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Sedgewick Homes, LLC v. Stillwater Homes, Inc.

United States District Court, W.D. North Carolina, Statesville Division

July 28, 2017

SEDGEWICK HOMES, LLC, Plaintiff,
v.
STILLWATER HOMES, INC., Defendant.

          ORDER

          RICHARD L. VOORHEES UNITED STATES DISTRICT JUDGE

         THIS MATTER IS BEFORE THE COURT on Plaintiff Sedgewick Homes, LLC's (Sedgewick) Motion for Partial Summary Judgment (Doc. 45) and Defendant Stillwater Homes, Inc.'s (“Stillwater”) Motion for Summary Judgment (Doc. 63). The parties have submitted the appropriate responses and replies (Docs. 54, 60, 67, 73), and this matter is ripe for disposition. For the following reasons, Sedgewick's Motion for Partial Summary Judgment (Doc. 45) is DENIED and Stillwater's Motion for Summary Judgment (Doc. 63) is DENIED.

         I. BACKGROUND

         Sedgewick and Stillwater are both in the business of building houses and both operate in the Northwestern Piedmont region and Northeastern Mountain region of North Carolina. Sedgewick commenced operation in 2009 and is owned by David Tucker. (Doc. 47-2 at 2). Stillwater is owned by Robert Baldwin and one of Stillwater's project managers and building plan designers is Juan Jose Galvez Caballero. (Doc. 54-2 at 2, Doc. 54-4 at 2). As part of its business model, Sedgewick designs architectural plans exclusively for its own use. (Doc. 47-2 at 3). Sedgewick specializes in building Craftsman style homes and designed a series of related layouts and plans titled the “the Spring Valley, ” “the Quail Valley, ” and “the Laurel Valley” (collectively “the Valley Series”). Id. The Valley Series ranges in size from 1, 694 square feet to 2, 362 square feet. (See Docs. 47-3, 47-4, 47-5). Each building plan in the Valley Series features three bedrooms, a concrete front porch, an entranceway/foyer, an open or semi-open kitchen/living room/breakfast nook area, a dining room off of the foyer, a two-car garage facing the street, and a laundry area to the rear of the garage. (See Doc. 47-3 at 2, Doc. 47-4 at 2, Doc. 47-5 at 2). All three building plans in the Valley Series share a common layout, including a split floor plan that places the master bedroom on the opposite side of the house from the non-master bedroom. (See Doc. 47-3 at 2, Doc. 47-4 at 2, Doc. 47-5 at 2). The larger Quail Valley and Spring Valley plans include a half bath between the garage and the master suite, as well as an optional second floor bonus room above the garage. (See Doc. 47-3 at 2, Doc. 47-4 at 2). Also common to the Quail Valley and Spring Valley are the inclusion of his and her walk in closets attached to opposite ends of the master bathroom. (See Doc. 47-3 at 2, Doc. 47-4 at 2). Additionally, the orientation of the fixtures and appliances in the kitchen and the master bathroom, including the placement of the stove and sink relative to the kitchen island, split vanities in the master bathroom, and a water closet within the master bathroom, are common to both the Quail Valley and Spring Valley. (See Doc. 47-3 at 2, Doc. 47-4 at 2). Finally, Sedgewick offers all three plans in the Valley Series in four similar elevations[1] from which a customer may choose based on preferences regarding window placement, the footing design, and the porch design. (See Doc. 47-3 at 3, Doc. 47-4 at 3, Doc. 47-5 at 3). In June 2013, Sedgewick obtained certificates of registration for the Quail Valley architectural work and for the Quail Valley technical drawing.[2] (Doc. 1-1 at 2, Doc. 1-2 at 2; see also Doc. 47-6 at 2-3, Doc. 47-7 at 2-3).

         This litigation arises from two prospective customers of Sedgewick, Christopher Bart Bivins and Gretchen Wyne Bvins (collectively “Bivins”) and Joseph Lynn Shoemaker and Emily Groce Shoemaker (collectively “Shoemaker”), visiting Sedgewick and viewing Sedgewick models but ultimately contracting with Stillwater for the construction of their new homes. (See Doc 1 at 5; see also Sedgewick Homes, LLC v. Stillwater Homes, Inc., et al., Case No. 5:16-cv-00050-RLV-DSC, Doc. 1 at 5). In October 2013, Bivins visited Sedgewick for the first time and viewed the Spring Valley model. (Doc. 47-10 at 14). Bivins liked the floor plan of the Spring Valley and received a binder of materials on Sedgewick's homes as well as a compact disc (CD) containing the layouts for Sedgewick's homes. Id. at 15-16. In October 2014, Bivins visited Sedgewick a second time and again viewed the Spring Valley model.[3] In the weeks surrounding Bivins's October 2014 visit to Sedgewick, Bivins met with Stillwater on several occasions. (Doc. 47-10 at 25, 37-38). During Bivins's meetings with Stillwater, Bivins informed Stillwater that Bivins liked Sedgewick's Craftsman style home designs and asked Stillwater if it had a house plan like the Spring Valley. (Doc. 47-9 at 3). Bivins also sent Baldwin an e-mail asking for a price quote on the Spring Valley specifications, to which Baldwin replied that he would provide Bivins with the requested price quote. (Doc. 47-13 at 2, Doc. 48-2 at 2). During the course of discussions with Stillwater, Bivins received a building plan from Caballero. (Doc. 47-9 at 4). Bivins viewed the plan provided by Caballero as “similar” to Sedgewick's Spring Valley plan and Baldwin, in an email communication with Bivins, acknowledged that the plan Caballero provided to Bivins was “very similar” to Sedgewick's Spring Valley plan. (Doc. 47-10 at 57, Doc. 48-3). Bivins and Caballero also discussed a list of modifications to the stock plan provided by Stillwater and Caballero sent Bivins an updated plan that incorporated Bivins's requested modifications. (See Doc. 47-12 at 2). In January 2015, Bivins entered into a contract with Stillwater for the construction of their new home. (Doc. 47-15).

         Shoemaker's interactions with Sedgewick and Stillwater follow a similar path as Bivins's interactions with Sedgewick and Stillwater. Shoemaker originally visited Sedgewick in 2011 and visited Sedgewick for a second time in December 2014. (Doc. 47-16 at 2). During both visits, Shoemaker toured Sedgewick's Quail Valley model. (Doc. 47-17 at 13, 21-23). During Shoemaker's December 2014 visit to Sedgewick, Shoemaker expressed an interest in building a home based on the Quail Valley plan with the optional second floor bonus room. Id. at 17-18, 21-23; (see also Doc. 54-8 at 4). During Shoemaker's December 2014 visit to Sedgewick, Shoemaker received sales materials and a CD containing the layouts for Sedgewick's homes. (Doc. 47-17 at 17-18, 21-23; see also Doc. 54-8 at 4). In early 2015, Shoemaker visited Stillwater, telling Stillwater that they liked Sedgewick's models but were looking for a better price.[4] (Doc. 47-16 at 2). Shoemaker denies providing Stillwater any of Sedgewick's plans or sales materials or informing Stillwater about Sedgewick's price quote;[5] however, Shoemaker provided an interrogatory response indicating that Stillwater informed him that it had recently built a home like the Sedgewick model home and that it could build the home Shoemaker liked for less than Sedgewick.[6] (Doc. 47-16 at 3; Doc. 47-17 at 25, 33). In the course of discussing building a new home with Stillwater, Shoemaker received a building plan from Stillwater, which Stillwater called the “Trent.” (Doc. 47-14 at 28-29). Shoemaker admits that the Trent is “similar” to Sedgewick's Quail Valley. (Doc. 47-17 at 26, 28). In May 2015, Shoemaker entered into a contract with Stillwater for the construction of their new home. (Doc. 47-23).

         As further background on the Trent plan and Stillwater's alleged reliance on the Trent plan to obtain Bivins's and Shoemaker's business, Baldwin provided a declaration stating that he purchased a licensed plan entitled “the Henderson” in 2007 and that the Trent is a modification of the Henderson. (Doc. 54-2 at 2; see also Doc. 64-10). Baldwin further declares that the Henderson has a copyright date of November 8, 1996, (Doc. 54-2 at 2), but Stillwater does not provide a certificate of registration supporting Baldwin's declaration in this respect and the plan provided by Stillwater is undated.[7] Caballero also submitted a declaration in which he represents that he created the Trent plan in 2013 based on a modification of the Henderson. (Doc. 54-4 at 2). Baldwin and Caballero both deny receiving any of Sedgewick's plans from Bivins or Shoemaker. Id. at 3; (Doc. 54-2 at 4). Baldwin, however, admits that, after Bivins visited, he likely looked at the Sedgewick plans available on Sedgewick's website when preparing information, including pricing, for Bivins. (Doc. 54-2 at 4-5).

         In January 2016, two employees of Sedgewick noticed a home in the area that, from the exterior, looked like the Sedgewick's Quail Valley home but which had a sign bearing Stillwater's name in front of the home. (Doc. 54-8 at 9). The home Sedgewick's employees observed was Shoemaker's new home. Id. One of the Sedgewick employees subsequently gained access to the interior of Shoemaker's home and concluded that the interior layout of the home was “strikingly similar” to Sedgewick's Quail Valley. Id. at 4-5. Sedgewick filed two five-count complaints, one against Bivins and Stillwater and a second against Shoemaker and Stillwater. (See Doc. 1; Sedgewick Homes, LLC v. Stillwater Homes, Inc., et al., Case No. 5:16-cv-00050-RLV-DSC, Doc. 1). In the complaints, Sedgewick raises claims for (1) federal copyright infringement, against all defendants and under 17 U.S.C. § 501; (2) contributing to and/or inducing federal copyright infringement, against Bivins and Shoemaker and under 17 U.S.C. § 501; (3) federal unfair competition-reverse passing off, against Stillwater and under 15 U.S.C. § 1125(a)(1)(A); (4) a North Carolina state law claim against Stillwater under the Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-11, et seq.; and (5) a North Carolina common law claim for unfair competition against Stillwater. (Doc. 1 at 7-12; Sedgewick Homes, LLC v. Stillwater Homes, Inc., et al., Case No. 5:16-cv-00050-RLV-DSC, Doc. 1 at 7-11). Both complaints seek relief in the form of an injunction preventing future infringement by Stillwater, the impounding and destruction of all copies of the allegedly infringing plan held by Stillwater, monetary damages, costs and fees, and treble damages relative to the unfair and deceptive trade practices claims. (Doc. 1 at 12-14; Sedgewick Homes, LLC v. Stillwater Homes, Inc., et al., Case No. 5:16-cv-00050-RLV-DSC, Doc. 1 at 12-13). Sedgewick's two actions were consolidated for the purpose of discovery and trial as to the claims against Stillwater, with the actions being stayed as to Bivins and Shoemaker. (Docs. 40, 41; Sedgewick Homes, LLC v. Stillwater Homes, Inc., et al., Case No. 5:16-cv-00050-RLV-DSC, Docs. 42, 43).

         Sedgewick and Stillwater have filed cross-motions for summary judgment. (Docs. 45, 63). In support of its Motion for Partial Summary Judgment, Sedgewick seeks summary judgment on its copyright infringement claims against Stillwater, arguing that the Quail Valley is a validly copyrighted work and that the undisputed facts show that Stillwater actually copied the Quail Valley plan. (Doc. 48 at 18-25). Sedgewick alternatively argues that if the Court cannot conclude that Stillwater actually copied the Quail Valley plan, Sedgewick is entitled to summary judgment because Stillwater had access to the Quail Valley plan and the Trent plan is so “substantially similar” to the Quail Valley plan as to permit the Court to conclude that Stillwater infringed Sedgewick's valid copyright. Id. at 26-29. In response to Sedgewick's motion, Stillwater argues that (1) Sedgewick's copyrights relative to the Quail Valley are not valid because there is nothing unique or original about the Quail Valley; (2) the evidence does not establish that Stillwater had access to the Quail Valley plan, no less that Stillwater actually copied the Quail Valley plan; (3) Stillwater independently created the Trent plan before it had any possible access to the Quail Valley plan; (4) the Trent plan and Bivins's and Shoemaker's homes differ from the Quail Valley in many respects; and (5) Sedgewick does not identify what features are unique to the Quail Valley. (Doc. 54 at 6-21).

         In support of its motion for summary judgment, Stillwater rehashes most of its arguments against Sedgewick's motion for partial summary judgment, but concedes that, for purposes of its motion, there is a genuine issue of material fact as to whether Sedgewick possess a valid copyright for the Quail Valley.[8] (Doc. 65 at 10-25). Stillwater also further advances its independent creation argument, pointing to an image of a computer screen allegedly showing a January 31, 2013 creation date for the Trent plan. Id. at 2, 15, 22-23; (Doc. 73 at 2, 8-10). Sedgewick's response to Stillwater's motion for summary judgment raises arguments similar to those found in Sedgewick's memorandum in support of its motion for partial summary judgment, with Sedgewick placing emphasis on comparisons, or overlays, of the Quail Valley plan and the Trent plan that served as the basis for Bivins's and Shoemaker's homes. (Doc. 67 at 6-9; see also Doc. 67-2 (overlay of building plans), Doc. 67-4 (overlay of elevations)). Sedgewick also contends that the evidence Stillwater relies on to establish that the Trent plan predates Bivins and Shoemaker visiting Stillwater was not provided by Stillwater in discovery, the evidence not provided in discovery should be stricken from the record, and that Stillwater's evidence of independent creation is not reliable. Id. at 11-13. In reply to Sedgewick's argument about evidence not being provided in discovery, Stillwater implicitly concedes that it did produce the image of the computer screen allegedly showing the creation date of the Trent plan but contends that Sedgewick's discovery requests did not encompass the image.[9] (Doc. 73 at 9).

         II. DISCUSSION

         A. Copyright Protection for Architectural Works & Treatment as Compilations

         In 1990, Congress enacted the Architectural Works Copyright Protection Act (“AWCPA”), which explicitly extended copyright protection to “architectural works.” Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 537 (4th Cir. 2015); see also Pub. L. No. 101-650, § 701-706 (1990); 17 U.S.C. § 102(a)(8). For purposes of copyright protection, the term “architectural work” is defined as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” 17 U.S.C. § 101 (emphasis added). The limitation placed on the scope of copyright protection afforded to architectural works by the last clause in the definition-that protection does not extend to “individual standard features”-evolves from the constitutional requirement that copyright protection may only extend to original works or the subparts of works that are original, see Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 347 (1991).[10]

         The term “standard features” is not defined by statute; however, courts have understood the term to encompass “purely functional requirements” common to home designs as a result of considerations such as the utilitarian purpose a specific feature serves, market demands, building codes, zoning requirements, functional demands, and available technology. Bldg. Graphics, Inc. v. Lennar Corp., 866 F.Supp.2d 530, 537-38 (W.D. N.C. 2011) (Voorhees, J.); Dream Custom Homes, Inc. v. Modern Day Const., Inc., 773 F.Supp.2d 1288, 1300 (M.D. Fla. 2011); Harvester, Inc. v. Rule Joy Trammell Rubio, LLC, 716 F.Supp.2d 428, 440-41 (E.D. Va. 2010). Examples of “individual standard features” that do not receive copyright protection include “common windows, doors, and other staple building components.” Charles W. Ross Builder, Inc., 496 F. App'x at 317. Ideas that are sufficiently common to architectural works so as to preclude copyright protection include the use of an open floor plan, a split master/other bedroom(s) floor plan that places the master suite on the opposite side of the house from the other bedroom(s), inclusion of a flex space room, placing the laundry room in close proximity to the master suite, and creating a direct passageway from the garage to the kitchen. Savant Homes Inc. v. Collins, 2015 WL 899302, at *6 (D. Colo. Feb. 27, 2015); see also Kootenia Homes, Inc. v. Reliable Homes, Inc., 2002 WL 15594, at *3 (D. Minn. Jan. 3, 2002) (noting that “‘generalized notions of where to place functional elements, how to route the flow of traffic, and what methods of construction and principles of engineering to rely on'” are ideas not entitled to protection (quoting Attia v. Soc'y of New York Hosp., 201 F.3d 50, 55 (2d Cir. 1999))). Furthermore, given the limited number of ways that an architect can design a home of a specific size and style in light of consumer preferences, consumer budgetary limitations, and functional requirements, the merger doctrine limits the protection granted to the expression of ideas “‘where there is only one or so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself.'” Dream Custom Homes, Inc., 773 F.Supp.2d at 1307 (quoting BUC Int'l Corp. v. Int'l Yacht Council, Ltd., 489 F.3d 1129, 1142 (11th Cir. 2007)); see also Kootenia Homes, Inc., 2002 WL 15594, at *4 (“Efficiency concerns and the need for functional living in the home inevitably constrain the number of variations in the configuration of the rooms and spaces.”).

         While copyright protection does not extend to “individual standard features” or ideas, “the Copyright Act protects the specific expression of ideas in [an architectural] plan.” Kootenia Homes, Inc. 2002 WL 15594, at *3 (D. Minn. Jan. 3, 2002) (citing 17 U.S.C. § 102(b)); see also Bldg. Graphics, Inc., 866 F.Supp.2d at 537-38 (noting that “standard features” are not protected and that architectural plans always have a utilitarian aspect but recognizing that architectural plans still receive some protection under copyright laws). Accordingly, the “shape, arrangement and location of buildings, the design of open space, the location of parking and sidewalks, and the combination of individual design elements” have been recognized as elements of an architectural plan entitled to protection under copyright law. Dream Custom Homes, Inc., 773 F.Supp.2d at 1302 (emphasis added). Similarly, the “look and feel” of a home may be entitled to copyright protection. Cornerstone Home Builders, Inc. v. McAllister, 303 F.Supp.2d 1317, 1320 (M.D. Fla. 2004); see also Bldg. Graphics, Inc., 866 F.Supp.2d at 539 (considering “overall look and feel” of architectural work as part of analysis of whether protected elements of work were similar).

         Because “originality in architectural works frequently comes from the ‘arrangement and composition' of spaces and other design elements, which are not [themselves] protectable, ” many courts, when considering copyright infringement claims, have analogized the copyright protection afforded to an architectural plan to the copyright protection afforded to a “compilation.”[11] Charles W. Ross Builder, Inc., 496 F. App'x at 320; see also Bldg. Graphics, Inc., 866 F.Supp.2d at 543; Dream Custom Homes, Inc., 773 F.Supp.2d at 1300 (“The definition of an architectural work closely parallels that of a compilation.”). A work qualifying as a compilation, while generally copyrightable, typically receives “thin” protection under copyright laws because the production of a compilation typically necessitates only a limited degree of originality. Feist Publ'n, Inc., 499 U.S. at 344, 349. A compilation of individually unprotectable facts or ideas will, nonetheless, qualify as original and receive copyright protection if it is composed in a manner helpful to the user, “made independently by the compiler, and entail[s] a minimal degree of creativity.” Id. at 348-49, see also Id. at 358 (stating that whether a compilation can be copyrighted hinges on “whether the selection, coordination, and arrangement are sufficiently original to merit protection”). The requisite level of originality and creativity, however, is “extremely low” such that the “vast majority” of compilations will receive some protection under copyright laws even where the creative inspiration for the compilation is “crude, humble, or obvious.” Id. at 345, 359. In fact, “a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.” Id. at 345.

         In the instant case, the Court concludes that the analogy of an architectural work to a compilation is particularly apt. First, Sedgewick's own Vice President of Construction Services, Justin Todd Keisler, who also has experience as an architect and plans draftsman, readily admitted during his deposition testimony that there are only so many ways to design a three bedroom Craftsman style home and that most or all of the individual features in the Quail Valley plan are functional and can be found in other architectural plans. (See Doc. 64-6 at 10-13, 24-26, 47-51, 79). Second, in its briefs, Sedgewick does not identify any specific feature of the Quail Valley that is unique and entitled to copyright protection, but instead supports its infringement claim by relying on the original nature of the arrangement of features on the whole. (See Doc. 67 at 6 (“Sedgewick is not claiming copyright protection in the individual standard features, as Stillwater suggests. Sedgewick's Copyrighted Work is protected under copyright law in its overall form as well as the arrangement and composition of spaces and elements in the design.” (internal quotation marks omitted)); see also Doc 48 at 22-25, Doc. 60 at 4). Similarly, when questioned about what made the Quail Valley plan unique, Keisler cited the plan as a whole and how each functional or common item related to one another. (Doc. 64-6 at 52). Accordingly, where no individual feature of the Quail Valley plan appears unique in and of itself but there is no evidence that Sedgewick copied the Quail Valley plan and the Quail Valley plan, on the whole, involved at least a “minimal level of creativity, ” the Court will treat the Quail Valley plan as akin to a compilation for purposes of the copyright protection it receives and the Court's copyright infringement analysis.

         B. Elements of Copyright Infringement Claim

         “‘To establish a claim for copyright infringement, a plaintiff must prove that [(1)] it owned a valid copyright and [(2)] the defendant copied the original elements of that copyright.'” Humphreys & Partners Architects, L.P., 790 F.3d at 537 (quoting Lyons P'ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 801 (4th Cir. 2001)). Relative to the first element of a claim for copyright infringement, where a plaintiff obtains a certificate of registration from the Copyright Office within five years of the first publication of the work, the certificate of registration constitutes prima facie evidence of a valid copyright. 17 U.S.C. § 410(c). Relative to the second element of a claim for copyright infringement, a plaintiff may rely on direct evidence of copying to establish that a defendant copied original elements of plaintiff's copyrighted work. Humphreys & Partners Architects, L.P., 790 F.3d at 537. Because “persuasive direct evidence of copying is seldom available to a plaintiff in an infringement controversy . . . courts have generally accepted circumstantial evidence to create a presumption of copying.” Keeler Brass Co. v. Cont'l Brass Co., 862 F.2d 1063, 1065 (4th Cir. 1988). To create a presumption of copying via circumstantial evidence, a plaintiff must demonstrate that “the alleged copier had access to the material and that the original material and the alleged copy are substantially similar.” Id. If a plaintiff successively relies on circumstantial evidence to create a presumption of copying, a defendant can rebut the presumption with evidence of independent creation. Keeler Brass Co., 862 F.2d at 1065; Calhoun v. Lillenas Publ'g, 298 F.3d 1228, 1232 (11th Cir. 2002). Independent creation, however, is not an affirmative defense because it negates an element of a plaintiff's case, namely that a defendant copied plaintiff's protected work. Keeler Brass Co., 862 F.2d at 1066. Accordingly, evidence put forward by a defendant regarding independent creation must be viewed as one part of the record as a whole and the burden remains on the plaintiff to establish that defendant copied the protected aspects of plaintiff's work. See Id. at 1066-67.

         C. Standard of Review

         i. General Fed.R.Civ.P. 56 Standard

         Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In order to support or oppose a summary judgment motion, a party is required to cite to “materials in the record, including depositions, documents, . . . declarations, . . . admissions, interrogatory answers, or other materials;” or show “that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (applying former version of Rule 56); Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (same).

         It is well-established that the mere existence of “some” factual disputes will not defeat summary judgment; rather, the dispute presented must be “genuine” and concern “material” facts. Anderson, 477 U.S. at 247-248 (emphasis in original); see also Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). A dispute is “genuine” if “a reasonable jury could return a verdict for the nonmoving party.” Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. Abstract or conjectural doubts, minor discrepancies, and points irrelevant to the “material” facts are not genuine or material, and such do not cast sufficient doubt on the validity of testimony as to preclude the entry of summary judgment. Emmett, 532 F.3d at 297; Hux v. City of Newport News, Va., 451 F.3d 311, 315 (4th Cir. 2006). The non-movant cannot demonstrate a triable issue of disputed fact by building one inference upon another. Emmett, 532 F.3d at 297 (citing Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)). Although it is certainly true that “the facts and all reasonable inferences must be viewed in the light most favorable to the non-moving party, ” Smith v. Va. Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996) (en banc), it is equally true that a court is “well within its discretion in refusing to ferret out the facts that counsel has not bothered to excavate.” Cray Commc'ns. Inc. v. Novatel Comput. Sys., Inc., 33 F.3d 390, 396 (4th Cir. 1994).

         ii. Summary Judgment within Context of Copyright Infringement Claim

         Historically, courts have been reluctant to grant summary judgment motions in copyright infringement cases because the similarity element often involves a subjective determination on which reasonable minds may disagree. Bldg, Graphics, Inc., 866 F.Supp.2d at 536 (quoting Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1247 (11th Cir. 1999)); see generally Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992) (noting that summary judgment “will be denied when the question of substantial similarity is one on which reasonable minds could differ”). To that point, as a “general rule . . . the question of substantial similarity is one for the jury.” Thomas v. Artino, 723 F.Supp.2d 822, 831 (D. Md. 2010). This general rule against granting summary judgment on copyright infringement cases is, however, entitled to less deference where the allegedly infringed work “is merely a compilation of common design ideas as the nature of a compilation narrows the substantial similarity inquiry.” Bldg. Graphics, Inc., 866 F.Supp.2d at 536 (internal citations and quotation marks omitted).

         In select specific situations, summary judgment may be appropriate on claims of copyright infringement of an architectural work. First, summary judgment in favor of the defendant is appropriate if plaintiff fails to present any evidence demonstrating that defendant had access to plaintiff's copyrighted work. Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg., LLC, 977 F.Supp.2d 567, 580 (E.D. Va. 2013). Second, summary judgment in favor of the defendant is appropriate where “‘the similarity between two works concerns only non-copyrightable elements of the plaintiff's work.'” Bldg. Graphics, Inc., 866 F.Supp.2d at 536 (quoting Harzog, 193 F.3d at 1247); see also Charles W. Ross Builder, Inc., 977 F.Supp.2d at 580. Third, summary judgment in favor of the defendant is appropriate if “‘no reasonable jury, properly instructed, could find that the two works are substantially similar.'” Bldg. Graphics, Inc., 866 F.Supp.2d at 536 (quoting Harzog, 193 F.3d at 1247); see also Charles W. Ross Builder, Inc., 977 F.Supp.2d at 580. Fourth, and finally, summary judgment in favor of the defendant is appropriate where the defendant presents uncontradicted evidence of independent creation. Watkins v. Chesapeake Custom Homes, L.L.C., 330 F.Supp.2d 563, 575 (D. Md. 2004). In fact, uncontradicted evidence of independent creation will provide a basis for granting summary judgment even if the plaintiff's protected work and the alleged infringing work are “‘practically identical.'” Id. (quoting Keeler Brass Co., 862 F.2d at 1066).

         Conversely, summary judgment in favor of a plaintiff is appropriate “when the similarities between plaintiff's and defendant's works are so overwhelming as to preclude the possibility of independent creation.” Thomas, 723 F.Supp.2d at 831. Summary judgment in favor of a plaintiff is also appropriate where the evidence demonstrates blatant copying on the part of the infringer such that no reasonable juror could conclude that the defendant did not copy the protected elements of ...


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