United States District Court, E.D. North Carolina, Western Division
T. Numbers, II United States Magistrate Judge
Plaintiff John Steven Koenig alleges that the Defendants John
W. Dowdy, Jr.; Culhain McDaniel; Fortress Homes, LLC; and
All-American Homes, Inc. took advantage of his generosity and
violated his rights when they made derivative copies of a
home design he claims to have created. According to Koenig,
he allowed Dowdy, McDaniel, and Fortress Homes to use his
design, known as the JF1502 Plan, to build a house for
someone who lost his home to a tornado. But, Koenig alleges,
the Defendants went on to make derivative copies of the Plan
without his permission, had copyright management information
removed from the Plan, built several additional houses from
the derivative plans, and distributed their derivative plans
to other builders. Koenig claims that these plans violate
various portions of the Copyright Act and North
Carolina's statutory prohibition on unfair and deceptive
trade practices (“UDTP”). He also alleges that
the Defendants conspired to commit these bad acts.
would expect, the Defendants disagree. After conducting
discovery, they argue that Koenig lacks standing to pursue
his copyright-based claims since he is not the author of the
JF1502 Plan, and that there is insufficient evidence to go to
trial on any of the other claims.
reviewing the record and the parties' arguments, the
court has determined that although there is insufficient
evidence to proceed to trial on Koenig's civil conspiracy
and UDTP claims, the presence of genuine issues of material
fact necessitates a trial on the copyright-related claims. As
a result, Koenig's Motion to Dismiss will be denied
without prejudice and his Motion for Summary Judgment will be
granted in part and denied in part.
Prestige Homes and John Koenig
1980s, Koenig began working as a salaried employee for
Prestige Homes of Fayetteville, Inc., a licensed residential
construction company owned by his father. Koenig Aff.
¶¶ 2, 3, D.E. 79-3; Koenig Dep. at 9:5-9, D.E.
79-16. Over the years, Koenig was responsible for a variety
of tasks for the company, including “construction,
construction oversight, lot selection, and plan selection[,
]” but, Koenig claims, he was not responsible for
“building plan design[.]” Koenig Dep. at 61:1-7;
Koenig Aff. ¶¶ 5, 8; see also Defs.'
Statement of Undisputed Facts at #6, D.E. 77-1 (“Koenig
built homes designed for Prestige Homes.”).
eventually began learning how to design homes. Koenig Aff.
¶ 6. He would send his designs to Todd Tucker, a
certified building designer, who would turn the design into a
construction plan. Tucker Aff. ¶ 2, D.E. 79-4; Tucker
Dep. at 7:11-14; 8:14-16; 43:4-12. Over time, the two worked
together on 20-30 plans. Tucker Dep. at 12:7-9. Koenig
allowed Prestige Homes to build houses based on his designs.
Koenig Aff. ¶ 8; Koenig Dep. at 57:17-20. In 2008,
Koenig created a separate company, JAFSIM, LLC, with the
intention that it would build homes based on his designs.
Koenig Aff. ¶ 9; Koenig Dep. at 17:14-25.
Creation and Use of the JF1502 Plan
years later, while working for Prestige Homes, Koenig began
working on the plan at the heart of this case. Koenig Dep. at
57:21-24. Koenig used a computer-aided design (CAD) program
to create a floorplan by “situat[ing]” and
“position[ing]” the different features of a
building design. Koenig Aff. ¶¶ 11-13; Tucker Dep.
at 37:16-38:18; Defs.' Statement of Undisputed Facts
¶ 3-4 (stating that Koenig made “conceptual
drawings” of “a two-dimensional floor
plan”) (emphasis added). This “initial schematic
of the plan” included precise dimensions and the
placement of specific aspects of a home such as a linen
closet. Tucker Dep. at 37:5-19; 41:6-43:3; 72:16-75:16, D.E.
79-18. It also “depicted the rooms, their relation to
each other, and the placement of windows, doors, fixtures,
and appliances.” Tucker Aff. ¶ 4.
completing approximately 75% of his plan, Koenig sent a PDF
of the plan to Tucker. Tucker Aff. ¶ 2, 14; Tucker Dep.
at 38:24-39:22; see also Defs.' Memo. at 5, D.E.
77. Tucker's job was to “clean up his plan”
by making sure it met construction standards and providing
“exterior elevations, a foundation plan, cross
sections, electrical and lighting plan per John Koenig's
direction, and any [other] necessary details and
dimensions[.]” Tucker Dep. at 39:13-14; Tucker Aff. at
and Tucker met several times to discuss the Plan's
development. Tucker Aff. at ¶ 12. Koenig was particular
about the design and would have Tucker undo any major
changes, even if Tucker thought it led to a better layout.
Tucker Dep. at 76:21-77:5. Tucker made the requested
additions and changed certain dimensions by a few inches.
Tucker Aff. at ¶ 9; Tucked Dep. at 39:6-11; 41:12-21;
spent between 15 and 20 hours working on the plan. Tucker
Dep. at 81:13-17. He named the plan “JF1502, ” JF
for JAFSIM and 1502 for the plan's total square footage.
Tucker Dep. at 43:15-24. Per Koenig's request, Tucker
included language on the Plan stating that Koenig was its
sole owner. Tucker Dep. at 16:21-25. Tucker included both
“JAFSIM” and “Prestige Homes” in the
Plan's title block. Tucker Dep. at 23:14-24:10.
to Koenig and Tucker, they agreed orally that Koenig would
own the copyright to the plan after he paid Tucker for his
services. Koenig Aff. ¶14; Tucker Aff. ¶13; see
also Tucker Dep. at 12:23-13:10. Tucker knows he
received payment for the plan from a business, but he cannot
remember if it he was paid by JAFSIM or Prestige Homes.
Tucker Dep. at 10:1-7. As was his practice, Tucker deleted
Koenig's original sketches. Tucker Dep. at 8:6-21.
Shortly thereafter, Koenig registered the JF1502 Plan with
the Copyright Office. Certificate of Registration, D.E. 79-
Koenig registered the Plan, Prestige Homes built nine homes
from the design. Defs.' Statement of Undisputed Facts at
#31-33; Dowdy Aff. ¶ 44, D.E. 76-2 (quoting Pl.'s
Resp. Def.'s First Interrog.). Koenig did not have a
written agreement with Prestige Homes about the use of the
plan. Defs.' Statement of Undisputed Facts at #5 &
#35, D.E. 77-1. But he says that he allowed Prestige Homes to
build houses using his designs because it was his
father's company. Koenig Aff. ¶¶ 8, 15. He
asserts that Prestige Homes never claimed to own the JF1502
Plan. Koenig Aff. ¶ 16.
Koenig nor JAFSIM built any homes based off of the JF1502
Plan. Defs.' Statement of Undisputed Facts at #31-33;
Dowdy Aff. ¶ 44, D.E. 76-2 (quoting Pl.'s Resp.
Def.'s First Interrog.).
Defendants and Their Use of the Plan
2007, Dowdy and McDaniel formed Fortress Homes, LLC, a
construction company. Dowdy Aff. ¶¶ 30-33; see
also McDaniel Aff. ¶¶ 2-6, D.E. 76-5. They
served as vice president and president, respectively.
Id. Dowdy and McDaniel would jointly decide which
plans they would use to build homes. Dowdy Aff. ¶¶
years later, a Fortress Homes customer who had lost their
home to a tornado asked Dowdy to build a house using the
JF1502 Plan. McDaniel Dep. at 75:8-25; Dowdy Aff.
¶¶ 37-38. Dowdy negotiated with Koenig to use the
Plan, and McDaniel signed a letter agreeing to build only one
home from it. Dowdy Dep. 54:8-55:8; 78:4-5; 79:8-12; McDaniel
Dep. 39:1-16, D.E. 76-13; McDaniel Letter, D.E. 79-8.
McDaniel claims that Fortress Homes built one home from the
Plan and then never used it again. McDaniel Dep. at 75:8-14;
McDaniel Aff. ¶ 13.
that year, Dowdy contacted Charles Bass at Bass Built Homes,
Inc. to create a plan for Fortress Homes. Dowdy Dep. at
75:23-76:22; Bass Aff. ¶ 5. Dowdy wanted Bass to make a
plan combining his favorite aspects of the JF1502 Plan with
aspects of at least one other plan. Dowdy Dep. at 76:8-12;
see also Id. at 49:2-52:25; Dowdy Aff. ¶ 57.
claims that when Dowdy brought him the JF1502 Plan, he saw
Koenig's name and copyright information on the Plan. Bass
Dep. at 119:15-120:2, D.E. 79-13; Bass Aff. ¶ 6, D.E.
76-17. He then allegedly asked Dowdy if he had
“permission to use this plan[, ]” to which he
claims Dowdy said “yes.” Bass Dep. at
119:15-120:2; Bass Aff. ¶ 7. Bass said he took Dowdy at
his word because builders often shared plans with each other.
Bass Dep. at 121:10-24; Bass Aff. ¶ 8; see also
Dowdy Dep. at 79:19-21. Believing that Dowdy had permission
to use it, Bass did not include Koenig's copyright
information on any of the 14 plans he designed for Dowdy from
Koenig's JF1502 Plan. Bass Aff. ¶¶ 17-18. Dowdy
denies these allegations, stating that Bass “never
asked [him] about a copyright.” Dowdy Dep. at
77:9-78:11; Dowdy Aff. ¶ 60.
way, Bass ultimately created four plans that the Defendants
purchased. Dowdy Aff. ¶ 61. Bass claims that all of
Dowdy's plans were “either a replica or a
derivative” of the JF1502 Plan. Bass Aff. ¶ 19.
The parties and their experts disagree on the differences
between the JF1502 Plan and these four other plans.
Compare Monroe Expert Report, D.E. 76-9; Smith
Export Report, D.E. 76-10; Ferris Expert Report at 1, D.E.
76-11, with Bass Aff. ¶ 9-10; Bass Dep. at
138:13- 21; Tucker Expert Report, D.E. 79-19; Richey Export
Report, D.E. 79-20. Defendants built at least three homes
from these new plans. Dowdy Dep. at 104:16-105:20.
then gave some of these plans to other builders. Dowdy Dep.
at 111:21-113:24; King Aff. ¶ 16-23, D.E. 76-4.
Dowdy's company, All-American Homes, marketed and sold
several homes that were allegedly built from these derivative
plans. McDaniel Dep. Ex.'s 27, 29- 30, D.E. 79-9-79-11
learned about the derivative plans and filed suit in 2015
against Dowdy; All-American Homes; McDaniel; Fortress Homes;
Bass Built Homes; Downwind Investments, LLC; and King
Construction and Development Co., Inc. D.E. 1. He brought
claims of copyright infringement, improper removal of
copyright management information, a violation of the Lanham
Act, civil conspiracy, and UDTP. Id.
months later, Koenig dismissed his claims against Bass Built
Homes. D.E. 54. The dismissal followed Bass's execution
of an affidavit detailing his involvement in the creation of
the four plans. D.E. 76-17. An attorney (it is unclear
whether the attorney represented Bass or Koenig) drafted the
affidavit as part of Bass's settlement agreement with
Koenig. Bass Dep. at 107:11-25. Although Bass made some
changes to the affidavit, he still felt like the end product
was “a little bit stronger than [what he] really meant
. . . ...