stage because of the lack of detailed
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`analysis and clear evidence in the record as to the similarities between the plans and the standard
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`that should be applied when comparing them. Cf. Howard, 974 F.2d at 1276 (reasoning that
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`when residential architectural plans are involved, “modest dissimilarities are more significant
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`than they may be in other types of art works”). This Court notes that Sater has made a
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`compelling argument regarding strict liability. Substantial case law supports this position as
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`discussed in the succeeding paragraph. It is only on this issue of substantial similarity that
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`Waccamaw and Hostetler are able to avoid summary judgment with respect to liability for
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`copyright infringement.
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`
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`Assuming that the Qwest plan infringed Sater’s copyright, Waccamaw and Hostetler may
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`have difficulty avoiding liability by asserting they did not know they were infringing Sater’s
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`copyright by using the Qwest design to build the Waterton residence. Case law establishes that
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`knowledge or intent is not an element of copyright infringement. See Buck v. Jewell-La Salle
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`Realty Co., 283 U.S. 191, 198 (1931) (“Intention to infringe is not essential under the Act.”);
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`Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1113 (2d Cir. 1986) (“Even an
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`innocent infringer is liable for infringement[;] . . . intent or knowledge is not an element of
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`infringement.”); American Press Ass’n v. Daily Story Pub. Co., 120 F. 766, 769 (7th Cir. 1902)
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`(“It is not material . . . that the appellant . . . was not aware that the story was protected by
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`copyright. It published it at its peril, and ignorance will not avail.”); Playboy Enter., Inc. v.
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`Frena, 839 F. Supp. 1552, 1559 (M.D. Fla. 1993) (“Intent or knowledge is not an element of
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`4:08-cv-04133-TLW Date Filed 02/14/11 Entry Number 122 Page 15 of 23
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`infringement, and thus even an innocent infringer is liable for infringement.”) This principle has
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`also been applied in the context of a builder who uses a copyrighted design. See Eber, 2009 WL
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`2913486, at *4; Axelrod & Cherveny Architects, 2007 WL 708798, at *7. It is based on the idea
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`that “‘as between two innocent parties (i.e., the copyright owner and the innocent infringer) it is
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`the latter who should suffer since he, unlike the copyright owner, either has an opportunity to
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`guard against the infringement by diligent inquiry, or at least the abil