Case 3:04-cv-01031-L Document 166 Filed 06/28/07 Page 1 of 20 PageID 4490
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`§§
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`§§
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`§ Civil Action No. 3-04-CV-1031-L
`§
`§
` §
` §
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`§§
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`§
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`KB HOME,
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`v.
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`Plaintiff,
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`ANTARES HOMES, LTD., ANTARES
`HOMES LLC, ANTARES GP, LLC,
`and RONALD F. FORMBY,
`an individual,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Before the court are: (1) Plaintiff’s Motions for Partial Summary Judgment, filed December
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`18, 2006; (2) Defendants’ Motion to Strike, filed January 24, 2007; and (3) Plaintiff KB Home’s
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`Objections to and Appeal from Magistrate Stickney’s Order of January 25, 2007 Denying Plaintiff’s
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`Motion to Exclude the Testimony of Jim Sealy, filed February 7, 2007. After consideration of the
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`motions, responses, replies, objections, record, and applicable law, the court grants in part and
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`denies in part Plaintiff’s Motions for Partial Summary Judgment, grants Defendants’ Motion to
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`Strike, and overrules Plaintiff’s Objections to and Appeal from Magistrate Stickney’s Order.
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`I.
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`Factual and Procedural Background
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`Plaintiff KB Home (“KB Home” or “Plaintiff”) is an architectural design and home-building
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`company that designs and builds residential developments. It is the owner of a set of architectural
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`floor plan designs for single-family homes. KB Home has certificates of copyrights for the designs,
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`and the drawings are deposited with the United States Copyright Office. Defendants Antares
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`Homes, Ltd., (“Antares Ltd.”), Antares Homes LLC (“Antares LLC”), Antares GP, LLC (“Antares
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`Memorandum Opinion and Order - Page 1
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`GP”) and Ronald F. Formby (“Formby”) (collectively “Defendants”) are also residential
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`homebuilders.
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` Plaintiff alleges that in 1996, KB Home (known at that time as Kaufman & Broad) acquired
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`Rayco1 and all of Rayco’s assets, including its copyrighted designs. On March 1, 1997, KB Home
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`hired Formby as Vice-President of Sales for the Dallas Division. Formby’s job was to take the old
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`Rayco business model and implement it in the Dallas Division. His responsibilities included
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`working closely with Rayco employees in San Antonio, and dealing hands-on with old Rayco plans
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`that KB Home began to sell in Dallas. KB Home terminated Formby on September 30, 1998. In
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`December 1998, Formby established Antares Homes.
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`KB Home filed this lawsuit on May 12, 2004, alleging copyright infringement by
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`Defendants. It seeks a permanent injunction in addition to damages. KB Home alleges that Formby
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`copied six of Rayco’s, now KB Home’s, copyrighted designs, and created architectural technical
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`drawings in “virtually all significant respects, including overall form arrangement and composition
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`of spaces and elements.”2 KB Home also alleges that Defendants “marketed single family homes
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`by publishing simplified abridged plans, based on copies of the KB Home [c]opyrighted [d]esigns,
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`in brochures and on the internet.” KB Home further alleges that Defendants “constructed, marketed
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`and sold single family houses that were substantially similar to each of the KB Home [c]opyrighted
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`1Rayco was a homebuilder in San Antonio, Texas.
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`2The architectural blueprints are titled Plan H-2871-R1 Design (“plan 2871”), Plan H-3288-R1
`Design, Plan H-3265-R1 Design (“plan 3265”), Plan H-2334-R3 Design, Plan 240.2162.A2R Design (“plan
`240.2162.A2R”), and Plan 240.2693 Design (“plan 240.2693”). Plans 2871, 3265, 240.2162.A2R, and
`240.2693 are referred to collectively as the “KB Homes plans.” The plans that Plaintiff alleges are infringing
`are referred to collectively as the “Antares plans.”
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`Memorandum Opinion and Order - Page 2
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`[d]esigns with respect to, and without limitation, the overall form and the arrangement and
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`composition of spaces and elements.”
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`The court granted in part Defendants’ motion for summary judgment on December 29, 2005,
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`dismissing KB Home’s claims with regard to Plan H-3288-R1 Design and Plan H-2334-R3 Design.
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`This case was set for trial in September 2006, and the court held two pretrial conferences before
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`vacating the trial setting. Plaintiff moved in limine to exclude Defendants’ expert witness Jim Sealy.
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`The court granted the motion and gave Defendants an opportunity to name a new witness or submit
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`a new expert report. Defendants submitted a revised report from Jim Sealy, to which Plaintiff
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`objected. United States Magistrate Judge Paul D. Stickney held a hearing on Plaintiff’s Motion to
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`Strike on January 22, 2007, and denied Plaintiff’s motion on January 25, 2007. At the pretrial
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`conferences, Plaintiff also sought leave to file a motion for partial summary judgment, which the
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`court granted. That motion for partial summary judgment is now before the court.
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`II.
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`Defendants’ Motion to Strike
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`The court turns first to Defendants’ Motion to Strike the appendix filed by Plaintiff in
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`support of its motion for partial summary judgment. Plaintiff filed a 391-page appendix with its
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`reply in support of its motion. Defendants argue that the appendix should be struck from the record
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`because Plaintiff filed it without leave of the court. Plaintiff argues that the documents included in
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`the appendix were provided for the court’s convenience and pursuant to Rule 106 of the Federal
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`Rules of Evidence.3
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`3The court notes that the parties have engaged in a spirited debate about their opposition’s violation
`of this court’s Local Rules. These tit-for-tat exchanges are reminiscent of a kindergarten spat. The parties
`are to cease and desist such behavior. The court has grown weary of this conduct, and it serves no purpose
`other than to unnecessarily burden the record of this case and distract from the substantive issues.
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`Memorandum Opinion and Order - Page 3
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`The court declines to consider arguments for the first time in a reply brief. Spring Indus.,
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`Inc. v. American Motorists Ins., 137 F.R.D. 238, 239 (N.D. Tex. 1991). “It follows that a reply brief
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`that presents dispositive evidence by way of new affidavits and exhibits deprives the nonmovant of
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`a meaningful opportunity to respond.” Id. In the Spring Industries case, Judge Fitzwater noted that
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`where additional evidence could aid the court and prevent injustice, “the parties should agree to the
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`filing of the reply brief and new supporting materials, as well as to the submission of a further
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`response and a final reply brief.” Id. at 240. Here, it is clear that the parties have not conferred, and
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`Defendants ask not for a chance to file a surreply but to strike the appendix in its entirety.
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`The court determines that Defendants’ motion should be and is hereby granted. Plaintiff’s
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`motion for partial summary judgment was filed after several extensions of the trial date and was one
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`of the reasons the court vacated the most recent trial setting. Rather than further delay the trial of
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`this matter by allowing Defendants a chance to respond and Plaintiff a chance to file a final reply,
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`the court believes that the better solution is to strike the appendix and not consider the additional
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`evidence submitted by Plaintiff in its consideration of the motion for partial summary judgment.
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`Plaintiff could have filed this evidence with its motion for partial summary judgment.
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`III.
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`Plaintiff’s Motion for Partial Summary Judgment
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`A.
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`Legal Standard
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`Summary judgment shall be rendered when the pleadings, depositions, answers to
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`interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
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`genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
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`of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v.
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`Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact
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`Memorandum Opinion and Order - Page 4
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`is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the
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`nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a
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`motion for summary judgment, the court is required to view all inferences drawn from the factual
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`record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
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`Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court “may not make
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`credibility determinations or weigh the evidence” in ruling on motion for summary judgment.
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`Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-
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`55.
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`Once the moving party has made an initial showing that there is no evidence to support the
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`nonmoving party’s case, the party opposing the motion must come forward with competent summary
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`judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere
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`conclusory allegations are not competent summary judgment evidence, and thus are insufficient to
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`defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
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`Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent
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`summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513
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`U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence
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`in the record and to articulate the precise manner in which that evidence supports his claim. Ragas,
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`136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search
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`of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see
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`also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.), cert. denied, 506 U.S.
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`832 (1992). “Only disputes over facts that might affect the outcome of the suit under the governing
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`laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed
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`Memorandum Opinion and Order - Page 5
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`fact issues which are “irrelevant and unnecessary” will not be considered by a court in ruling on a
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`summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to
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`establish the existence of an element essential to its case and on which it will bear the burden of
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`proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
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`B.
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`Analysis
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`Plaintiff seeks summary judgment on four issues: (1) ownership of U.S. copyrights VAu 599-
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`560, VAu 599-561, VAu 599-562 (the “Copyrights”); (2) validity of the Copyrights; (3) copying of
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`plans 2871, 3265, 240.2162.A2R, and 240.2693; and (4) liability for infringement of the Copyrights.
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`Defendants oppose Plaintiff’s motion.
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`To establish a claim for copyright infringement, a plaintiff must prove that: (1) he owns a
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`valid copyright and (2) the defendant copied constituent elements of the plaintiff’s work that are
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`original. Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004)
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`(citing General Universal Sys. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004)). With respect to the first
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`element, “[c]opyright ownership is shown by proof of originality and copyrightability in the work
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`as a whole and by compliance with applicable statutory formalities.” Eng’g Dynamics v. Structural
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`Software, Inc., 26 F.3d 1335, 1340 (5th Cir. 1994). To establish the second element, a plaintiff must
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`prove: (1) factual copying and (2) substantial similarity. Bridgmon v. Array Sys. Corp., 325 F.3d
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`572, 576 (5th Cir. 2003). Factual copying “can be prove[d] by direct or circumstantial evidence.”
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`Id. “As direct evidence of copying is rarely available, factual copying may be inferred from (1)
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`proof that the defendant had access to the copyrighted work prior to creation of the infringing work
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`and (2) probative similarity.” Peel & Co. v. The Rug Market, 238 F.3d 391, 394 (5th Cir. 2001).
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`If a plaintiff establishes an inference of factual copying (by showing access and probative
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`Memorandum Opinion and Order - Page 6
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`similarity), the defendant can rebut that inference, and thus escape liability for infringement, if he
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`can prove that he independently created the work. Id. at 398. If a plaintiff has established factual
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`copying (and the defendant does not establish independent creation), the plaintiff must also prove
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`that the copyrighted work and the alleged infringing work are substantially similar. Bridgmon, 325
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`F.3d at 577. To answer the question of substantial similarity, a side-by-side comparison must be
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`made between the original and the copy to determine whether a layman would view the two works
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`as substantially similar. Id. at 576-77 (internal citation and quotation marks omitted). The question
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`of substantial similarity should typically be left to the fact finder; however, summary judgment may
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`be appropriate if the court can conclude, after viewing the evidence and drawing inferences in a
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`manner most favorable to the nonmoving party, that no reasonable juror could find substantial
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`similarity of ideas and expression. Peel, 238 F.3d at 395.
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`1.
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`Ownership of the Copyrights
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`Plaintiff argues that there is no dispute regarding KB Home’s ownership of the Copyrights,
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`and that even if there is, Defendants cannot raise ownership as a defense pursuant to section 204(a).
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`Defendants argue that Plaintiff has not proved ownership of the Copyrights as a matter of law and
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`that KB Homes cannot rely on certain evidence proving ownership because it was not provided to
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`Defendants in a timely manner. This issue was also raised by KB Home in the pretrial materials.
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`KB Home filed a Motion in Limine to Preclude Defendants from Introducing Proof or Making
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`Argument that KB Homes Does Not Have a Written Assignment of Certain Copyrights on
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`September 20, 2006. Defendants filed several responses to the motion in limine, on September 21,
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`2006, September 27, 2006, and October 13, 2006. Plaintiff filed a reply in support of its motion in
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`limine on October 27, 2006. The court has not yet ruled on the motion in limine, but took the
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`Memorandum Opinion and Order - Page 7
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`motion under advisement. Because the motion in limine is pending and because the parties have
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`referenced or incorporated this briefing in the motion and response, the court considers the briefing
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`on the motion for summary judgment and the motion in limine.
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`Section 204(a) provides: “A transfer of copyright ownership, other than by operation of law,
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`is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in
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`writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” 17
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`USC § 204(a). Plaintiff argues that because Defendants are alleged infringers who are not parties
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`to the copyright transfers, they cannot challenge these transfers. Section 204(a) has three purposes:
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`(1) to ensure that a copyright is not “inadvertently transferred;” (2) to ensure precisely “what rights”
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`at “what price” are being transferred; and (3) to resolve later disputes. Lyrick Studios, Inc. v. Big
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`Idea Prods., Inc., 420 F.3d 388, 392 (5th Cir. 2005), cert. denied, 126 S.Ct. 1653 (2006).
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`Under section 204(a), “[a]n after-the-fact writing can validate an agreement from the date
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`of its inception, at least against challenges to the agreement by third parties.” Id. at 392. In Lyrick,
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`the court noted that “when courts have found the post-deal writing sufficient, the party challenging
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`the writing has been an alleged infringer who is an outsider to the deal. In that situation, courts are
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`hesitant to allow an outside infringer to challenge the timing or technicalities of the copyright
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`transfer.” Id. at 394 (internal citations omitted).
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`Defendants point out, however, that the cases cited by Plaintiff regarding section 204(a) and
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`a third-party infringer’s ability to challenge a post-deal writing considered the validity of the post-
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`deal writing to codify an earlier oral transfer of copyright. See Lyrick, 420 F.3d 388, 390-391
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`(noting that no formal written agreement had been signed); Imperial Residential Design, Inc. v.
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`Palms Dev. Group, Inc., 70 F.3d 96, 99 (11th Cir. 1995) (“We recognize that 17 USC § 204(a) can
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`Memorandum Opinion and Order - Page 8
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`be satisfied by an oral agreement later ratified or confirmed by a written memorandum of the
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`transfer.”) (internal citation and quotation omitted); Jack Preston Wood Design Inc. v. BL Bldg. Co.,
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`No. H-03-713 (S.D. Tex. June 24, 2004), 14 (“17 USC § 204(a) can be satisfied by a written
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`document memorializing or ratifying a prior oral assignment. . . . Courts have also held that a
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`writing memorializing an earlier oral agreement between a copyright owner and transferee, signed
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`by both parties, cures defects in standing, even if executed after a suit challenging the copyright was
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`filed.”); Billy-Bob Teeth, Inc. v. Novelty, Inc., 329 F.3d 586, (7th Cir. 2003) (nunc pro tunc copyright
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`assignment signed after oral agreement); Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697
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`F.2d 27, 36 (2d Cir. 1982) (considering later written ratification of an “informal understanding”).
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`While these courts considered the post-agreement ratification of an oral assignment, not all
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`of the cases limit their section 204(a) analysis in this way. The language in Billy-Bob is broader than
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`that of other courts and does not appear to limit its holding to a post-deal writing ratifying an oral
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`agreement. In that case, the court held that an alleged infringer who is not party to the transfer “does
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`not having standing under § 204. . . . [W]here there is no dispute between the copyright owner and
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`the transferee about that status of copyright, ‘it would be unusual and unwarranted to permit a third-
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`party infringer to invoke section 204(a) to avoid suit for copyright infringement’.” 329 F.3d at 592-
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`593 (quoting Imperial Residential Design, 70 F.3d at 99). Similarly, in Eden Toys, the court noted
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`that where “the copyright holder appears to have no dispute with its licensee on this matter, it would
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`anomalous to permit a third party infringer to invoke [section 204(a)] against the licensee.” 697
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`F.2d at 36.
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`Plaintiff attached a copy of a September 19, 2006 Memorandum of Assignment to its motion
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`in limine. Plaintiff argues that this memorandum is the sort of post-transfer writing that complies
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`Memorandum Opinion and Order - Page 9
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`with section 204(a) and bars Defendants from asserting ownership as a defense to Plaintiff’s claims.
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`The memorandum does not memorialize an oral agreement; by its own terms, the memorandum was
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`created to resolve “doubt” about the ownership of the Copyrights and references several corporate
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`transactions. Plaintiff has also attached deposition testimony with its motion for partial summary
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`judgment regarding the transfer of assets from Rayco to KB Home.
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`Defendants argue that the Memorandum was not even attached to the motion for partial
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`summary judgment, that Plaintiff’s evidence fails to establish that KB Homes owns the Copyrights,
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`and that the court should sanction Plaintiff for failure to produce the Memorandum for two years.
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`Defendants have attached portions of the January 1996 Purchase Agreement related to the sale of
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`Rayco to its response.
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`The court notes first that while the Memorandum was not attached to the motion for partial
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`summary judgment, the document was attached to Plaintiff’s motion in limine as Exhibit A and
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`referred to in both Plaintiff’s motion and Defendants’ response. Therefore, the court considers the
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`document and the parties’ arguments. It is clear that the Memorandum is not a post-deal writing that
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`formalizes a prior oral agreement, so many of the cases cited by Plaintiff are inapposite. The
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`question, then, is whether Plaintiff has established its ownership and to what extent Defendants may
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`dispute its ownership.
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`The rationale of section 204(a) is clearly to protect the parties to the transfer of a copyright.
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`Lyrick, 420 F.3d at 392. Accordingly, the court finds persuasive the reasoning of those courts that
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`have limited a third-party infringer’s right to dispute ownership. As a district court in Oregon stated,
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`“[A] stranger lacks standing to assert A’s alleged rights against B when A declines to assert them
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`himself. The defendant had no right to infringe the copyright, regardless of whether it was owned
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`Memorandum Opinion and Order - Page 10
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`by A or B.” Fleming v. Miles, 181 F. Supp. 2d 1143, 1158 (D. Or. 2001) (citing Magnuson v. Video
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`Yesteryear, 85 F.3d 1424 (9th Cir. 1996)). Plaintiffs cite Fleming and argue that Defendants’
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`argument regarding ownership of the Copyrights is no more than a red herring because the issue of
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`whether a transfer was effected does not ultimately excuse Defendants’ alleged infringement.
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`The court does not hold that Defendants are barred from raising section 204(a) as a defense
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`under these particular facts; however, the court is mindful that other courts have refused to allow
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`a third-party infringer to raise similar ownership issues where there is no dispute between the
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`copyright owner and the transferee. While Defendants raise several arguments to cloud the waters
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`and attempt to create a fact issue as to ownership, Defendants have not provided any evidence that
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`disputes Plaintiff’s version of the transfer of the Copyrights to KB Home.
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`Plaintiff has established that Ken Gancarczyk (“Gancarczyk”) created plans 2871 and 3265
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`while an employee of the entity that became Rayco. Pl.’s App. 43, 46, 49-51. Plaintiff argues that
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`pursuant to 17 USC § 101, as an employee, the plans became the property of Rayco. Gancarczyk
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`testified that Rayco was acquired by KB Homes. Id. at 43, 46. Although Plaintiff has not provided
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`every corporate document establishing the corporate transfers, Defendants attached portions of the
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`Rayco purchase agreement that show that Kaufman and Broad Home Corporation paid the partners
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`of Rayco more than $77 million to purchase interests in the limited and general partners of Rayco.
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`Defs.’ App. 9. In the attached portions of the purchase agreement available to the court, the only
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`reference to copyrights in the purchase agreement is a provision that provides that “Rayco has the
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`right to use all . . . copyrights and other proprietary intellectual property rights necessary for the
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`conduct of its business.” Defs.’ Resp. App. (doc. 117), Ex. E § 4.2.12 (emphasis added). There is
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`no evidence before the court that the Copyrights were excluded from the sale of Rayco, just that
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`Memorandum Opinion and Order - Page 11
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`Rayco had a right to continue to use them. The deposition testimony of the general counsel of KB
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`Home at the time of the Rayco purchase establishes that KB Home purchased the Copyrights as part
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`of the transaction. Pl.’s App. 71. The president of Rayco at the time of the purchase also testified
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`that he “assume[d]” that the Copyrights were transferred to KB Home. Pl.’s App. 80. Finally, the
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`Memorandum establishes that there is no existing dispute between the parties to the transfer that KB
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`Home purchased and continues to own the Copyrights.
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`Defendants’ attacks on the sufficiency of Plaintiff’s evidence fail. As alleged third-party
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`infringers, Defendants have failed to show that the parties to the transfer dispute the ownership of
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`the Copyrights. Plaintiff has provided enough evidence for the court to determine under the facts
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`before it, as a matter of law, that Plaintiff owns the Copyrights. The court declines to sanction
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`Plaintiff for failing to disclose the Memorandum because it is clear that the Memorandum was only
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`signed a few days before the pretrial conference. Accordingly, the court grants Plaintiff’s motion
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`as to the ownership of the disputed Copyrights and denies as moot Plaintiff’s Motion in Limine to
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`Preclude Defendants from Introducing Proof or Making Argument that KB Home Does Not Have
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`a Written Assignment of Certain Copyrights.
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`2.
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`Validity of the Copyrights
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`Plaintiff argues that there is no genuine issue of material fact related to the validity of the
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`Copyrights. “Copyright ownership is shown by proof of originality and copyrightability in the work
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`as a whole . . . .” Eng’g Dynamics, 26 F.3d at 1340. Plaintiff argues that there is categorical
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`protection for architectural drawings, that the plans meet the “modicum of creativity” requirement,
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`and that they were “independently created.” Defendants dispute that the plans at issue require the
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`Memorandum Opinion and Order - Page 12
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`“modicum of creativity” required for copyrightability or that Plaintiff can show the independent
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`creation of plan 2693.
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`Defendants argue that the plans at issue in this case are “about the simplest, most basic floor
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`plans one could ever imagine.” Defs.’ Resp. 14. Despite the alleged simplicity of the disputed
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`plans, the threshold for creativity is low:
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`Original, as the term is used in copyright, means only that the work
`was independently created by the author . . . , and that it possesses at
`least some minimal degree of creativity. To be sure, the requisite
`level of creativity is extremely low; even a slight amount will suffice.
`The vast majority of works make the grade quite easily, as they
`possess some creative spark, no matter how crude, humble or obvious
`it might be.
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`Feist Publ’ns, Inc. v. Rural Tel. Serv., 499 U.S. 340, 345 (1991) (internal citations and quotations
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`omitted). The one case cited by Defendants, Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384,
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`388 n.8 (5th Cir. 1984), not only predates Feist, but simply notes that the question of
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`copyrightability “is properly suited for the trier of fact.” District courts determining originality at
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`the summary judgment stage, however, have been affirmed. Mason v. Montgomery Data, Inc., 967
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`F.2d 135, 142 (5th Cir. 1992).
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`The facts also establish that the plans have a “minimal degree of creativity,” as even
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`Defendants’ proffered expert Jim Sealy has testified. Pl.’s App. 19. The only evidence in the record
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`stating otherwise is a declaration from Defendant Ron Formby that states: “Based on my experience,
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`regarding the KB Home floor plans at issue . . . , it is my opinion that the floor plans took less than
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`a minimal degree of creativity to create.” Defs.’ App. 115. Formby’s declaration does not include
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`any objective or specific facts supporting his conclusion. The declaration is a single conclusory
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`statement that the court may reject. BMG Music v. Martinez, 74 F.3d 87, 91 (5th Cir. 1996).
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`Memorandum Opinion and Order - Page 13
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`

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`Case 3:04-cv-01031-L Document 166 Filed 06/28/07 Page 14 of 20 PageID 4503
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`Defendants also argue that there is no evidence of “independent creation” of plan 2693
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`because Plaintiff first believed that plan 2693 was created after Antares plan 2743 and the copyright
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`registration for plan 2693 states that the work was completed in 2000. Defs.’ App. 82. Plaintiff
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`argues that the earliest date on a drawing of plan 2693 is September 1999, id. at 100-102, and that
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`Gancarcyzk testified that he created plan 2693 with Chris Matzke. Pl.’s App. 48. While Defendants
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`dispute the date on which plan 2693 was created, they offer no competent summary judgment
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`evidence to rebut Plaintiff’s evidence that it was created in 1999.
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`The court concludes that the plans meet the requirements for a finding of validity, and that
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`the plans, including plan 2693, were independently created. Accordingly, the court grants
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`Plaintiff’s motion as to the validity of the Copyrights.
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`3.
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`Copying of the Plans
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`Plaintiff also asks the court to enter summary judgment in its favor finding an inference of
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`copying, that is, “proof that the defendant had access to the copyrighted work prior to creation of
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`the infringing work and . . . probative similarity.” Peel, 238 F.3d at 394. In terms of access,
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`Defendants only dispute their access to plan 2693. Neither Plaintiff nor Defendants separately
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`addresses the issue of probative similarity.
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`The court determines that a fact issue remains as to whether Defendants had access to plan
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`2693, but that no fact issue exists with regard to plans 2871, 240.2162.A2R, or 240.2693. Formby
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`was employed by KB Homes until September 30, 1998. Defs.’ App. 144. Formby also admits that
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`after he started his own business, he had contact with KB Home employees, has been in KB Home
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`models, visited various KB Home developments, and viewed plans of homes built by Plaintiff. Pl.’s
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`App. 30-34. As the evidence before the court establishes the earliest date for plan 2693 was
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`Memorandum Opinion and Order - Page 14
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`

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`Case 3:04-cv-01031-L Document 166 Filed 06/28/07 Page 15 of 20 PageID 4504
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`September 1999, and there is no specific evidence that Formby had access to plan 2693 after he left
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`KB Homes, a fact issue remains as to his access to that plan.
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`The requirement to show “probative similarity” to support an inference of copying is distinct
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`from the finding of “substantial similarity” required for a finding of infringement:
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`[T]he purpose of the probative similarity inquiry is to determine
`whether factual copying may be inferred and that this inquiry is not
`the same as substantial similarity. . . . [A] jury may find that two
`works are probatively similar if it finds any similarities between the
`two works (whether substantial or not) that, in the normal course of
`events, would not be expected to arise independently in the two
`works and that therefore might suggest that the defendant copied part
`of the plaintiff’s work.
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`Positive Black Talk, 394 F.3d at 370. Plaintiff argues that Defendants’ plans are “strikingly similar”
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`to KB Homes’s plans and that the court can infer copying from the similarity.
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`The court declines to find, as a matter of law, an inference of copying. As noted in Positive
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`Black Talk, the issue of whether the plans are “probatively similar” is a fact determination better left
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`for the jury. Accordingly, the court grants in part and denies in part Plaintiff’s motion with
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`respect to copying. While the court determines that Defendants had access to plans 2871,
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`240.2162.A2R, or 240.2693, and summary judgment is granted to that extent, fact issues remain as
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`to Defendants’ access to plan 2693 and whether the allegedly copied plans have probative similarity
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`to Plaintiff’s plans.
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`4.
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`Substantial Similarity and Infringement
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`Finally, Plaintiff asks the court to enter judgment in its favor with respect to Defendants’
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`alleged infringement. The parties essentially repeat their arguments regarding the similarity of the
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`plans made in the initial summary judgment briefing. As the court noted then,
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`Memorandum Opinion and Order - Page 15
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`

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`Case 3:04-cv-01031-L Document 166 Filed 06/28/07 Page 16 of 20 PageID 4505
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`the overwhelming evidence from both sides presents a classic
`question of fact for the fact finder. Reasonable minds, particularly
`minds of reasonable laypersons, could differ as to whether the
`designs are substantially similar. . . . [T]he court determines that a
`reasonable juror could find substantial similarity of the home designs.
`See Peel, 238 F.3d at 395.
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`Mem. Op. and Order (Dec. 29, 2005), 11-12. Plaintiff has provided no evidence that requires the
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`court to determine that a jury would find substantial similarity. Accordingly, the same result is
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`appropriate now; the ultimate issue of whether Defendants are liable for infringement is a question
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`for the jury. The court denies Plaintiff’s motion seeking summary judgment on infringement.
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`IV.
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`Plaintiff’s Objections and Appeal regarding Expert Jim Sealy
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`