Appendix
`Appendix
`
`

`

`APPENDIX CONTENTS
`
`
`
`Panel Opinion of the U.S. Court of Appeals for the Eighth
`Circuit (Aug. 19, 2021)
`
`Summary-Judgment Order of the U.S. District Court for
`the Western District of Missouri (Oct. 10, 2019)
`
`Fee Order of the U.S. District Court for the Western
`District of Missouri (Dec. 13, 2019)
`
`Order Denying Rehearing of the U.S. Court of Appeals for
`the Eighth Circuit (Oct. 19, 2021)
`
`
`
`
`Page
`
`1a
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`
`8a
`
`
`16a
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`21a
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`
`

`

`1a
`
`United States Court of Appeals
`For the Eighth Circuit
`___________________________
`
`No. 19-3458
`___________________________
`
`Designworks Homes, Inc., a Missouri corporation; Charles Lawrence James
`
` Plaintiffs - Appellants
`
`v.
`
`Thomson Sailors Homes, L.L.C., a Kansas L.L.C.; Thomson Homes, L.L.C.;
`Donald Sailors; Edward B. Thomson, III; Team 3 Architects, Inc.; Bruce H.
`Beatty; Bobby Sailors; Eric Bradley Thomson; Elswood Smith Carlson, P.A.
`
` Defendants - Appellees
`____________
`
`Appeal from United States District Court
`for the Western District of Missouri - Kansas City
`____________
`
`Submitted: June 15, 2021
`Filed: August 19, 2021
`____________
`
`
`Before GRUENDER, ARNOLD, and STRAS, Circuit Judges.
`____________
`
`
`STRAS, Circuit Judge.
`
`Designworks Homes, Inc., thinks that a group of architects and other builders
`
`copied one of its home designs. It also believes that, even if there was no copyright
`
`Appellate Case: 19-3458 Page: 1 Date Filed: 08/19/2021 Entry ID: 5067022
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`

`

`2a
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`violation, it should not have to reimburse the alleged infringers for their attorney
`fees and costs. The district court1 disagreed on both points, and so do we.
`
`
`I.
`
`
`Charles James built a house on Melrose Drive in Columbia, Missouri. The
`
`house, just like two others built in the area, has a two-story “triangular atrium design
`with stairs as part of the main room.” Many years later, Designworks registered the
`design as a copyrighted architectural work.
`
`Another firm, Thomson Sailors Homes, L.L.C., also used a triangular-atrium
`
`design in what it called the Newbury Model. Designworks believes that everyone
`involved in the design and promotion of the Newbury Model, including those who
`displayed it in brochures, infringed on its copyright. See 17 U.S.C. § 102(a)(8)
`(extending copyright protection to “architectural works”).
`
`At summary judgment, the district court did not see things the same way. It
`
`concluded that the Newbury Model was not a copy of the original Melrose home. It
`also decided to award over $400,000 in attorney fees and costs to Thomson Sailors
`and the other defendants. See id. § 505. The reason: Designworks’ “litigating
`position was unreasonable and . . . [its] pursuit of the case was, at best, frivolous in
`nature and, at worst, done in bad faith.”
`
`
`II.
`
`
`We review the district court’s decision to grant summary judgment de novo.
`
`See Warner Bros. Ent., Inc. v. X One X Prods., 644 F.3d 584, 591 (8th Cir. 2011).
`Summary judgment was appropriate “if the evidence, viewed in the light most
`
`1The Honorable Stephen R. Bough, United States District Judge for the
`Western District of Missouri.
`
`
`-2-
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`Appellate Case: 19-3458 Page: 2 Date Filed: 08/19/2021 Entry ID: 5067022
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`

`

`3a
`
`favorable to [Designworks], demonstrates that there is no genuine issue of material
`fact and that [Thomson Sailors was] entitled to judgment as a matter of law.” Id.
`(internal quotation marks omitted).
`
`To prevail on its copyright claims, Designworks had to prove that Thomson
`
`Sailors copied its design. See Taylor Corp. v. Four Seasons Greetings, LLC, 403
`F.3d 958, 964 (8th Cir. 2005). It had no direct evidence, so it attempted to make its
`case indirectly by showing that Thomson Sailors had access to the Melrose house
`and then designed and built “substantially similar” homes. Id. at 966–67.
`
`Substantial similarity incorporates two concepts. First, there must be
`
`similarity of ideas, which must be “evaluated extrinsically, focusing on [the]
`objective similarities . . . of the works.” Rottlund Co. v. Pinnacle Corp., 452 F.3d
`726, 731 (8th Cir. 2006). Second, if the ideas are similar, they must be similarly
`expressed, meaning that an “ordinary, reasonable person” would think that “the total
`concept and feel of the [designs] in question are substantially similar.”2 Hartman v.
`Hallmark Cards, Inc., 833 F.2d 117, 120–21 (8th Cir. 1987) (referring to this as “the
`intrinsic test”). Without similarity in ideas and expression, there is no infringement.
`See id. at 120.
`
`After “compar[ing] [the] works,” id. (second alteration in original) (quoting
`
`O’Neill v. Dell Publ’g Co., 630 F.2d 685, 690 (1st Cir. 1980)), we agree with the
`district court that substantial similarity in expression is missing here. The Melrose
`house, which was built first, has a roughly rectangular floorplan, except for a large
`diamond-shaped great room. See Appendix. The corners of the great room intersect
`the rear wall and, as the floor plan of the home shows, half of the diamond extends
`
`
`2Even if the district court misstated the standard for evaluating similarity, as
`Designworks argues, “[we] may [still] affirm.” Wierman v. Casey’s Gen. Stores,
`638 F.3d 984, 1002 (8th Cir. 2011). The reason, of course, is that our review of a
`grant of summary judgment is de novo.
`
`-3-
`
`Appellate Case: 19-3458 Page: 3 Date Filed: 08/19/2021 Entry ID: 5067022
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`

`

`4a
`
`from the back of the house in the form of an isosceles right triangle with 20-foot
`legs. Id. Along the wall forming the far-left side of the diamond is a stairway leading
`down to a similarly shaped room on the lower level. Id. The stairway, which is open
`and has large windows above it, is what creates the “triangular atrium.” Id.
`
`The Newbury Model also has a two-story “triangular atrium” consisting of
`
`large windows and stairs, but the similarities end there. Id. The walls forming the
`legs of the triangle on the Newbury Model, for example, are roughly 10 feet long,
`not 20. Id. It has two flights of stairs, not just one, with a landing at the triangle’s
`point, rather than having the stairs run along a single wall like they do in the Melrose
`house. Id. The adjoining room is also rectangular and oriented in line with the other
`rooms, not a diamond with sides at a 45° angle to them. Id. So even if one feature
`of both designs is a triangular atrium, there are plenty of differences, from the size
`of the atriums themselves to how they are integrated with the rest of the house, with
`each having rooms and stairways of differing shapes, sizes, and orientations.
`
`To an “ordinary, reasonable person” viewing both designs, “the total concept
`
`and feel of the” homes would not appear “substantially similar.” Hartman, 833 F.2d
`at 120–21; see also Taylor Corp., 403 F.3d at 966 (explaining that the focus should
`be on “the work[] taken as a whole”). In summary-judgment terms, our conclusion
`is the same as the district court’s: “the works are so dissimilar that ‘reasonable minds
`could not differ as to the absence of substantial similarity in expression.’” Hartman,
`833 F.2d at 120 (emphasis added) (quoting Litchfield v. Spielberg, 736 F.2d 1352,
`1355–56 (9th Cir. 1984)).
`
`
`III.
`
`
`After granting summary judgment, the district court had the discretion to order
`
`Designworks to pay Thomson Sailors’s “full costs,” including “a reasonable
`attorney’s fee.” 17 U.S.C. § 505. In deciding whether to make an award, the court
`had to “giv[e] substantial weight to the reasonableness of [Designworks’] litigating
`
`-4-
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`Appellate Case: 19-3458 Page: 4 Date Filed: 08/19/2021 Entry ID: 5067022
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`

`

`5a
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`position [and] . . . tak[e] into account all other relevant factors,” Kirtsaeng v. John
`Wiley & Sons, Inc., 136 S. Ct. 1979, 1989 (2016), including “frivolousness,
`motivation, . . . compensation[,] and deterrence,” Pinkham v. Camex, Inc., 84 F.3d
`292, 294 (8th Cir. 1996) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19
`(1994)).
`
`Many of these factors played a prominent role in the district court’s decision
`
`to award fees and costs to Thomson Sailors and the other defendants. The court’s
`order emphasized how unreasonable Designworks’ litigating position had been,
`from completely failing to address the “significant objective differences” between
`the designs to producing nothing more than speculative evidence that anyone
`associated with Thomson Sailors had accessed the Melrose house. The court even
`wondered whether Designworks’ goal all along was to run up Thomson Sailors’s
`costs and then extract a large settlement. Designworks may well disagree with these
`inferences and how the court weighed the relevant factors, but we cannot say that its
`decision to award fees and costs was an abuse of discretion.3 See Killer Joe Nev.,
`LLC v. Doe, 807 F.3d 908, 912–13 (8th Cir. 2015).
`
`To be sure, the district court was wrong to say that attorney fees “are the rule
`
`rather than the exception and should be awarded routinely” in cases like this one.
`(Emphasis added) (quoting Little Mole Music v. Spike Inv., Inc., 720 F. Supp. 751,
`757 (W.D. Mo. 1989)). The Copyright Act itself makes clear that the decision lies
`within the court’s discretion, and an approach that awarded fees “automatic[ally]”
`or by default “would pretermit the exercise of that discretion.” Fogerty v. Fantasy,
`Inc., 510 U.S. 517, 533 (1994).
`
`
`
`3Designworks may not challenge the size of the award for the first time on
`appeal. It did not object to any of the specific items in Thomson Sailors’s request
`before, so it cannot do so now. See Great Plains Real Estate Dev., L.L.C. v. Union
`Cent. Life Ins., 536 F.3d 939, 947 (8th Cir. 2008).
`
`-5-
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`

`

`6a
`
`Despite the misstatement, we are convinced that the district court knew it had
`
`discretion and exercised it properly. After all, it identified the relevant factors and
`then explained why they weighed in favor of an award. There is nothing to suggest,
`in other words, that it gave “significant weight” to an “improper factor.” Killer Joe,
`807 F.3d at 911 (quotation marks omitted).
`
`
`IV.
`
`
`
`
`
`We accordingly affirm the judgment of the district court.
`
`
`Melrose house floor plan:
`
`APPENDIX.
`
`
`
`-6-
`
`
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`Appellate Case: 19-3458 Page: 6 Date Filed: 08/19/2021 Entry ID: 5067022
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`

`

`7a
`
`R. Doc. 133-15, at 8 (cropped and rotated).
`
`Newbury Model floor plan:
`
`R. Doc. 133-9, at 4 (cropped and rotated).
`______________________________
`
`
`
`-7-
`
`
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`Appellate Case: 19-3458 Page: 7 Date Filed: 08/19/2021 Entry ID: 5067022
`
`

`

`Plaintiffs,
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`THOMSON SAILORS HOMES, LLC., et al.,
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Case No. 18-0189-CV-W-SRB
`
`8a
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF MISSOURI
`WESTERN DIVISION
`
`
`DESIGNWORKS HOMES, INC., et al.,
`
`
`
`ORDER
`
`
`
`Before the Court is Defendants’ Motion for Summary Judgment. (Doc. #131). For the
`
`reasons discussed below, the Motion is GRANTED.
`
`I.
`
`Legal Standard
`
`Federal Rule of Civil Procedure 56(a) requires a court to grant a motion for summary
`
`judgment if 1) the moving party “shows that there is no genuine dispute of material fact” and 2)
`
`the moving party is “entitled to judgment as a matter of law.” A nonmoving party survives a
`
`summary judgment motion if the evidence, viewed in the light most favorable to the nonmoving
`
`party, is “such that a reasonable jury could return a verdict for the nonmoving party.” Stuart C.
`
`Irby Co. v. Tipton, 796 F.3d 918, 922 (8th Cir. 2015) (quoting Anderson v. Liberty Lobby, Inc.,
`
`477 U.S. 242, 248 (1986)). The purpose of summary judgment “is not to cut litigants off from
`
`their right of trial by jury if they really have issues to try.” Hughes v. Am. Jawa, Ltd., 529 F.2d
`
`21, 23 (8th Cir. 1976) (internal quotation marks omitted) (quoting Poller v. Columbia
`
`Broadcasting Sys., Inc., 368 U.S. 464, 467 (1962)).
`
`
`
`
`
`
`
`Case 4:18-cv-00189-SRB Document 137 Filed 10/10/19 Page 1 of 8
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`

`

`9a
`
`
`
`II.
`
`Background
`
`Considering the parties’ statements of facts and supporting evidence in the light most
`
`favorable to Plaintiffs as the non-moving party, the Court finds the relevant facts to be as
`
`follows:
`
`Plaintiff Charles Lawrence James is the sole shareholder and home designer for Plaintiff
`
`Designworks Homes, Inc., a design-build company. In 1996, Plaintiff James designed and built
`
`a home that had a “unique triangular atrium design with stairs as part of the main room” at 4306
`
`Melrose in Columbia, Missouri. (Doc. #51, p. 4). In 1999, Plaintiff James built a second home
`
`that incorporated the triangular atrium design at 1713 Kenilworth in Columbia, Missouri.
`
`Between 1999 and 2001, Plaintiff James built a third house featuring the triangular atrium design
`
`at 4804 Chilton in Columbia, Missouri. On May 10, 2004, Plaintiffs registered the triangular
`
`atrium design as a copyrighted architectural work titled “Atrium ranch on walk-out; Angular
`
`atrium ranch” with respect to the home constructed at 4804 Chilton Court. (Doc. #51, p. 4). On
`
`June 6, 2013, Plaintiffs registered the design as a copyrighted architectural work for a house not
`
`yet constructed. On April 22, 2018, Plaintiff James registered the design as a copyrighted
`
`technical drawing with respect to the home at 4306 Melrose Drive. Also, on April 22, 2018,
`
`Plaintiff James registered the design as a copyrighted technical drawing with respect to the home
`
`at 1713 Kenilworth in Columbia, Missouri.
`
`On September 8, 1998, Defendant Elswood Smith Carlson Architects, P.A. created an
`
`architectural design that included a triangular atrium feature with stairs adjacent to a living room,
`
`known as the Newbury Model. Plaintiffs allege the Newbury Model infringes their copyrights.
`
`Plaintiffs allege Defendant Thomson Sailors Homes, LLC (“Thomson Sailors Homes”)1
`
`
`1 Defendants Donald Sailors, Bobby F. Sailors, and Edward B. Thomson, III are former members of Thomson
`Sailors Homes. Defendant Eric Bradley Thomson was a superintendent for Thomson Sailors Homes.
`2
`
`
`
`Case 4:18-cv-00189-SRB Document 137 Filed 10/10/19 Page 2 of 8
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`

`

`10a
`
`
`
`subsequently built thirty-five Newbury Model homes in a development in Kansas City, Missouri,
`
`that also infringed on Plaintiffs’ copyrights. Plaintiffs allege Thomson Homes, LLC (“Thomson
`
`Homes”)2 is the successor-in-interest of Thomson Sailors Homes and thus liable as a successor,
`
`and also independently liable for the copying and distribution of a brochure that depicted the
`
`allegedly infringing Newbury Model homes. Plaintiffs allege Defendant Team 3 Architects, Inc.
`
`(“Team 3 Architects”)3 created and distributed the allegedly infringing Newbury Model house
`
`plan to Thomson Sailors Homes and/or Thomson Homes. Plaintiffs allege Thomson Sailors
`
`Homes, Team 3 Architects, and Elswood Smith Carlson all put copyright notices on the
`
`Newbury Model in violation of U.S. copyright laws.
`
`Plaintiffs’ First Amended Complaint sets forth five claims: (1) copyright infringement,
`
`Count I; (2) contributory infringement, Count II; (3) vicarious infringement, Count III; (4)
`
`accounting against Defendants Thomson Homes and Thomson Sailors Homes only, Count IV;
`
`and (5) declaratory and/or injunctive relief, Count V. All claims relate to the copyrighted
`
`triangular atrium design with stairs as part of the main room. Defendants move for summary
`
`judgment on all counts, arguing: (1) Defendants could not have infringed three of the four
`
`copyrighted works asserted by Plaintiffs because such works were created after the Newbury
`
`Model was created; (2) Plaintiffs cannot prove copying of the remaining copyrighted work; and
`
`(3) Plaintiffs are not entitled to damages.
`
`III. Discussion
`
`Defendants argue initially they could not have infringed the copyrighted works
`
`corresponding with 1713 Kenilworth, 4804 Chilton, or the house not yet constructed, because
`
`
`2 Defendant Edward B. Thomson, III was the sole member and founder of Thomson Homes. Defendant Eric
`Bradley Thomson was a superintendent for Thomson Homes.
`3 Defendant Bruce H. Beatty is the sole shareholder of and an architect for Team 3 Architects.
`3
`
`
`
`Case 4:18-cv-00189-SRB Document 137 Filed 10/10/19 Page 3 of 8
`
`

`

`11a
`
`
`
`Defendants created the Newbury Model before those works were constructed. Plaintiffs argue
`
`that Defendants constructed houses that infringed on Plaintiffs’ design after substantial
`
`completion of construction of the houses at 1713 Kenilworth and 4804 Chilton, which
`
`incorporated the same triangular atrium design and were derivative of the original design as
`
`constructed at 4306 Melrose. The Court finds it unnecessary to engage in such analysis because
`
`all parties agree that all claims in this case hinge on whether Defendants infringed on Plaintiffs’
`
`copyrighted triangular atrium design with stairs as part of the main room. The Court will focus
`
`its discussion on whether Plaintiffs can prove Defendants infringed on that design.
`
`
`
`To establish their claim of copyright infringement, Plaintiffs are “required to prove
`
`ownership of a valid copyright and copying of original elements.” Rottlund Co. v. Pinnacle
`
`Corp., 452 F.3d 726, 731 (8th Cir. 2006) (internal citation and quotation marks omitted).
`
`“Copying may be established . . . by showing that the defendants had access to the copyrighted
`
`materials and showing that substantial similarity of ideas and expression existed between the
`
`alleged infringing materials and the copyrighted materials.” Id. (internal citation omitted).
`
`“Determination of substantial similarity involves a two-step analysis[.]” Id. (citing Hartman v.
`
`Hallmark Cards, Inc., 833 F.2d 117, 120 (8th Cir. 1987)). “Similarity of ideas is evaluated
`
`extrinsically, focusing on objective similarities in the details of the works.” Id. “If the ideas are
`
`substantially similar, then similarity of expression is evaluated using an intrinsic test depending
`
`on the response of the ordinary, reasonable person to the forms of expression.” Id. (internal
`
`citation and quotation marks omitted).
`
`
`
`The parties do not dispute the validity of Plaintiffs’ copyrights. The parties dispute
`
`whether Defendants copied Plaintiffs’ design.4
`
`
`4 Plaintiffs argue that Defendants’ multiple copyright notices on the Newbury Model are unlawful because “[i]t is a
`legal impossibility that [Thomson Sailors Homes] and [Team 3 Architects] had the legal right to put copyright
`4
`
`
`
`Case 4:18-cv-00189-SRB Document 137 Filed 10/10/19 Page 4 of 8
`
`

`

`12a
`
`
`
`A. Access
`
`Access can be established “by showing that the defendants had an opportunity to view or
`
`to copy” Plaintiffs’ work. Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 942 (8th Cir.
`
`1992) (internal citation and quotation marks omitted). “Establishing a ‘bare possibility’ of
`
`access is not enough; rather, [Plaintiffs] must prove that [Defendants] had a ‘reasonable
`
`possibility’ of viewing [their] work.” Id. (internal citation omitted). “There must be some
`
`evidence from which the jury could determine that [Defendants were] able to view [the
`
`copyrighted work].” Infogroup, Inc. v. DatabaseUSA.com LLC, No. 8:14-CV-49, 2018 WL
`
`6624217, at *10 (D. Neb. Dec. 18, 2018) (applying Moore standard).
`
`Plaintiffs’ speculation that Defendants “had possible access to the Plaintiffs’ architectural
`
`work” simply because the property was “easily accessible from the public-right-away [sic]” and
`
`because Plaintiffs advertised the homes during construction amounts to no more than a bare
`
`possibility of access, which is not enough. (Doc. #134, pp. 50–51). Plaintiffs offer no evidence
`
`that any of the Defendants viewed Plaintiffs’ homes. Plaintiffs also assert that their copyrighted
`
`design won awards in Columbia, Missouri, but offer no evidence that any of the Defendants
`
`knew of the awards or learned of Plaintiffs’ design based on the awards. Plaintiffs argue that
`
`Defendants could have viewed Plaintiffs’ design at an open house, but Plaintiff James admits he
`
`does not know whether any of the Defendants attended any open houses, could not recall seeing
`
`them there, and did not produce the sign-in sheets he claimed to have kept from the open houses.
`
`The cases in which a plaintiff has demonstrated a defendant had access to copyrighted
`
`work involve some circumstantial evidence of a reasonable possibility of viewing the plaintiff’s
`
`
`notices on the plans if the copyright was owned by [Elswood Smith Carlson Architects].” (Doc. #134, p. 47)
`(footnote omitted). This argument has no bearing on whether Defendants infringed on Plaintiffs’ copyrighted
`works.
`
`
`
`Case 4:18-cv-00189-SRB Document 137 Filed 10/10/19 Page 5 of 8
`
`5
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`

`

`13a
`
`
`
`work. See, e.g., Kootenia Homes, Inc. v. Reliable Homes, Inc., No. CIV. 00-1117ADMAJB,
`
`2002 WL 15594, at *5 (D. Minn. Jan. 3, 2002) (finding reasonable possibility of access where
`
`defendant toured plaintiff’s home that was subject to copyright); Moore, 972 F.2d at 943 (finding
`
`reasonable possibility of access where an ongoing relationship between individuals associated
`
`with plaintiff and defendant existed); Sullivan v. Prince, No. 3:09CV0009 JMM, 2010 WL
`
`330351, at *3 (E.D. Ark. Jan. 20, 2010) (finding reasonable possibility of access where
`
`Defendant possessed a “sketch” of copyrighted house plan). Here, Plaintiffs have no
`
`circumstantial evidence showing a reasonable possibility that Plaintiffs viewed Defendants’
`
`copyrighted work; therefore, Plaintiffs cannot prove Defendants had access to Plaintiffs’
`
`triangular atrium design.
`
`B. Similarity
`
`Plaintiffs argue that even if they cannot prove access, access can be inferred if Plaintiffs
`
`can prove the “similarity between the original and the copy is so striking as to preclude any
`
`possibility of independent creation.” Moore, 972 F.2d at 941 n.1. Courts find striking similarity
`
`in cases in which two designs are nearly identical. See, e.g., Thimbleberries, Inc. v. C & F
`
`Enters., Inc., 142 F. Supp. 2d 1132, 1140 (D. Minn. 2001) (finding striking similarity between
`
`wreath-shaped quilt patterns that were “for all practical purposes, identical”); Midway Mfg. Co.
`
`v. Dirkschneider, 543 F. Supp. 466, 482–83 (D. Neb. 1981) (finding striking similarity between
`
`video games that were “virtually identical,” “in virtually every detail”).
`
`An “architectural work,” subject to copyright protection is defined as “the design of a
`
`building as embodied in any tangible medium of expression, including a building, architectural
`
`plans, or drawings.” 17 U.S.C. § 101. The protected work “includes the overall form as well as
`
`the arrangement and composition of spaces and elements in the design, but does not include
`
`
`
`Case 4:18-cv-00189-SRB Document 137 Filed 10/10/19 Page 6 of 8
`
`6
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`

`

`14a
`
`
`
`individual standard features.” Id.; see also 17 U.S.C. § 102(b) (“In no case does copyright
`
`protection for an original work of authorship extend to any idea . . . regardless of the form in
`
`which it is described, explained, illustrated, or embodied in such work.”).
`
`Plaintiffs are unable to prove substantial similarity, let alone striking similarity. There
`
`are objective differences in the details of Plaintiffs’ and Defendants’ works. Plaintiffs describe
`
`their copyrighted design as a triangular atrium design with stairs as part of the main room.
`
`Plaintiffs’ design includes a diamond-shaped great room with a straight staircase to the
`
`basement. The great room is positioned at a forty-five-degree angle to the rest of the house. The
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`stairs are integrated as part of the great room, or parallel to the wall in the great room that is
`
`opposite the staircase. In contrast, Defendants’ design includes an offset triangular atrium that is
`
`adjacent to, not part of, a rectangular living room, and an angled staircase to the basement. The
`
`staircase forms the triangular shape and protrudes out from the living room. Further, Plaintiffs’
`
`diamond-shaped great room is significantly larger than Defendants’ triangular atrium design at
`
`the end of living room. Accordingly, the arrangement of spaces and elements in the design is not
`
`substantially, let alone strikingly, similar. § 101; see also Howard v. Sterchi, 974 F.2d 1272,
`
`1276 (11th Cir. 1992) (“In architectural plans . . . , modest dissimilarities are more significant
`
`than they may be in other types of art works.”). Plaintiffs’ copyright does not extend to the idea
`
`of a triangular-shaped atrium, but to the particular arrangement and composition of the great
`
`room and stairwell designed by Plaintiff. § 102(b). Plaintiffs have failed to demonstrate striking
`
`similarity between Defendants’ and Plaintiffs’ works.
`
`
`
`
`
`
`
`
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`Case 4:18-cv-00189-SRB Document 137 Filed 10/10/19 Page 7 of 8
`
`7
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`

`

`15a
`
`
`
`IV. Conclusion
`
`Accordingly, Defendants’ Motion for Summary Judgment (Doc. #131) is GRANTED.
`
`Because Plaintiffs cannot prove Defendants infringed on their copyrighted design, summary
`
`judgment is granted on all claims. Defendants also filed a Joint Motion to Strike Plaintiff’s
`
`Declaration (Doc. #136). The Court did not reach the damage-related issues contemplated in the
`
`Motion to Strike. Accordingly, Defendants’ Joint Motion to Strike Plaintiff’s Declaration (Doc.
`
`#136) is DENIED as moot.
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`IT IS SO ORDERED.
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`DATE: October 10, 2019
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`/s/ Stephen R. Bough
`STEPHEN R. BOUGH, JUDGE
`UNITED STATES DISTRICT COURT
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`Case 4:18-cv-00189-SRB Document 137 Filed 10/10/19 Page 8 of 8
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`8
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`Plaintiffs,
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`v.
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`THOMSON SAILORS HOMES, LLC., et al.,
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`Defendants.
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`Case No. 18-0189-CV-W-SRB
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`16a
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF MISSOURI
`WESTERN DIVISION
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`DESIGNWORKS HOMES, INC., et al.,
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`ORDER
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`Before the Court is Defendants’ Motion for Attorneys’ Fees and Full Costs (Doc. #148)
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`and Defendants’ Motion for Attorneys’ Fees and Full Costs (Doc. #154). For reasons discussed
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`below the Motions are GRANTED.
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`I.
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`Background
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`Plaintiff Charles Lawrence James is the sole shareholder and home designer for Plaintiff
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`Designworks Homes, Inc., a design-build company. Plaintiff James designed and built homes
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`that had a “unique triangular atrium design with stairs as part of the main room” in Columbia,
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`Missouri. (Doc. #51, p. 4). Plaintiffs registered the triangular atrium design as a copyrighted
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`work. Defendants created an architectural design that included a triangular atrium feature with
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`stairs adjacent to a living room, built houses incorporating the design, and distributed a brochure
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`depicting the design. Plaintiffs filed the underlying action against Defendants for allegedly
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`infringing on their copyright. The Court granted summary judgment in favor of Defendants,
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`finding Plaintiffs presented no evidence that Defendants had access to Plaintiffs’ copyrighted
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`design and that Plaintiffs could not prove substantial, let alone striking, similarity between the
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`two designs. Plaintiffs now move for an award of attorneys’ fees and costs.
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`Case 4:18-cv-00189-SRB Document 166 Filed 12/13/19 Page 1 of 5
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`17a
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`II.
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`Discussion
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`In an action for copyright infringement, “the court in its discretion may allow the
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`recovery of full costs” and “a reasonable attorney’s fee to the prevailing party.” 17 U.S.C. § 505.
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`“Factors that courts may consider in awarding attorney’s fees include frivolousness, motivation,
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`objective reasonableness (both in the factual and in the legal components of the case) and the
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`need in particular circumstances to advance considerations of compensation and deterrence.”
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`Pinkham v. Camex, Inc., 84 F.3d 292, 294 (8th Cir. 1996) (internal quotation marks omitted)
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`(quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994)). A district court must “give
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`‘substantial weight’ to the reasonableness of a losing party’s litigating positions while also
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`considering other relevant circumstances.” Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct.
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`1979, 1989 (2016) (internal citation omitted). “Although attorney’s fees are awarded in the trial
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`court’s discretion, they are the rule rather than the exception and should be awarded routinely.”
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`Little Mole Music v. Spike Inv., Inc., 720 F. Supp. 751, 757 (W.D. Mo. 1989) (quoting
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`Micromanipulator Co. v. Bough, 779 F.2d 255, 259 (5th Cir. 1985)); Broadcast Music, Inc. v.
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`MWS, LLC, No. 4:11CV1481 TIA, 2014 WL 2804396, at *4 (E.D. Mo. June 20, 2014).
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`Defendants argue they are entitled to attorneys’ fees because Plaintiffs’ claims were
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`objectively unreasonable considering Plaintiffs produced no evidence showing that Defendants
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`had access to Plaintiffs’ copyrighted design and considering the objective differences between
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`the parties’ designs. Defendants argue Plaintiffs’ counsel’s attempt to withdraw early in the
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`disposition of the case is indicative of the weakness of Plaintiffs’ claims. Defendants argue
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`Plaintiffs’ case was frivolous and pursued in bad faith, as evidenced by Plaintiffs’ failure to
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`retain a single expert or take a single deposition in the case and by the fact that Plaintiffs ignored
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`settlement offers. Defendants argue Plaintiffs were motivated by greed and sued Defendants
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`Case 4:18-cv-00189-SRB Document 166 Filed 12/13/19 Page 2 of 5
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`2
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`18a
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`“with the intent to force a large monetary settlement from Defendants who would wish to avoid
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`financially ruinous attorneys’ fees.” (Doc. #148, p. 9). Defendants argue an award of attorneys’
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`fees and costs would deter Plaintiffs from filing frivolous claims in the future and encourage
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`defendants in copyright actions to confidently litigate and advance meritorious defenses.
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`Plaintiffs do not respond to Defendants’ arguments or analyze a majority of the factors
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`relevant to the Court’s analysis. Plaintiffs argue their litigating position was objectively
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`reasonable because “access can be . . . fleeting [and] hard to detect and prove,” so “just because
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`Plaintiffs didn’t find [access], doesn’t necessarily mean it didn’t exist.” (Doc. #161, p. 2).
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`Plaintiffs argue Defendants are unworthy of an award of attorneys’ fees because several
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`Defendants allegedly violated copyright law by placing separate copyright notices on their own
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`triangular atrium design at different points in time.1
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`The Court finds the relevant factors weigh in favor of awarding Defendants full costs and
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`reasonable attorneys’ fees. Plaintiffs produced no direct or circumstantial evidence that
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`Defendants had access to Plaintiffs’ copyrighted design. As described in the Court’s order on
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`summary judgment, significant objective differences existed between the parties’ designs, which
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`Plaintiffs failed to address. The Court also considers that Plaintiffs’ attorney sought to withdraw
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`as counsel during litigation, stating that Plaintiffs had rendered representation unreasonably
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`difficult. (Doc. #75, ¶ 3). These realities, when considered in conjunction with the facts that
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`Plaintiff ignored settlement offers,2 failed to develop their claims through discovery, and failed
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`to prosecute their case, demonstrate Plaintiffs’ litigating position was unreasonable and that
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`Plaintiffs’ pursuit of the case was, at best, frivolous in nature and, at worst, done in bad faith.
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`1 The Court reiterates that any alleged issue involving the validity or legality of Defendants’ own copyright notices
`placed on their own work is irrelevant to this action concerning whether Defendants infringed on Plaintiffs’
`copyright. (See Doc. #137, pp. 4–5, n.4).
`2 Plaintiffs do not dispute this allegation.
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`Case 4:18-cv-00189-SRB Document 166 Filed 12/13/19 Page 3 of 5
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`3
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`19a
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`Defendants request a total of $430,057 in attorneys’ fees and $8,355.00 in costs.
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`Plaintiffs do not dispute the amount of attorneys’ fees and costs D