`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`NORFOLK DIVISION
`
`CHARLES W. ROSS BUILDER, INC.,
`
`Plaintiff
`
`v.
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`OLSEN FINE HOME BUILDING, LLC,
`ET AL.,
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`Defendant.
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`CIVIL NO. 4:10cvl29
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`OPINION AND ORDER ON ATTORNEY'S FEES
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`This matter comes before the Court on Boathouse Creek Graphics, Inc.'s ("BCG")
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`Motion for Attorney's Fees and Costs pursuant to 17 U.S.C. §§ 505 and 1203(b). ECF No. 144.
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`For the reasons stated herein, BCG's Motion is GRANTED IN PART and DENIED IN PART.
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`I.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`On November 24, 2010, Charles W. Ross Builder, Inc., ("Ross Builder") filed an
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`Amended Complaint against BCG and others. ECF No. 21. Ross Builder alleged in its Amended
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`Complaint that BCG violated (1) the Federal Copyright Act, 17 U.S.C. § 101 el seq., Am.
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`Compl. 14; (2) the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 1202(b), jd, at 19;
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`and (3) the Lanham Act, 15 U.S.C. § 1125(a)(1)(A), id at 20.
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`Charles Ross and BCG are both companies that design homes, some of which are meant
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`to be built in the Ford's Colony subdivision of Williamsburg, Virginia. Charles Ross alleged in
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`their Amended Complaint that BCG, as part of actions that infringed Charles Ross's copyrights,
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`obtained access to Charles Ross's copyrighted plans for their Bainbridge home design via their
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`being filed, as required, in the James City County Code Compliance ("James City CCC") office
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`1
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`Case 4:10-cv-00129-RGD-DEM Document 150 Filed 03/19/14 Page 2 of 13 PageID# 3043
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`and the Ford's Colony Environmental Control Committee ("Ford's Colony ECC") office; or,
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`alternatively, from Rick and Jennifer Rubin ("the Rubins"), a couple who desired to build a
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`home in the Ford's Colony subdivision and who were provided with nontechnical copies of parts
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`of the Bainbridge home plans as part of a promotional mailer. Am. Comp. ffl[ 25-26, 29, ECF
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`No. 21. Charles Ross also alleged, on information and belief, that BCG actively removed Charles
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`Ross's copyright notice from the copyrighted works BCG accessed. kL ^ 33.
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`On September 29, 2011,
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`this Court granted BCG's Motion for Summary Judgment
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`regarding the copyright and DMCA claims and dismissed the Lanham Act claim for lack of
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`jurisdiction. Op. & Ord., ECF No. 67. Acting under a presumption that there was sufficient
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`access to support a copyright infringement claim, id. at 14, the Court found that BCG's design of
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`the Rubins' residence was not "substantially similar" to Charles Ross's copyrighted Bainbridge
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`plans under the "more discerning observer" standard, and thus granted the Motion for Summary
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`Judgment as to the copyright infringement claim. Id. at 19 (citing Trek Leasing. Inc. v. United
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`States. 66 Fed. CI. 8, 19 (Ct. Fed. CI. 2005)). The Court also granted the Motion for Summary
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`Judgment as to the DMCA claim because Charles Ross offered no evidence to support its
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`allegation in the Amended Complaint. Id. at 26-27.
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`Charles Ross filed notice of appeal regarding only the copyright claims on October 28,
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`2011. ECF No. 79. Transmission of the notice of appeal to the Fourth Circuit was completed on
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`November 1,2011. ECF No. 83.
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`On January 9, 2012, while Charles Ross's appeal was still pending, this Court granted
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`BCG's Motion for Attorney's fees as to the DMCA claims, but denied it as to the copyright
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`claims. Op. & Ord. 10, ECF No. 96. Attorney's fees were awarded as to the DMCA claim
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`primarily because Charles Ross "recited no facts whatsoever to support its allegations that
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`[BCG] removed copyright information from Plaintiffs plans in an attempt to pass of the plans as
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`their own." Id. at 3. Attorney's fees were not awarded on the copyright claim, on the other hand,
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`because the question of law regarding the extent of Charles Ross's copyright was not clearly
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`settled, thus making the suit reasonable, and because "in stark contrast to Plaintiffs claims
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`brought under the DMCA, Plaintiffs copyright claims were grounded in adequate factual bases."
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`Id. at 8; but see Op. & Ord. 14, ECF No. 67 ("[T]his Court presumes, for purposes of this Order,
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`that Defendants had access to Plaintiffs designs."). On February 8, 2012, BCG filed notice of
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`appeal of that decision, ECF No. 99, and Charles Ross cross-appealed the same day, ECF No.
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`101.
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`On November 8, 2012,
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`the Fourth Circuit
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`issued an Opinion vacating this Court's
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`Opinion and Order granting summary judgment on the grounds that a different legal test should
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`have been applied to determine "substantial similarity" between the contested architectural
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`works. Op. of USCA, ECF No. 109. The same day, the Fourth Circuit also vacated this Court's
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`Order concerning attorney's fees because it had also vacated the underlying award of summary
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`judgment. Op. of USCA, ECF No. 111.
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`BCG filed a Renewed Motion for Summary Judgment on December 21, 2012. ECF No.
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`119. The Court granted that Motion on September 30, 2013. ECF No. 142. In contrast to the
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`prior Opinion and Order in which the Court presumed that the defendants had access to Charles
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`Ross's copyrighted design, Op. & Ord. 14, ECF No. 67, the Court in this second Opinion and
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`Order specifically found that Charles Ross "fail[ed] to raise a genuine issue of material fact
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`concerning BCG's access to the Bainbridge design"—an essential element of a copyright
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`infringement claim, Op. & Ord. 21, ECF No. 142. There was no evidence of direct access by
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`BCG, and the Court held that Charles Ross did not meet the standard for "intermediary access,"
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`Case 4:10-cv-00129-RGD-DEM Document 150 Filed 03/19/14 Page 4 of 13 PageID# 3045
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`or an assumption of access based on the relationship between the Rubins and BCG. Id. at 24-26,
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`29-30.
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`BCG filed the instant Motion for Attorney's Fees and Costs on November 13, 2013. ECF
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`No. 144. Charles Ross filed a Memorandum in Opposition on November 27, 2013, ECF No. 146,
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`and BCG filed its Rebuttal Brief on December 5, 2013, ECF No. 147. The Court has reviewed all
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`of the filings and held a hearing on the motion on January 21, 2014. The matter is now ripe for
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`decision. The Court, after weighing all relevant factors, GRANTS BCG's Motion for its defense
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`of Charles Ross's DMCA claim, but DENIES the Motion regarding BCG's defense of the
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`copyright claim.
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`II.
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`FEES
`ATTORNEY'S
`AWARDED FOR COPYRIGHT
`ARE NOT
`INFRINGEMENT CLAIM BUT ARE AWARDED FOR DMCA CLAIM
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`In the instant Motion, BCG seeks attorney's fees for the copyright claim under 17 U.S.C.
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`§ 505 and the DMCA claim under 17 U.S.C. § 1203(b). Both statutes grant the Court discretion
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`in awarding attorney's fees. While BCG acknowledges that the Court in its prior order on
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`attorney's fees awarded them only on the DMCA claim, Op. & Ord. 10, ECF No. 96, it argues
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`that the Court's subsequent findings of fact made after the case was remanded mean that it is
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`now entitled to attorney's fees from defending against the copyright claim as well, Rebuttal Brief
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`3-4, ECF No. 147. For the reasons set forth below, however, the Court FINDS that even in light
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`of its more recent factual findings, an award of attorney's fees for the copyright claim is not
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`appropriate. On the other hand, the Court AWARDS attorney's fees to BCG for its defense of
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`the DMCA claim.
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`A.
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`Copyright Infringement Claim
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`"Our legal system generally requires each party to bear his own litigation expenses,
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`including attorney's fees, regardless whether he wins or loses. Indeed, this principle is so firmly
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`Case 4:10-cv-00129-RGD-DEM Document 150 Filed 03/19/14 Page 5 of 13 PageID# 3046
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`entrenched that it is known as the 'American Rule.'" Fox v. Vice. 131 S. Ct. 2205, 2213 (2011).
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`However, the Copyright Act states that "[i]in any civil action under this title, the court in its
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`discretion may allow the recovery of full costs by or against any party other than the United
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`States," and that "the court may also award a reasonable attorney's fee to the prevailing party as
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`part of the costs." 17 U.S.C.A. § 505. Whether to award attorney's fees, and the amount of fees
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`to be awarded, is a matter wholly within the court's discretion. Fogartv v. Fantasy. Inc., 510 U.S.
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`517, 533 (1994); Henslev v. Eckerhart. 461 U.S. 424 (1983); Diamond Star Bdle. Corp. v. Freed.
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`30 F.3d 503, 507 (stating that a district court need not award costs and attorney's fees as a matter
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`of course).
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`The Fourth Circuit has instructed that, in making its determination as to whether to award
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`attorney's fees and costs, a district court should consider the following four factors: (i) the
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`motivation of the parties; (ii) the objective reasonableness of the legal and factual positions
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`advanced; (iii) the need in particular circumstances to advance considerations of compensation
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`and deterrence; and (iv) any other relevant factor presented. Rosciszewski v. Arete Assocs.. Inc..
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`1 F.3d 225, 234 (4th Cir. 1993). A finding of bad faith is not necessary in order to award
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`attorney's fees, but it is one factor to consider. Rosciszewski, 1 F.3d at 233-34.
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`1.
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`Charles Ross Did Not Act in Bad Faith
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`The first Rosciszewski factor, the motivation of the parties, tilts in favor of Charles Ross.
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`The Court previously found that, although contacting BCG before filing suit for copyright
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`infringement might have been "a more appropriate response," Charles Ross had no legal
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`obligation to do so, and there was no evidence that Charles Ross acted in bad faith. Op. & Ord. 6,
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`ECF No. 96. BCG does not argue that anything has changed regarding this factor since the prior
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`attorney's fees order, and therefore the Court's conclusion stands: Charles Ross did not act in
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`bad faith in bringing this lawsuit. However, because a finding that Charles Ross did not act in
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`Case 4:10-cv-00129-RGD-DEM Document 150 Filed 03/19/14 Page 6 of 13 PageID# 3047
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`bad faith is not dispositive of the attorney's fees question, Rosciszewski. 1 F.3d at 233-34, the
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`Court, continues on to analyze the remaining factors.
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`2.
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`Charles Ross's Legal and Factual Positions Were Not Objectively
`Unreasonable
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`In assessing the objective reasonableness of a plaintiffs claims, courts consider "whether
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`the positions advanced by the parties were frivolous, on the one hand, or well-grounded in law
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`and fact, on the other hand." SER Solutions. Inc. v. Masco Corp.. 103 Fed. Appx. 483, 489 (4
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`Cir. 2004). A plaintiffs position is frivolous, and therefore objectively unreasonable, where the
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`issue of substantial similarity in a copyright action is not "a close or complex question." See
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`Earth Flag Ltd. v. Alamo Flag Co.. 154 F. Supp. 2d 663, 668 (S.D.N.Y. 2001). A grant of
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`summaryjudgment does not necessarily mean that the losing party's positions were objectively
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`unreasonable. Tessler v. NBC Universal. Inc.. No. 2:08cv234, 2010 WL 3835061 (E.D.Va. Sept.
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`29, 2010) ("[Sjimply because a defendant is successful in obtaining summary judgment does not
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`necessarily mean that the plaintiffs position was frivolous or patently unreasonable" (internal
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`quotation marks omitted)). However, "when a party has pursued a patently frivolous position, the
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`failure of a district court to award attorney's fees and costs to the prevailing party will, except
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`under the most unusual circumstances, constitute an abuse of discretion." Diamond Star. 30 F.3d
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`at 506.
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`The copyright law regarding architecture has broadened so far as to create colorable
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`claims for copyright infringement even between homes built in the Georgian style. In light of this
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`fact, Charles Ross's legal and factual positions in this case, while unable to support a claim of
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`copyright infringement, were not so objectively unreasonable as to merit an award of attorney's
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`fees to BCG in defending against them. This Court previously held, in its original Opinion and
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`Order regarding attorney's fees,
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`that Charles Ross's legal claims were not
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`frivolous or
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`Case 4:10-cv-00129-RGD-DEM Document 150 Filed 03/19/14 Page 7 of 13 PageID# 3048
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`objectively unreasonable. Specifically, although Charles Ross's copyright afforded it only "thin"
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`protection against infringement because its design primarily consisted of unprotected individual
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`architectural elements, "at the time of this Court's ruling on Summary Judgment, the Fourth
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`Circuit had not squarely addressed certain issues raised by Plaintiffs copyright suit." Op. & Ord.
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`8, ECF No. 96. BCG has not cited anything in the record to show that Charles Ross's legal
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`claims were in fact objectively unreasonable, and in fact in the meantime the Fourth Circuit held
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`on appeal that Charles Ross's claims deserved to be decided under a different legal test than that
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`applied at first. Op. of USCA 3, ECF No. 109. This lends credence to the conclusion that—again,
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`though unable to survive BCG's motion for summary judgment—Charles Ross's legal claims
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`were not frivolous.
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`Even taking into account the further findings of fact made by the Court subsequent to the
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`case being remanded by the Fourth Circuit, as BCG rightly argues should be done, Charles
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`Ross's factual positions still do not rise to the level of objective unreasonableness necessary to
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`award BCG attorney's fees for the copyright infringement claim. One of the primary factual
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`questions in this Court's second Opinion and Order granting summary judgment is whether
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`Charles Ross had a reasonable basis for claiming that BCG had access to the copyrighted
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`Bainbridge plans. The Court FINDS that although no such reasonable basis existed for the claim
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`that BCG had direct access to the Bainbridge plans, Charles Ross's reliance on an inference of
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`intermediary access was not objectively unreasonable.
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`As BCG notes, the Court did find that there was no evidence BCG had direct access to
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`the copyrighted works. Rebuttal Brief 3-4, ECF No. 147. The fact that Charles Ross had put
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`pictures of the Bainbridge home on its website, that part of the home was visible from the street,
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`and that the plans for the home were filed with the James City CCC and Ford's Colony ECC
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`Case 4:10-cv-00129-RGD-DEM Document 150 Filed 03/19/14 Page 8 of 13 PageID# 3049
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`"merely create[d] the possibility of access" and clearly amounted to "mere speculation," thus
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`failing to raise any question of material fact that BCG had direct access to the Bainbridge plans.
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`Id. at 29-30 (quoting Building Graphics.
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`Inc. v. Lennar Corp.. 866 F. Supp. 2d 530, 541
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`(W.D.N.C. 2011)). Further, Charles Ross presented no evidence to contradict the Affidavit of
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`Lisa Sawin, the President of BCG, stating that she had never seen the Bainbridge design before
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`the initiation of the instant suit. Id at 30. Thus, if Charles Ross's factual positions rested solely
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`on this point, they could not be considered objectively reasonable.
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`Charles Ross's position regarding intermediary access, on the other hand, was objectively
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`reasonable—albeit ultimately unsuccessful. The Court, in its second Opinion and Order granting
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`summary judgment in favor of BCG, analyzed the question whether BCG could be attributed
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`with intermediary access to the Bainbridge design based on the uncontested fact that the Rubins
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`had access to a nontechnical version of the plans. Op. & Ord. 22, ECF No. 142. Under Fourth
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`Circuit precedent at the time the suit was filed, the answer to that question was not immediately
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`obvious, and thus the claim cannot be said to be frivolous or objectively unreasonable.
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`In Towler v. Sayles. 76 F.3d 579 (4th Cir. 1996), Virginia Towler had sent a script to
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`SCS Films, a company she mistakenly thought was associated with director and screenwriter Jon
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`Sayles. The company said they would forward the script on to Sayles, but at no time did Towler
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`communicate with Sayles directly and there was no evidence that the script was sent to Sayles or
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`that he ever received it. The Fourth Circuit held that there was insufficient evidence to allow a
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`jury to infer that
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`there was intermediary access between Sayles and SCS Films—their
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`relationship was too tenuous. Ja\ at 583. In Bouchat v. Baltimore Ravens. Inc.. 241 F.3d 350 (4th
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`Cir. 2000), on the other hand, the facts did support an inference of intermediary access. Frederick
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`Bouchat, an amateur artist, independently created a proposed team logo for Baltimore's new
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`8
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`Case 4:10-cv-00129-RGD-DEM Document 150 Filed 03/19/14 Page 9 of 13 PageID# 3050
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`football
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`team, the Ravens. He met with John Moag,
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`the Chairman of the Maryland Stadium
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`Authority, about the logo and Moag said he would pass the drawings on to the team's leadership
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`for consideration. Bouchat faxed the drawing to Moag's office on April 1 or 2, 2006. Moag
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`shared an office with David Modell, the owner of the Ravens. On April 2, 2006, Modell met with
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`a representative from the NFL design team to discuss the Ravens'
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`logo, which, when it was
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`unveiled in June 1996, was substantially similar to Bouchat's proposal. In that case, the Fourth
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`Circuit held that an inference of intermediary access was warranted based on Moag and Modell's
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`close relationship, as evidenced by their shared office. Id. at 354.
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`The relevant facts in the instant case, in which the Rubins had uncontested direct access
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`to some of the Bainbridge plans and exchanged many emails with BCG regarding the design of
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`the Rubins' house, though they did not share an office, fall in between those in Towler and
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`Bouchat. Although the Court concluded that
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`there was not a sufficiently close relationship
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`between BCG and the Rubins to support an inference of intermediary access, Op. & Ord.
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`Granting Summ. Judgmt. 26, ECF No. 142, Charles Ross's claim that such a relationship existed
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`based on the uncontested facts was not objectively unreasonable in light of Fourth Circuit
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`precedent regarding intermediate access.
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`Under the second Rosciszewski factor, the objective reasonableness of the legal and
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`factual positions taken, Charles Ross's claims were not "patently frivolous" or objectively
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`unreasonable, even in light of the new factual findings made by the Court after the case was
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`remanded. Thus, this factor weighs in favor of Charles Ross as well.
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`3.
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`Considerations of Deterrence and Compensation
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`The Supreme Court has stated that both plaintiffs and defendants should be encouraged
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`to litigate meritorious copyright claims and defenses because "it is peculiarly important that the
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`boundaries of copyright law be demarcated as clearly as possible." Fogertv v. Fantasy. Inc.. 510
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`Case 4:10-cv-00129-RGD-DEM Document 150 Filed 03/19/14 Page 10 of 13 PageID# 3051
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`U.S. 517, 527 (1994). The Fourth Circuit has instructed District Courts to further the policy
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`objective of deterring frivolous copyright
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`lawsuits (or egregious cases of infringement) by
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`compensating the parties forced to litigate them. Diamond Star, 30 F.3d at 506 ("[T]he goal of
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`deterring a party from pursuing frivolous litigation is furthered by the imposition of attorney's
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`fees and costs ....").
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`However, as discussed above, Charles Ross's suit was not frivolous. The case at bar
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`provided a vehicle for the Fourth Circuit
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`to clarify what
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`test
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`to use in deciding whether
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`architectural works are "substantially similar" for copyright
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`infringement purposes. Op. of
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`USCA 15, ECF No. 109. Charles Ross's claim also allowed this Court to further demarcate when
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`the inference of "intermediary access" is available in copyright cases. Op. & Ord. Granting
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`Summ. Judgmt. 22-26, ECF No. 142. Charles Ross's lawsuit
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`in fact helped more clearly
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`demarcate the boundaries of copyright
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`law, and thus the Court FINDS that
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`the interests of
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`compensation and deterrence do not favor an award of attorney's fees in this case.
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`4.
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`Other Relevant Factors
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`The Court also takes into consideration the ability of Charles Ross to pay potential
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`attorney's fees, and the ability of BCG to absorb the costs of litigation if attorney's fees are not
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`awarded. Charles Ross asserts that it "has had its own legal fees to absorb,
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`is currently in a
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`negative cash flow position and cannot also afford to pay a substantial fee award comprised of all
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`of BC Graphics' fees and costs." Mem. in Opp. 13, ECF No. 146. However, it is also inescapably
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`true that Charles Ross was the party who chose to risk litigation despite the thin protection
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`granted by its copyright of a Georgian-style home design. BCG argues that its legal fees, slightly
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`exceeding its gross receipts for the year 2010, mean that it is entitled to compensation. Mem. in
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`Supp. 3—4, ECF No. 145. Further, although this Court does not find that Charles Ross acted in
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`bad faith, the effect of the instant litigation may well be to deter some of its competitors from
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`10
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`Case 4:10-cv-00129-RGD-DEM Document 150 Filed 03/19/14 Page 11 of 13 PageID# 3052
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`building Georgian-style homes in Ford's Colony—an outcome which will inure, at least to some
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`extent, to Charles Ross's benefit.
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`While the Court does FIND that
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`this
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`factor slightly favors BCG, all
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`the other
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`Rosciszewski factors weigh against an award of attorney's fees. The Court, therefore, DENIES
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`BCG's Motion for Attorney's Fees and Costs insofar as the copyright infringement claim is
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`concerned. ECF No. 144. Ultimately,
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`the Copyright Act itself, as amended in 1990 by the
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`Architectural Works Copyright Protection Act, is responsible for the confusion that allowed
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`Charles Ross to assert a colorable legal claim for copyright infringement in this matter. Congress
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`has foisted on the nation a system of copyrights for architectural works largely devoid of guiding
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`principles as to what constitutes infringement, leaving to this Court the job of fleshing out what
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`is and is not "substantially similar." In this context, although this copyright claim was unable to
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`survive summary judgment, the Court declines to award attorney's fees for BCG's defense of the
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`claim when the dispute found its source in a broad yet vague statutory regime rather than in bad
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`faith.
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`B.
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`Attorney's Fees Awarded for Digital Millennium Copyright Act
`Claim
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`The DMCA provides that a court "in its discretion may award reasonable attorney's fees
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`to the prevailing party." 17 U.S.C. § 1203(b)(5). In deciding whether to award attorney's fees
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`under the DMCA, "the Court may consider the motive, reasonableness of the fee, deterrence and
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`compensation, and the ability of the nonmoving party to pay." Dahn World Co., Ltd. v. Chung.
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`No. RWT 06-2170, 2009 WL 277603, *2 (Feb. 5, 2009) (citing Rosciszewski v. Arete Assocs..
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`Inc.. 1 F.3d 225, 234 (4th Cir. 1993)).
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`The Court ordered Charles Ross to pay BCG's attorney's fees for the defense of the
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`DMCA claim on January 9, 2012. ECF No. 96. This order, along with the original grant of
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`11
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`Case 4:10-cv-00129-RGD-DEM Document 150 Filed 03/19/14 Page 12 of 13 PageID# 3053
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`summary judgment in favor of BCG, was subsequently vacated on appeal by the Fourth Circuit
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`and the case was remanded for further proceedings. ECF Nos. 110, 111. However, Charles Ross
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`does not contend that any material facts have changed in regards to their liability for BCG's
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`attorney's fees incurred while defending against the DMCA claim, and concedes that the Court's
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`reasoning and conclusion on that count should still stand.
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`BCG is again the prevailing party after the case was remanded, all four of the relevant
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`factors still support an award of attorney's fees regarding the DMCA claim, and Charles Ross
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`does not contest liability for DMCA attorney's fees. The DMCA claim, in fact, was frivolous and
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`lacking any basis in law or fact. BCG's Motion for Attorney's Fees on Charles Ross's DMCA
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`claim, therefore, is GRANTED.
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`Pursuant to the Court's prior Opinion and Order regarding attorney's fees, BCG filed an
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`affidavit representing that its attorney's fees attributable to the defense against Charles Ross's
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`DMCA claim totaled $13,760.00. Casey Affidavit H 11, ECF No. 98. Charles Ross did not
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`contest the reasonableness of that figure at the hearing on the instant motion on January 21,
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`2014. The Court therefore FINDS that the attorney's fees BCG incurred in defending against
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`Charles Ross's DMCA claim total $13,760.00.
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`III.
`
`CONCLUSION
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`For
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`the reasons stated above, BCG's Motion for Attorney's Fees and Costs is
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`GRANTED in part and DENIED in part. Charles Ross is hereby ORDERED to pay Boathouse
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`Creek Graphics, Inc., attorney's fees in the amount of $13,760.00 for the expenses incurred in
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`defending against Charles Ross's DMCA claim.
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`The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.
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`IT IS SO ORDERED.
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`Case 4:10-cv-00129-RGD-DEM Document 150 Filed 03/19/14 Page 13 of 13 PageID# 3054
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`Robert G. Doumar/
`Senior United Statr
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`UNITED STATES DISTRICT JUDGE
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`Norfolk, VA
`March Jg. 2014
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`13