Copyright Infringement Requires Copying

Sounds simple enough, but finding evidence to prove actual copying is oftentimes elusive. A recent case published from 4th Circuit, BUILDING GRAPHICS v. LENNAR CORP, determined proof of access for copying protected materials as being a linchpin for copyright infringement. Plaintiff Building Graphics, Inc., a Charlotte based architecture firm, appealed from a Summary Judgment “SJ” denying relief for copyright infringement. In the 1990s, the firm created and obtained copyrights to the three home plans that were registered with the United States Copyright Office as both architectural works and technical drawings. Defendant Lennar Corp., a homebuilder in 18 states, was alleged to have infringed Plaintiff’s drawings with its stock home offerings. Evidence presented at the SJ hearing indicated that Plaintiff’s drawings were available on the internet and that Defendant’s offerings were similar in some aspects to Plaintiff’s designs. However, Defendant’s executive testified that before entering a market, their due diligence involved only surveys of competitive builder’s home offerings and that they did not consider architectural designs or drawings as part of their onboarding. Also, the timing of the Defendant’s offerings in the market did not coincide with the Plaintiff’s works so that it was not likely that any actual copying took place.

The Appeals Court reviewed the evidence of access for copying and upheld the District Court’s decision. The Court cited an opinion holding that copying can be proven through direct or circumstantial evidence. When direct evidence is lacking, a plaintiff “may create a presumption of copying by indirect evidence, establishing that the defendant had access to the copyrighted work and that the defendant’s work is ‘substantially similar’ to the protected material.” To rely successfully on circumstantial evidence of copying, Building Graphics must first show that it is reasonably possible that Lennar had access to its plans. “Access may be shown by demonstrating that the infringer had an opportunity to view or to copy the protected material. But this showing must establish more than a ‘mere possibility that such an opportunity could have arisen’; it must be ‘reasonably possible that the paths of the infringer and the infringed work crossed.'”

Unlike patent and trademark, copyright protects original expression, not a concept, idea or brand. Often referred to as the “idea-expression dichotomy;” the more original expression, the better chance for protection. When the idea for a building plan becomes fleshed out into an architectural drawing, then copyright protection is afforded. Stock plans will require a greater showing of access for the presumption of copying. Copyright infringement is therefore conduct oriented. Had a former employee of Building Graphics provided the drawings to Lennar, the requisite copying would most likely have been found. Add substantial similarity and the result would be copyright infringement.

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