Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 1 of 25 PageID# 1159
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`IN THE UNITED STATES DISTRICT COURT FOR THE
`EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`KAVEH SARI,
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`Plaintiff,
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`v.
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`AMERICA'S HOME PLACE, INC.,
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`Case No. l:14-cv-1454(GBL)
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`Defendant.
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`MEMORANDUM OPINION AND ORDER
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`THIS MATTER is before the Court on Defendant America's Home Place, Inc.
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`("AHP")'s Motion for Summary Judgment (Doc. 66). This case involves Plaintiff Kaveh Sari
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`("Sari")'s claim that AHP infringed on his copyright in architectural plans in violation of the
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`Copyright Act, 17 U.S.C. § 101, et seq and AHP's Counterclaims.
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`There are six issues before the Court. First, whether the Court should grant AHP's
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`Motion for Summary Judgment where AHP argues that Sari does not meet the first element of a
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`copyright infringement claim because no reasonable jury could find that Sari owns a valid
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`copyright. Second, whether the Courtshould grantAHP's Motion for Summary Judgment
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`where AHP argues that no reasonablejury could find that Sari provided the required notice for
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`copyright protection. Third, whether the Court should grant AHP's Motion for Summary
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`Judgment where AHP argues that Sari should be estopped from bringing his claim because he
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`deliberately concealed his beliefthathe owned a copyright and AHP reasonably relied on that
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`misrepresentation. Fourth, whether the Court should grant AHP's Motion for Summary
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`Judgment where AHP argues that no reasonablejury could find that Sari meets the second
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 2 of 25 PageID# 1160
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`element of a copyright infringement claim because AHP's work is not substantially similar to
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`Sari's work. Fifth, whether, provided AHP prevails on summary judgment, AHP is entitled to
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`reasonable attorneys' fees. Sixth, whether, provided AHP prevails on summary judgment, AHP
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`is entitled to a permanent injunction.
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`The Court finds that (1) because AHP effectively rebuts the presumption of validity that
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`Sari's copyright registration carries, no reasonable jury could find that Sari owns a valid
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`copyright, and thus, the Court must grant AHP's Motion for Summary Judgment; (2) Sari's lack
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`of notice is not dispositive because copyrights created after March 1, 1989 do not require notice;
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`(3) Sari is not equitably estopped from bringing his claim; (4) no reasonable jury could find that
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`AHP's architectural work is similar to Sari's, and thus, the Court must grant AHP's Motion for
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`Summary Judgment; (5) Sari's belief that he owned a valid copyright was not so objectively
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`unreasonable as to warrant the award of attorneys' fees; and (6) AHP did not suffer irreparable
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`harm such that it would be entitled to a permanent injunction. Therefore, the Court GRANTS
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`AHP's Motion for Summary Judgment and the Court DENIES AHP's request for attorneys' fees
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`and a permanent injunction.
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`I. BACKGROUND
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`Plaintiff Kaveh Sari is a Virginia businessman who owns an IT consulting company.
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`(Doc. 66-1 at 32-33). Defendant America's Home Place, Inc. is a custom home builder
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`domiciled in the state of Georgia. (Am. Compl. ffi[ 6-7). Sometime in January 2013, Sari began
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`discussions with Keith Hewston ("Hewston"), a building consultant with AHP, about the
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`possibility of building a home in Lorton, Virginia. (Doc. 68-1 at 2). In March 2013, Sari
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`contracted with architect Ken Reed ("Reed") who visited the home of Sari's former neighbor,
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`

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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 3 of 25 PageID# 1161
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`Mr. Lee, and used the site visit to draw up plans ("Reed Plans")1 for a home identical to Mr.
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`Lee's house. (Doc. 66-3 at 18, 21; Doc. 66-4 at 20).
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`Sari forwarded the Reed Plans to AHP on April 19, 2013 (Doc. 68-1 at 36-37; Doc. 68-
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`10) and on May 25,2013, Hewston sent Sari preliminary plans for the proposed house. (Doc. 68-
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`12 at 4-11). On August 17, 2013, Sari and AHP entered into a contract to build his home. (Doc.
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`68-1 at 9; Doc. 68-13). Afterwards, Sari made ten changes to the Reed Plans.
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`1. Added stone and stucco to the facade. (Doc. 66-3 at 11).
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`2. Replaced the two first-floor center windows on the front of the house with one
`large window. (Id. at 8).
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`3. Adjusted the sloping lot and added two small basement windows on the right
`side of the front of the house. (Id. at 11).
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`4. Added an interior door leading to the study where originally there was an
`open entrance. (Id. at 10).
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`5. Added eight windows arranged in a tic-tac-toe pattern on the rear of the house
`where the fireplace was located. (Id. at 12).
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`6. Moved the fireplace to an interior wall. (Id. at 12-13).
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`7. Added French doors on the basement level creating a walkout basement. (Id.
`at 12).
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`8. Added a pantry to the backside of the kitchen where the laundry room was
`located. (Id. at 13).
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`9. Moved the laundry room to the second floor. (Id).
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`10. Extended the left-exterior wall at the rear of the house so that it was flush with
`the garage. (Id. at 14).
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`On March 11, 2014, AHP sent Sari the building plans with Sari's requested changes
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`("Highlighted Plans"). (Doc. 68-16). By April 2014, the relationship between Sari and AHP
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`1Reed may have also used a set ofplans—the "Rothschild Plans" (Doc. 68-4)—from another ofSari's former
`neighbors when drafting theReed Plans. (Doc. 68-6). It isimmaterial, however, whether Reed exclusively used the
`site visit to draft the Reed Plans, or if he alsoused the Rothschild Plans, as they were the same layout. (See Doc. 66-
`3 at 19("[T]hey're all the same. Minewas a Rothschild, Mr. Lee's was a Rothschild.")).
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 4 of 25 PageID# 1162
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`began to dissolve over disputes regarding the project's cost, and the parties eventually ended
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`their agreement through arbitration. (Am. Compl. ffi| 9-10). On September 30,2014, AHP
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`finalized building plans ("Chen Plans") for another family, the Chens. (Doc. 69-1; Doc. 69-2).
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`On October 15, 2014, Sari sent an email to AHP employees and others indicating that he
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`believed AHP was infringing on his copyright of the Highlighted Plans by building the house
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`described in the Chen Plans. (See Doc. 70-1).
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`On November 17, 2014, upon Sari's request, Reed signed any rights he owned in the
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`Reed Plans over to Sari. (Doc. 75-1 at 18). Reed voiced doubts about whether Sari could enforce
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`a copyright in the Reed Plans, though, and he expressly declined to be a part of Sari's lawsuit.
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`(Doc. 66-4 at 19-20; Doc. 70-2; Doc. 70-3). On November 18,2014, Sari applied for copyright
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`registration on the Reed Plans. (Doc. 75-1 at 20). After the Copyright Office emailed Sari
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`expressing confusion as to what exactly Sari was attempting to register (see Doc. 70-6), Sari sent
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`the Copyright Office the Highlighted Plans. (Doc. 66-2 at 1^). On February 9, 2015, the
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`Copyright Office registered Sari's copyright in the Highlighted Plans as a derivative work. (Doc.
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`75-1 at 49).
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`On October 31, 2014, Sari, proceeding pro se, filed a complaint against AHP alleging
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`copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101, et seq. Sari filed an
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`amended complaint on December 31, 2014 (Doc. 21), and AHP filed its Answer on January 14,
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`2015 asserting counterclaims for (1) declaratory relief, (2) fraud on the copyright office, (3)
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`injunctive relief, and (4) attorneys' fees. (Doc. 24). Following discovery, AHP filed its Motion
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`for Summary Judgment (Doc. 66) on June 22, 2015.
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`

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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 5 of 25 PageID# 1163
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`II. STANDARD OF REVIEW
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`Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the
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`moving party demonstrates that there is no genuine issue as to any material fact, and that the
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`moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
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`In reviewing a motion for summary judgment, the Court views the facts in a light most
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`favorable to the non-moving party. Boitnott v. Corning, Inc., 669 F.3d 172, 175 (4th Cir. 2012)
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`(citing Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986)). Once a motion for summary
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`judgment is properly made and supported, the opposing party has the burden of showing that a
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`genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
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`(1986); Bouchat v. BaltimoreRavens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003)
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`(citations omitted). "[T]he mere existence of some alleged factual dispute between the parties
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`will not defeat an otherwise properly supported motion for summary judgment; the requirement
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`is that there be no genuine issue of material fact." Emmett v. Johnson, 532 F.3d 291, 297 (4th
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`Cir. 2008) (quoting Anderson, Ml U.S. at 247^8).
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`A "material fact" is a fact with the propensity to affect the outcome of a party's case.
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`Anderson, Ml U.S. at 248; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459,465
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`(4th Cir. 2001). Whether a fact is considered to be "material" is determined by the substantive
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`law, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing
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`law will properly preclude the entry of summary judgment." Anderson, Ml U.S. at 248; Hooven-
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`Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001).
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`A "genuine" issue concerning a "material" fact arises when the evidence is sufficient to
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`allow a reasonable jury to return a verdict in the nonmoving party's favor. Resource Bankshares
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`Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson, Ml
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 6 of 25 PageID# 1164
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`U.S. at 248). Rule 56(e) requires the nonmoving party to go beyond the pleadings and by its
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`own affidavits, or by the depositions, answers to interrogatories, and admissions on file,
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`designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett,
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`477 U.S. 317, 324 (1986).
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`III. ANALYSIS
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`A. Motion for Summary Judgment
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`The Court GRANTS AHP's Motion for Summary Judgment because no reasonable jury
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`could find that Sari meets either element of a copyright infringement claim as (1) Sari does not
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`own a valid copyright in the Highlighted Plans, and (2) the two works at issue—the Chen Plans
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`and the Highlighted Plans—are not substantially similar. A copyright infringement claim has
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`two elements. First, the plaintiff must establish ownership of a valid copyright. Feist
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`Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Second, the plaintiff must
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`show that the defendant copied original parts of the copyrighted work. Id. AHP argues (1) that
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`no reasonablejury could find that Sari meets the first element of a copyright infringement claim
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`because he owns no valid copyright; (2) that no reasonablejury could find that Sari gave the
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`statutorily-required notice to maintain a valid copyright; (3) that Sari should be equitably
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`estopped from bringing his claim; (4) that no reasonable jury could find that Sari meets the
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`second element of a copyright infringement claim because the Chen Plans are not substantially
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`similar to the Highlighted Plans; (5) that the Court should grantAHP reasonable attorneys' fees;
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`and (6) that the Court should issue a permanent injunctionbarring Sari from filing additional
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`copyright registrations and additional suits against AHP. The Court will address AHP's
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`arguments in turn.
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 7 of 25 PageID# 1165
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`1. Ownership of a Valid Copyright
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`The Court grants AHP's Motion for Summary judgment because no reasonable juror
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`could find that Sari's copyright registration is valid as the Highlighted Plans contain no
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`individually original elements, and the overall arrangement of those elements is not protectable
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`under the AWCPA as it serves a functional and not a design purpose.
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`A valid copyright requires an "original work[] of authorship fixed in a tangible medium
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`of expression, now known or later developed, from which they can be perceived, reproduced, or
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`otherwise communicated" including "architectural works." 17 U.S.C. 102(a). Of paramount
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`importance is the work's originality. Feist, 499 U.S. at 346 ("Originality is a constitutional
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`requirement."). The originality requisite for copyright protection requires "independent creation
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`plus a modicum of creativity." Id. (citing In re Trade-Mark Cases, 100 U.S. 82, 94 (1879)). A
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`valid copyright registration serves asprimafacie evidence of originality, shifting the burden to
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`the defendant to show that the copyright is invalid. Universal FurnitureInt'l, Inc. v. Collezione
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`Europa USA, Inc., 618 F.3d 417, 428 (4th Cir. 2010). However, "the Copyright Office's practice
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`of summarily issuing registrations ... counsels against placing too much weight on registrations
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`as proof of a valid copyright." Id.
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`Derivativeworks are copyrightable, but the copyrightin a derivative work "extends only
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`to the material contributed by the author of suchwork ... and does not implyany exclusive right
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`in the preexisting material." 17 U.S.C. § 103(b). Originality in a derivative work is a low bar
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`requiring only a "faint trace of originality and ... a distinguishable variation." M. Kramer Mfg.
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`Co. v. Andrews, 783 F.2d 421, 438 (4th Cir. 1986). However, "the copyright in a derivative
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`workis thin." Harvester, Inc. v. Rule Joy Trammell + Rubio, LLC, 716 F. Supp. 2d 428, 438-39
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`

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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 8 of 25 PageID# 1166
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`(E.D. Va. 2010) (quoting Schrockv. Learning Curve Int'l, Inc., 586 F.3d 513, 521 (7th Cir.
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`2009). The copyright protection afforded to an architectural work is similarly thin. Id.
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`In 1990, Congress passed the Architectural Works Copyright Protection Act ("AWCPA")
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`allowing for copyright protection of buildings and architectural plans created subsequent to the
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`Act. Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 43 F. Supp. 3d 644, 658
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`(E.D. Va. 2014) aff'd, No. 14-2030,2015 WL 3854494 (4th Cir. June 23,2015). The AWCPA
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`allowed owners of architectural works to protect "the overall form as well as the arrangement
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`and composition of spaces and elements in the design, but does not include individual standard
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`features." 17 U.S.C. § 101. Persons may not register copyrights on "[standard configurations of
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`spaces, and individual standard features, such as windows, doors, and other staple building
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`components." 37 C.F.R. § 202.11. Purely utilitarian aspects of a work are similarly not
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`protectable. Universal Furniture, 618 F.3d at 429-30.
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`At the outset, the Court finds that the Reed Plans, assigned to Sari by Reed at Sari's
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`request, are not copyrightable because they are not original. The record shows that the Reed
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`Plans were not a work of "independent creation" and they did not contain "creativity." Sari paid
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`Reed $500 to copy an existing, apparently quite common, floor plan. (See Doc. 66-3 at 19
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`(explaining that Sari, Mr. Lee, and at least one other neighbor lived in houses with the same floor
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`plan)). The deposition of Sari on April 2,2015, makesthe lack of originality abundantlyclear:
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`Q.
`A.
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`And so, you said you paid Mr. Reed $500 to draw Mr. Lee's house, right?
`Yes.
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`(Doc. 66-4 at 17).
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`So, the plans that Mr. Reed gave to America's Home Place are identical to
`Q.
`Mr. Lee's House -
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`2AHP gives several arguments for why the transfer ofownership was invalid—lack ofconsideration, violation of
`the statute of frauds, etc. The Court need not address these here because theReed Plans were plainly a copy of
`existing plans.
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`8
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 9 of 25 PageID# 1167
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`A.
`Q.
`A.
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`Correct.
`— at 9412 Braymore?
`Yes.
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`(Doc. 66-3 at 21).
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`Originality is the sine qua non of copyright. Feist, 499 U.S. at 345. As the Reed Plans lack
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`originality, neither Reed, nor Sari, nor AHP for that matter, has ownership of them. Notably,
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`Reed himself expressed doubts about Sari's ability to copyright the plans. (Doc. 70-3).
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`The Highlighted Plans similarly lack the element of originality required for a valid
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`copyright. Because Sari obtained a registration on the Highlighted Plans as a derivative work
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`(Doc. 75-1 at 49), the burden shifts to AHP to rebut the presumption of validity that comes with
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`a registration from the Copyright Office. AHP does so by pointing out that each element of
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`Sari's work is either unoriginal—in that Sari got the idea for it from someone or something
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`else—or is not protectable under the AWCPA. (Doc. 67-1 at 17-20). The record provides that
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`Sari's ideas for the ten modifications came from other people's suggestions or from other houses
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`online or in the area. (See, e.g., Doc. 66-3 at 23-30 (explaining that the tic-tac-toe windows came
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`from a picture on Quaker Custom Homes' website and that the stone and stucco idea came from
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`a neighbor's house, etc.)).
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`While none of Sari's individual changes are original, Sari claims that his copyright is in
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`"a combination of a number of changes." (Doc. 66-3 at 15). Sari is correct that it is possible to
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`obtain a copyright in the arrangement of unoriginal, un-protectable elements. Universal
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`Furniture, 618 F.3d at 430 ("The mere fact that component parts of a collective work are neither
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`original to the plaintiff nor copyrightable by the plaintiff does not preclude a determination that
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`the combination of such component parts as a separate entity is both original and copyrightable."
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`(citations and quotation marks omitted)). However, in Sari's case, his arrangement falls within
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 10 of 25 PageID# 1168
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`the functional exception. Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg, LLC, 977 F.
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`Supp. 2d 567, 593 (E.D. Va. 2013) ("The Act also does not protect... design elements that are
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`functionally required." (citations omitted)). Sari's arrangement of a laundry room on the second
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`floor, a pantry next to the kitchen, an expanded left exterior wall, a different fireplace location to
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`allow more windows and more natural light, and an additional door in the study and in the
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`basement all serve to make the space more livable, not to make a design statement. The only
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`element Sari contributed that arguably goes toward design is the incorporation of stone and
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`stucco on the facade, staple building components not protectable under the AWCPA. See 37
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`C.F.R. § 202.11. The Court notes also that given the ubiquity of the floor plan used, the
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`Highlighted Plans likely fall into the "standard configuration" exception as well, as there are a
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`finite number of ways to arrange the elements of such a common layout. Cf Miller's Ale House,
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`Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1326 (11th Cir. 2012) ("[T]here are
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`only a limited number of ways to turn a rectangular building into a sports bar and restaurant.").
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`Additionally, AHP argues that the Court should invalidate Sari's copyright because Sari
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`purposefully misrepresented facts before the Copyright Office. Because AHP raises the issue of
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`fraud on the Copyright Office as a counterclaim (Answer ffl| 29-38), the Court will address it
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`briefly. The Court finds no support for the proposition that Sari defrauded the Copyright Office.
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`Sari sent the Copyright Office a two-page file containing the Reed Plans and when asked for
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`clarification, Sari sent the Highlighted Plans and specified that he sought a copyright in a
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`derivative work. (Doc. 66-2 at 1-4). It is clear from Sari's emails with the Copyright Office
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`(Doc. 70-6) that while he should have sent the Highlighted Plans to begin with, he was
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`forthcoming and had no intent to deceive the Copyright Office. However, while Sari did not
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`defraud the Copyright Office, AHP effectively rebuts the presumption of validity that Sari's
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 11 of 25 PageID# 1169
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`copyright registration carries, no reasonable jury could find that Sari owns a validcopyright, and
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`the Court grants AHP's Motion to Dismiss.
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`2. Notice
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`The Court rejects AHP's argumentthat if Sari owns a copyright it should be invalidated
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`for want of "statutorily-required notice" because the copyright that Sari claims originated after
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`March 1, 1989, and thus does not require notice. Charles Gamier, Paris v. Andin Int'l, Inc., 844
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`F. Supp. 89, 93 (D.R.1.1994) ("Effective as of March 1,1989, the copyright law was again
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`amended ... it made copyright notice permissible rather than mandatory."). In 1989, Congress
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`passed the Berne Convention Implementation Act of 1988 ("BOA") and the United States
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`joined the Berne Convention, an international agreement governing copyright law. Norma
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`Ribbon & Trimming, Inc. v. Little, 51 F.3d 45,48 (5th Cir. 1995). Among the changes
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`implemented was that, "as to works published after March 1,1989, the BCIA excuses all
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`copyright notice requirements as a condition to copyright." Bryce & Palazzola Architects &
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`Associates, Inc. v. A.M.E. Grp., Inc., 865 F. Supp. 401, 405 (E.D. Mich. 1994) (quotingNimmer
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`on Copyright § 7.02(C)). Notably, the Berne Convention also required the United States to begin
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`recognizing copyrights in architectural works, which resulted in the passage of the AWCPA. T-
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`Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97,109 (1st Cir. 2006). In this case, none of
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`the changes Sari made to the Reed Plans that could have resulted in the creation of a copyright
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`occurred before 2013. (See Doc. 68-1 at 9). Therefore, Sari's omission of a copyright symbol or
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`other forms of notice on the Highlighted Plans is not dispositive and the Court rejects AHP's
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`argument that Sari's copyright is invalid for lack of notice.
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 12 of 25 PageID# 1170
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`3. Equitable Estoppel
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`The Court rejects AHP's argument that Sari should be equitably estopped from bringing
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`his claims because it finds no evidence that Sari willfully misrepresented his intent to copyright
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`the Highlighted Plans. AHP properly points out that the elements of equitable estoppel are
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`(1) that the plaintiff had actual or constructive knowledge of the truth of a matter;
`(2) that he misrepresented or concealed material facts to the defendant; (3) that he
`intended or expected the defendant to rely upon those misrepresentations or
`concealments; (4) that the defendant did so act; and (5) that his reliance was both
`reasonable and detrimental.
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`Tavory v. NTP, Inc., 495 F. Supp. 2d 531, 537 (E.D. Va. 2007) (citations omitted). "To constitute
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`estoppel there must be deception relied on by the other to his detriment." U S.for Use & Benefit
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`ofHumble Oil & Ref Co. v. Fid & Cas. Co. ofNY., 402 F.2d 893, 897-98 (4th Cir. 1968)
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`(citations omitted).
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`AHP argues that Sari was deceptive because he concealed his belief that he owned a
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`copyright in the Highlighted Plans, and because Sari "intended for AHP to rely on his
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`representations: without those representations, AHP would not have been able to prepare
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`multiple versions of building plans for Sari." (Doc. 67-1 at 29). It is unclear why Sari would feel
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`obliged to discuss copyrights with the builder building his custom home. If any party would
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`have a reason to discuss the ownership of the derivative copyright in the Highlighted Plans it
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`would be AHP, the party that copyrights architectural plans as part of its business. (See, e.g.,
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`Doc. 69-1). Further, AHP's argument seems to be that it relied on Sari's lack of copyright
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`interest in the Highlighted Plans to "preparemultiple versions of buildingplans for Sari," but it
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`does not state why this would be the case. The implication is that if AHP knew that Sari owned
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`a valid copyright in the plans for his own house, then AHP could not continue working with Sari.
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`It seems that something is missing from AHP's estoppel argument because its logic is not readily
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 13 of 25 PageID# 1171
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`apparent. Detrimental reliance in this circumstance would be that AHP reasonably relied on
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`Sari's lack of copyright interest in using the Highlighted Plans for the Chens' house. Either way,
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`the record does not bear out willful deception or concealment on the part of Sari and therefore,
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`the Court will not invoke the doctrine of equitable estoppel.
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`4. Copying of Original Elements
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`The Court grants AHP's Motion for Summary Judgment because even if Sari had a valid
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`copyright, no reasonable jury could find that AHP copied original elements from Sari's plans as
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`the Chen Plans are not substantially similar in terms of the protected elements to the Highlighted
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`Plans.
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`Absent direct proof that the defendant copied the plaintiffs work, courts look at whether
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`the defendant had access to the plaintiffs work and whether the two works are "substantially
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`similar." Universal Furniture, 618 F.3d at 435. Substantial similarity involves a two-part test in
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`which the plaintiff must show that the works are (1) "extrinsically similar because they contain
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`substantially similar ideas that are subject to copyright protection" and (2) "intrinsically similar
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`in the sense that they express those ideas in a substantially similar manner from the perspective
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`of the intended audience of the work." Lyons P 'ship, L.P. v. Morris Costumes, Inc., 243 F.3d
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`789, 801 (4th Cir. 2001) (internal citations and quotation marks omitted). While extrinsic
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`similarity is an objective test where "expert testimony may be relevant" and the "analysis looks
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`to external criteria of substantial similarities in both ideas and expression," the intrinsic test looks
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`at "the total concept and feel ofthe works, but onlyas seen through the eyes of the ... intended
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`audience of the plaintiffs work." Universal Furniture, 618 F.3d at 435-36 (internal citations and
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`quotation marks omitted). The two-part substantial similaritytest is appropriate for copyright
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`13
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 14 of 25 PageID# 1172
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`infringement claims dealing with architectural works. See Charles W. Ross Builder, Inc. v. Olsen
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`Fine Home Bldg, LLC, 496 F. App'x 314 (4th Cir. 2012).
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`a. Extrinsic Similarity
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`The Court grants AHP's Motion for Summary Judgment because Sari fails to meet the
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`first element of the substantial similarity test as no reasonable jury could find that the Chen Plans
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`are extrinsically similar to the Highlighted plans. The court in Humphreys gives the test for
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`extrinsic similarity in the context of architectural works: "to conduct the extrinsic prong of the
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`substantial similarity inquiry properly, the elements or features of a given design must first be
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`disaggregated to determine whether each individual element or feature is protectable. And then,
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`if necessary, it must be determined whether the overallarrangement of those elements warrants
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`copyright protection under the AWCPA." 43 F. Supp. 3d at 668. Features not protected under
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`the AWCPA are "individual standard features, standard configurations of spaces, and
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`functionally required elements." Id. (citing 17 U.S.C. § 101). A court must then determine
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`whether a reasonablejury could find that any of the protected elements are extrinsically similar
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`between the two works and whether, if the arrangementas a whole is subject to copyright
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`protection, any reasonablejury could find that the arrangement of the two works is substantially
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`similar. Id. at 669.
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`In the present case, the Court must therefore determine first whetherany of the ten
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`elements that Sari claims as his contributions are protectable individually, and whetherthe
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`arrangement as a whole is protectable; and second, whetherany reasonablejury could find that
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`the ChenPlans and the Highlighted Plans are extrinsically similar in terms of protectable features
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`or overall arrangement.
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`14
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 15 of 25 PageID# 1173
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`Stone and Stucco Facade
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`Sari changed the front of the house in the Highlighted Plans by adding stone and stucco
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`where the Reed Plans originally called for brick. Adding stone and stucco to the facade of the
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`house is not protectable under the AWCPA because stone and stucco is a staple building
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`component. (Doc. 66-3 at 25 (stating that the stone and stucco facade was a feature of Sari's
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`neighbor's house)); see 31 C.F.R. § 202.11(d) (explaining that staple building components
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`cannot be registered). More importantly, even if the stone and stucco facade was protectable, no
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`reasonable jury could find that the Chen Plans and the Highlighted Plans are extrinsically similar
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`in terms of facade because the Chen Plans call for an all-brick facade with no stone or stucco.
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`(Compare Doc. 75-1 at 21, with Doc. 69-1 at 1).
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`Center Window
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`Sari replaced the two first-floor center windows in the Reed Plans with one large window
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`in the Highlighted Plans. Windows are standard features excluded from copyright protection. 37
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`C.F.R. § 202.11(d) ("The following structure, features or works cannot be registered ...
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`individual standard features, such as windows, doors, and other staple building components.").
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`Even if windows were protected, no reasonable jury could find that the center windows in the
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`Chen Plans are extrinsically similar to the center window in the Highlighted Plans. The Chen
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`plans call for two lower windows lining up with two windows on the second floor, while the
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`Highlighted Plans call for one large window on the first floor. The styles and shapes of the
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`windows in the two plans are also completely different. (Compare Doc. 75-1 at 21, with Doc. 69-
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`1 at 1).
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`15
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`

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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 16 of 25 PageID# 1174
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`Sloping Lot
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`Sari adjusted the slope of the lot on the right side of the house and added two basement
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`windows that were not present in the Reed Plans. Adjusting the slope of the lot is a not
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`protectable element because it is driven by function rather than design. See Humphreys, 43 F.
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`Supp. 3d at 661 (noting that design features must be "conceptually separable from the design's
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`utilitarian aspects"). The slope ofthe lot in the Highlighted Plans necessarily deviated from the
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`slope of the lot in the Reed Plans because the Highlighted Plans were for a home being built on a
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`new lot in Lorton, not on Mr. Lee's lot at 9412 Braymore. If windows were protectable, Sari
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`could argue that the basement windows inserted as a result of the sloping lot constituted design
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`choices, but the Chen Plans are not extrinsically similar in that respect because they call for no
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`basement windows on the front of the house. Furthermore, no reasonable jury could find the
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`slopes of the two lots extrinsically similar because the two lots slope completely differently. The
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`Highlighted Plans have a sharp slope on the right side while the Chen Plans call for a much more
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`gradual slope. (Compare Doc. 75-1 at 21-22, with Doc. 69-1 at 1-2).
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`Door to the Study
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`Sari added a door leading into the study in the Highlighted Plans where the Reed Plans
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`called for an open entrance. Like windows, doors are "staple building components"that may not
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`be registered and are thus not entitled to protection. 37 C.F.R. § 202.11(d). Even if doors were
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`protectable features, no reasonable jury could determine that the door leading intothe study in
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`the Chen Plans is extrinsically similar to the door leading into the study in the Highlighted Plans
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`because neither set of plans gives any detailsaboutthe interiordoors. They only reflectthe
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`intent to place a door leading intothe study rather than leaving the entrance open. (Doc. 69-2 at
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`4).
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`16
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`Case 1:14-cv-01454-GBL-JFA Document 85 Filed 09/02/15 Page 17 of 25 PageID# 1175
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`Eight Windows Arranged in a Tic-Tac-Toe Pattern
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`In the most noticeable change outside of the stone and stucco facade, Sari added eight
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`windows arranged in a tic-tac-toe pattern to the back of the house on the Highlighted Plans
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`where the fireplace was located in the Reed Plans. As stated above, windows are individual
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`standard features not warranting protection. However, what Sari seeks to protect is the
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`arrangementof eight windows in a tic-tac-toe pattern, and the arrangement of standard features is
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`protectable. See Charles W. Ross, 496 F. App'x at 317 ("Congress intended to extend protection
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`to the arrangement and composition of spaces and elements in architectural works."). The fact
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`that Sari got the idea from Quaker Custom Homes, however, suggests that the windows may be a
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`"standard configuration" not protectable under the AWCPA. (Doc. 66-3 at 26). Ultimately,
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`whether the tic-tac-toe windows are protectable makes little differen