Architects Collective v. Pucciano & English, Inc. (247 F. Supp. 3d 1322, 2017)

United States District Court for the Northern District of Georgia 2017-03-29

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Full opinion text

ORDER

Amy Totenberg, United States District Judge

Architects Collective, a sole proprietorship of architect Larry Kester, brought this 'action for alleged copyright infringement against a competing architecture firm, Pucciano & English, Inc. (“Pucciano & English”). Kester, contends that Pucci-ano & English copied Kester’s federally-registered architectural plans for Unit A1 (one bedroom), Unit B2 .(two bedroom), Unit C2 (three bedroom) apartment units. Plaintiff asserts that .Architects Collective’s and Pucianno & English’s shared client, Crowne Partners, was the conduit by which Defendant obtained Architects Collective’s plans for the three individual apartment unit plans.

Defendant’s Motion to Exclude Expert Testimony of Larry Kester [Doc. 81] and Defendant’s Motion for Summary Judgment [Doc. 82] are pending before the Court. In the Motion to Exclude, Defendant seeks to prevent Larry Kester from offering any testimony regarding the similarities between the Architects Collective plans and the Pucianno & English plans. In the Motion for Summary Judgment, Defendant seeks judgment as a matter of law in its favor that: (a) Plaintiff does not own valid copyrights-in his plans, or (b) that the Pucianno & English plans do not infringe the Architects Collective plans because the plans are are not substantially similar.

The Court’s rulings are set'forth below.

I. Background

Architects Collective is a sole proprietorship owned by Larry Kester. (Def.’s Stmt. Mat. Facts (“Def.’s SMF”) ¶ 1.) Larry Kester is a licensed architect in 30 states. (Expert Deposition of Larry Kester (“Kester Expert Dep.”) at 39; Kester CV, Doc. 87-4.) He has served as the owner and founder of Architects Collective for 35 years. (Kester CV, Doc. 87-4.) Roughly ninety (90%) percent of Mr. Kester’s work at Architects Collective is designing multifamily housing (i.e. apartments). (See Kes-ter Expert Dep. at 36.) Throughout his career, he has designed approximately 365 multifamily projects. (Id. at 45.)

From 1987 to 2011, Mr. Kester designed approximately 25 garden style apartment communities for Crowne Partners. (Id. ¶¶2-3.) Kester designed Crowne at Hat-tiesburg, Crowne at Swift Creek, and Crowne Lake for Crowne Partners. (Id. ¶ 5.) Each of these projects contained various individual unit plans, including a one bedroom unit designated Unit Al; a two bedroom unit designated Unit B2; and a three bedroom unit designated Unit C2. (Id. ¶ 6.)

Kester, doing business as Architects Collective, applied for and received copyright registrations for each of these projects. (Id. ¶8; Doc. 82-2 at 38-40, 42.) Kester certified on the copyright application for each project that he was the sole author of each work. (Def.’s SMF ¶9.) Kester did not indicate on the copyright applications whether other individuals provided design services for each project or that the projects were derivative works. (Id. ¶¶ 10-11.) The deposit that Kester submitted to the Copyright Office with the applications was not a complete set of plans. (Id. ¶ 12.)

In 2011, due to growing competition in the market, Crowne Partners decided to move away from developing garden style apartments and shifted to a mid-risé product, which would allow for more units on less land. (Deposition of Alan Levow (“Levow Dep.”) at 60.) Crowne Partners was not satisfied with Larry Kester’s design plan for the mid-rise concept and felt he did not have the necessary level of experience with that particular format as opposed to the garden style. (Id. at 61-63.) As a result, Crowne Partners retained David English of Defendant Pucciano & English to design the plans for its new mid-rise concept communities at Crowne at Maybank, Crowne at Cahaba River, Crowne on Timberline, and Crowne at Cary Place. (Id. at 61-62; Def.’s SMF ¶ 16.)

Crowne Partners had hard copies of the Architects Collective plans in its possession from previous projects. (PL’s Add’l Mat. Facts (“PL’s SMF”) ¶ 8.) After hiring Pucciano & English in 2011 to replace Architects Collective, Alan Levow asked Butch Rigsby to send architectural plans of Kester’s most current jobs for Crowne Partners to Pucciano & English. (Deposition of Harold D. “Butch” Rigsby (“Rigsby Dep.”) at 15-16; see also Def.’s SMF ¶23.) Rigsby “respectfully declined” to do so “because of the copyright infringements.” (Id, at 16.) Around that same time in 2011, Levow asked Rigsby to approach Kester about Crown Properties’ purchasing a license to use Kester’s. architectural plans because Crowne Partners liked certain units Kester had designed. (Rigsby Dep. at 23-24; Levow Dep. at 24-25.) Kester declined the offer. (Levow Dep. at 24-25.) According to Alan Levow, no one from Crowne. Partners ever gave copies of Kes-ter’s architectural plans to Pucciano & English. (Levow Dep. at. 42-43.) Alan Levow enlisted the. help of a second architect, Laura Howard Depree, to help Pucciano & English finalize some of the individual unit plans for the new projects. (Def.’s SMF ¶ 18.)' Levow testified that Depree asked to see Crowne Partner’s prior plans designed by Kester because she had no experience designing plans for apartments, but that he did not share them with her. (Levow Dep. at 43-44.) And according to David English, the first time he saw Kester’s architectural plans were when this lawsuit was filed. (Deposition of David English (“English Dep.”) at 29.)

The projects designed by Mr. English for Crowne Partners contained a variety of individual unit plans. Specifically, the plans contained a one bedroom unit in Crowne at Maybank designated Unit A4; a two bedroom unit that appears in all four projects designated as Unit B2; and a three bedroom unit that appears in all four projects designated as Unit Cl. (Def.’s SMF ¶ 26.)

In approximately November 2014, Larry Kester allegedly discovered that Crowne Partners was using individual unit plans (Pucciano & English Unit A, Unit B, and Unit C) that he considered were copied from plans that he designed (Architects Collective Unit A, Unit B, and Unit C). (Def.’s SMF ¶200.) Kester filed suit for copyright infringement under the Copyright Act on March 24, 2015, alleging that Pucciano & English’s plans for the Crowne at Cahaba River, Crowne at Timberline, Crowne at Maybank Village, and Crowne at Cary Place projects are virtually identical to Architects Collective’s plans for Crowne at Hattiesburg, Crowne at Swift Creek, and Crowne Lake. (Compl. ¶¶ 9,10, 13; Compl. Exs. A & B.) Architects Collective alleges that the plans are substantially similar “in the following respects, among others: the same number of units per floor, the same arrangement of dwelling units .within each building, the same arrangement of spaces within each dwelling unit, placement of unit amenities, and configuration of units.” (Id. ¶¶ 10,17.) Plaintiff attached an “Exemplar of the similarity in plans” as Exhibit B to the Complaint, consisting of the following:

(1) A two bedroom unit plan designed by Defendant, (Doc. 1-2 at 2);

(2) A two bedroom unit plan designed by Plaintiff, designated “Unit Plan— B2,” (id. at 3);

(3) A three bedroom unit plan designed by Defendant, (id, at 4); and

(4) A three bedroom unit plan designed by Plaintiff, designated “Unit Plan— C2.2,” (id. at 5).

Subsequently in discovery, Plaintiff identified additional unit plans—a one bedroom unit plan designated as Unit Al and a three bedroom unit plan designated as Unit C2, alleged to have been infringed by Defendant’s plans. Although the Complaint was never formally amended to specifically reflect allegations regarding these additional plans, Defendant has not challenged Plaintiffs reliance on these plans in support of its infringement claims.

In general, Larry Kester contends that the architectural designs of Architects Collective and Pucciano & English have the following similarities:

One Bedroom Units (Al and A4)

1. Overall form, look and feel of the dwelling units;

2. Overall layout of primary spaces and certain secondary spaces of the dwelling units;

3. Kitchen arrangements and arrangement of kitchen appliances;

4. Nine (9) foot ceiling heights;

5. Vaulted ceilings in top floor units;

6. Crown molding in living and dining rooms;

7. Location of wall mounted air handler and low boy water heater spaces; and

8. Use of ceiling fans.

Two Bedroom Units (B2)

1. Overall form, look and feel of the dwelling units;

2. Overall layout of primary spaces and certain secondary spaces of the dwelling units;

3. Kitchen arrangements, arrangement of kitchen appliances, and use and location of kitchen windows;

4. Location of all windows in dwelling units;

5. Use of long two lavatory vanities in master bath;

6. Use of garden tubs in master bath;

7. Location of laundry room;

8. Location of patio/balcony access door;

9. Use of full glass patio/balcony access door;

10. Location of plumbing walls;

11. Location of all doors in dwelling units;

12. Use of U-shaped kitchen;

13. Nine (9) foot ceiling heights;

14. Vaulted ceilings in top floor units;

15. Specifically designed crown molding in living and dining rooms;

16. Location of fireplaces;

17. Location of wall mounted air handler and low boy water heater spaces;

18. Use of ceiling fans.

(Ex. L to Pl.’s Resp., Doc. 90-12 at 6-9.) For the three bedroom units, Larry Kes-ter contends that the architectural designs of Architects Collective’s C2 Unit and Puc-ciano & English’s Cl Unit have the same “overall form, look and feel of the dwelling units” and the same “overall layout of primary spaces and certain secondary spaces of the dwelling units.” (Id.; Ex. N to Pl.’s Resp., Doc. 90-14 ¶¶ 57-58.) Kester identified other specific similarities between the Architects Collective A1/B2/C2 unit plans and the Pucciano & English A4/B2/C1 unit plans, discussed in detail below in the Court’s infringement analysis.

Side-by-side comparisons of the individual unit floor plans, as prepared and offered by Larry Kester, are shown below:

One Bedroom Unit

UNIT PLAN A1

ARCHITECTS COLLECTIVE REFER TO AC SWIFT CREEK PLANSINCLUDED

UNIT PLAN A4 PUCC1ANO& ENGLISH

REFER TO F&E MAYBANK' PLANS INCLUDED SHEETS A4, A27, A2S and A29

Two Bedroom Unit

UNIT PLAN B2 ARCHI1ECTS SOU ECTIVE

REFER TO AC SWIFT CREEK PLANS INCLUDED

UNIT PLAN 02 PUCCIANO S ENGLISH

REFER TO P&E CARY PARK PLANS INCLUDED SHEETS C1, A1 through AS

Three Bedroom Unit

UNIT PLAN C2

REFER TO PSE CART PARK PLANS INCLUDED (SHEETS CI.A1 through AS

(Ex. 3 to Pl.’s Resp. to Defi’s SMF, Doc. 89-3.)

II. Defendant’s Motion to Exclude Expert Testimony of Larry Kester [Doc. 81]

Plaintiff Architects Collective offered its principal, Larry Kester, as an architectural expert pursuant to Federal Rule of Civil Procedure 26(a)(2)(C) to rebut Defendant’s expert testimony discussing the similarities and differences between Plaintiff and Defendant’s architectural plans. Defendant seeks to exclude Kester’s expert testimony. It argues that Kester is unqualified to testify about copyright law and its applicability, Kester’s legal analysis of copyright law and its applicability lacks “any” methodology, Kester’s opinions will not assist the trier of fact, and Plaintiff was erroneously identified as a Rule 26(a)(2)(C) expert, and therefore failed to submit an expert report as required under Rule 26(a)(2)(B). (Def.’s Mot. Exclude at 11.) In particular, Defendant argues that Kester offers the following overarching opinions which should be excluded: (1) opinions on copyright law and its applicability to architectural works; (2) opinions on the alleged substantial and striking similarities between Architects Collective’s unit plans and Pucciano & English’s plans; and (3) opinions on Pucciano & English’s gross revenues and Architects Collective’s lost profits. (Id. at 2-3.)

In response, Plaintiff argues that Kes-ter’s observations, explanation and analysis of the plans at issue are based on his professional experience as an architect and not on any purported expertise on copyright law. As a qualified and experienced' architect, Plaintiff contends Kester ■ employed a reliable methodology by conducting a side-by-side visual comparison of the plans and architectural drawings when reaching his opinions about the similarities between the plans. As the architect responsible for creating the plans that are the subject of Plaintiffs infringement claims, Plaintiff asserts that Kester is “a percipient expert who was not specially retained to provide expert testimony” and is therefore not subject to the expert report requirements of Rule 26(b). (PL’s Resp: Mot. Exclude at 3-9.) Finally, Plaintiff contends that Kester was identified as an expert on damages only out of an abundance of caution, concedes that Kester’s method of totaling invoices and receipts of Defendant’s profits does not require an expert, and that Kester may still testify about damages in his capacity as the Plaintiff and as a lay witness pursuant to Fed. R. Evid. 701.

A. Legal Standard

Federal Rule of Evidence 702 governs expert testimony and provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. District courts have broad discretion to determine the admissibility of expert evidence under Federal Rule of Evidence 702. Montgomery v. Aetna Casualty & Surety Co., 898 F.2d 1537, 1541 (11th Cir. 1990). In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court imposed on the trial courts a special gatekeeper role of ensuring that proffered expert testimony is both relevant and reliable before being admitted as evidence. 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1309 (11th Cir. 1999). The inquiry into reliability must focus on “principles and methodology” and not the expert witness’s conclusions. Daubert, 509 U.S. at 595, 113 S.Ct. 2786.

Under Rule 702, the trial court must consider whether the expert witness is qualified to opine as he does, whether his testimony is reliable, and whether his testimony is helpful to the trier of fact. More specifically, “[t]rial courts must consider whether:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (citing City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998).

The Court’s objective under Daubert “is to make certain that an expert, whether basing testimony upon pro-, fessional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); accord Frazier, 387 F.3d at 1260. The district court has “substantial discretion in deciding how to test an expert’s reliability and whether the expert’s relevant testimony is reliable.” United States v. Majors, 196 F.3d 1206, 1215 (11th Cir. 1999). The Eleventh Circuit has cautioned that “[m]any factors will bear on the inquiry, and [there is no] definitive checklist or test.” Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001) (quoting Daubert, 509 U.S. at 593, 113 S.Ct. 2786). While Daubert and its progeny provide flexible guidelines for the admissibility of evidence under Rule 702, “expert testimony that does not meet all or most of the Daubert factors may sometimes be admissible” based on the particular circumstances of a specific case. United States v. Brown, 415 F.3d 1257, 1266-68 (11th Cir. 2005); see also U.S. v. Scott, 403 Fed.Appx. 392, 397 (11th Cir. 2010) (finding that the Daubert factors are only general guidelines and the trial judge has “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable”) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Quiet Tech. D C-8, Inc. v. Hurel-Dubois UK Ltd, 326 F.3d 1333, 1341 (11th Cir. 2003) (finding that the court should consider the Daubert factors “to the extent possible” but that “these factors do not exhaust the universe of considerations that may bear on the reliability of a given expert opinion, and a federal court should consider any additional factors that may advance its Rule 702 analysis”).

For example, experts may be qualified in various ways. “While scientific training or education may provide possible means to qualify, experience in a field may offer another path to expert status.” Frazier, 387 F.3d at 1260-61. Indeed, Federal Rule of Evidence 702 provides that expert status may be based on “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702 advisory committee’s note (2000 amends.) (“Nothing in this amendment is intended to suggest that experience alone ... may not provide a sufficient foundation for expert testimony.... In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.”). Thus, “there is no mechanical checklist for measuring whether an expert is qualified to offer opinion evidence in a particular field.” Santos v. Posadas de Puerto Rico Assocs. Inc., 452 F.3d 59, 63 (1st Cir. 2006).

B. Kester’s Designation as a Rule 26(a)(2)(C) Expert

As an initial matter (and dealing with Defendant’s last argument first) the Court finds that Plaintiff did not improperly designate Larry Kester as a Rule 26(a)(2)(C) expert for whom no expert report is required under Rule 26(a)(2)(B). “[I]f the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony,” Rule 26(a)(2)(B) requires the expert disclosure be accompanied by a detailed written report. In contrast, when disclosing the identities of other expert witnesses—those not specially retained or employed to give testimony—a party need only disclose: “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).

1 Larry Kester was not “retained or specially employed to provide expert testimony in the case,” nor does his position as the principal of Architects Collective “regularly involve giving expert testimony.” Rather, Kester is more akin to a “percipient witness” under Rule 26(a)(2)(C) or a lay opinion witness under Fed. R. Evid. 701 because he has firsthand knowledge of the facts of the case and his testimony regarding the similarity of the plans is based on his specialized and particularized knowledge garnered from his years of experience as an architect designing his own architectural plans. See Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., Ltd., 320 F.3d 1213 (11th Cir. 2003) (lay witness testimony of employees and/or officers of company “based upon their particularized knowledge garnered from years of experience within the field”); Kondragunta v. Ace Doran Hauling & Rigging Co., No. 1:11-CV-01094-JEC, 2013 WL 1189493, at *10-12 (N.D. Ga. Mar. 21, 2013) (differentiating between Rule 26(a)(2)(B) and Rule 26(a)(2)(C)" disclosure and report requirements as hinging on whether scope of treating physician’s testimony was based on observations during course of treatment or based on facts gathered outside the course of treatment); Downey v. Bob’s Disc. Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011) (analyzing distinction between an expert who falls under Rule 26(a)(2)(B) from an expert who falls under Rule 26(a)(2)(C) in the context of the example of a “treating physician” and stating, “to give the phrase ‘retained or specially employed’ any real meaning, a court must acknowledge the difference between a percipient witness who happens to be an expert and an expert who without prior knowledge of the facts giving rise to litigation is recruited to provide expert opinion testimony”).

Larry Kester is a proper Rule 26(a)(2)(C) witness because his 'opinion arises “from his ground-level involvement in the events giving rise to the litigation,” and not because of his “enlistment” as an expert. See Downey, 633 F.3d at 6. His testimony is based on his direct personal knowledge and familiarity with his own copyrighted plans and Defendant’s plans. And his involvement in the events giving rise to the litigation—his design of the plans at issue and the discovery- of the alleged infringement by Defendant-r-renders Kester a percipient witness- As a result, he is not required to submit a Rule 26 expert report and his disclosures comply with Rule 26(a)(2)(C)(ii)’s requirement that he provide a summary of the facts and the opinions on which he intended to testify-

C. Kester’s Opinions Regarding the Similarity and Dissimilarity Between Plaintiff and Defendant’s Architectural Plans

Plaintiff and Défendant disagree on the role and purpose of Kester’s testimony. While Defendant does not dispute that Kester is a qualified and experienced architect, Defendant argues that Kester “purports to offer opinions concerning a key point of copyright law ... whether the allegedly infringing works are ‘substantially similar’ or ‘strikingly similar’ to’Architects Collective’s plans.” (Def.’s Mot. Exclude at 5.) Examples "of Kester’s opinions that Defendant takes issue with include:

d. The kitchens of the Pucciano & English dwelling units B2/C1 include a window, which is strikingly, substantially similar to the kitchen window that is included in the Architects Collective dwelling units B2/C2.

e. The arrangement of the appliances of the Pucciano & English dwelling units B2/C1/A4 are substantially similar to the arrangement of the appliances in the Architects Collective dwelling units B2/ C2/A1.

(Pl.’s Suppl. Disclosure of Expert Testimony at 7.)

Defendant argues that Kester “is not a practicing attorney and has no formal legal training whatsoever,” and is'therefore unqualified to offer such opinions. (Def.’s Mot. Exclude at 5.) Defendant also seeks to exclude Kester’s expert testimony because Kester made statements about copyright case law and copyright standards in his expert deposition. (Def.’s Mot. Exclude at 6.)

In response, Plaintiff asserts that it is not offering Kester as an expert on copyright law and that the purpose of Kester’s testimony is not to provide “a legal opinion or conclusion as to the similarities or differences between the two plans,” but that he was “merely explaining in what ways he had become aware of how architectural plans can be copyrighted” in his expert deposition. (Pl.’s Resp. at 9.) Instead, the purpose of Kester’s testimony is to determine and analyze the individual elements and overall design similarities between the two plans and compare the various details and similarities between the architectural works. (Id. at 12-13.)

While an expert may testify as to his opinion on an ultimate issue of fact, he may not provide legal opinions on the ultimate issues in this case or simply tell the jury what result to reach. Montgomery, 898 F.2d at 1541 (citing Fed. R. Evid. 704, committee notes (merely telling jury what result to reach is not helpful to the jury and therefore is not admissible testimony)); Jeff Benton Homes v. Alabama Heritage Homes, Inc., 929 F.Supp.2d 1231 (N.D. Ala. 2013) (finding that expert testimony by architect as to whether two works have meaningful architectural similarities was appropriate under Daubert). An expert may not testify regarding .the legal implications of conduct because the court must be the only source of law. Montgomery, 898 F.2d at 1541; see also Plantation Pipeline Co. v. Cont’l Cas. Co., 1:0-CV-2811-WBH, 2008 WL 4737163 (N.D. Ga. July 31, 2008) (citing United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991) which held that “although an expert may opine on an issue of fact within the jury’s province, he may not give testimony stating ultimate legal conclusions based on those facts.”)); Specht v. Jensen, 853 F.2d 805, 809-10 (10th Cir. 1988) (“We do not exclude all testimony regarding legal issues. We recognize that a witness may refer to the law in expressing an opinion without that reference rendering the testimony inadmissible. Indeed, a witness may properly be called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms.”).

As Plaintiff appears to concede that Kester is not qualified to offer legal analysis pertaining to copyright law and .its applicability to the plans at issue, the Court GRANTS Defendant’s Motion to Exclude Expert Testimony on that basis. Jeff Benton Homes, 929 F.Supp.2d 1231 (N.D. Ala. 2013); see also Home Design Services, Inc. v. Trumble, No. 09-CV-00964, 2011 WL 1638910 (D. Colo. April 29, 2011) (finding that while expert testimony by architect is admissible to show probative similarity between two works, he could not “offer his ultimate conclusion that taken as a whole, the two works are substantially similar”). Thus, Kester will not be permitted to testify as to the ultimate issue in the case—-whether the allegedly infringing plans are “substantially similar” to Architects Collective’s plans.

The Court disagrees with Defendant, however, that Kester cannot offer his comparison of the two sets of plans and identify both common factors and differences in order to assist the trier of fact in deciphering the similarity or dissimilarity of the plans at issue for purposes of determining whether infringement has occurred. Jeff Benton Homes, 929 F.Supp.2d 1231, 1243-44 (N.D. Ala. 2013) (denying motion to disqualify architect from testifying as an expert witness for the purpose of evaluating the similarities and differences between plaintiff and defendants’ floor plans); Home Design Servs., 2011 WL 1638910, át *5 (holding that architect’s expert testimony discussing the architectural similarities and dissimilarities between the two plans was admissible because .it showed the probative similarity between two work?); The Harvester, Inc., v. Rule Joy Trammell + Rubio, LLC, No. 3:09-CV-358, 2010 WL 2653373, at *3 (E.D.Va. July 2, 2010) (holding that “a licensed architect with extensive experience reviewing architectural drawings is qualified to give expert testimony as to whether two different sets of architectural drawings contain meaningful architectural similarities” and reasoning that expert’s thirty years of architectural experience provided him with “the basis for knowledge, skill, or experience exceeding that of the average” lay observer). Kester’s analysis of the overall design similarities and his point by point comparison of individual design elements is reliable because it is based upon his extensive professional experience, as applied to the particular works at issue in this case, and will clearly assist the trier of fact in identifying potential commonalities and differences between the plans. E.g., Jeff Benton Homes, 929 F.Supp.2d at 1243-44 (finding expert’s testimony regarding similarities and differences sufficiently reliable based on years of professional architectural experience and would assist in making determination of whether the works are substantially similar for purposes of copyright infringement); Trumble, 2011 WL 1638910, at *5 (finding expert report that included a list of the similarities and differences between two house plans in question would assist the trier of fact; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (stating that an expert may draw a conclusion from a set of observations based on extensive and specialized experience).

As the Court has determined that Kes-ter is not permitted to offer expert testimony that encompasses the “ultimate issue of substantial similarity,” any references in his disclosures regarding the “substantial similarity” of the particular elements and the overall designs will be stricken, and the Court will not consider any such testimony when ruling on the motion for summary judgment. Instead, the Court will form its own conclusions about substantial similarity based on the totality of the evidence, including Defendant’s expert report, Kester’s expert disclosures, and a review of the plans themselves in the context of controlling Circuit precedent.

Accordingly, for these reasons, Defendant’s Motion to Exclude the Expert Testimony of Larry Kester [Doc. 81] is GRANTED IN PART and DENIED IN PART.

III. Dependant’s Motion for Summary Judgment [Doc. 82]

A. Standard of Review on Summary Judgment

The Court may grant summary judgment only if the record shows “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is material if resolving the factual issue might change the suit’s outcome under the governing law. Id. The motion should be granted only if no rational fact finder could return a verdict in favor of the non-moving party. Id. at 249, 106 S.Ct. 2505.

When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party’s favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The moving party need not positively disprove the opponent’s case; rather, the moving party must establish the lack of evidentiary support for the non-moving party’s position. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this initial burden, in order to survive summary judgment, the non-moving party must then present competent evidence beyond the pleadings to show that there is a genuine issue for trial. Id. at 324-26, 106 S.Ct. 2548. The essential question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

B. Copyright Infringement

To establish a prima facie case of copyright infringement, a plaintiff must prove (1) that it owns a valid copyright in the work allegedly infringed, and (2) that the defendant copied protected elements of that work. Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1223 (11th Cir. 2008); Donald Frederick Evans & Assocs., Inc. v. Continental Homes, Inc., 785 F.2d 897, 903-04 (11th Cir. 1986); Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 824 (11th Cir. 1982).

1. Ownership of a valid copyright

The first element—ownership of a copyright—may be demonstrated through registration with the Copyright Office pursuant to 17 U.S.C. § 411; Donald Frederick Evans & Assocs., Inc. v. Continental Homes, Inc., 785 F.2d at 903. The grant of copyright protection by the Copyright Office, evidenced by certificates of registration “constitute[s] prima facie evidence of the validity of the copyright and of the facts stated in the certificate,” including the requirement of originality. Id. (citing 17 U.S.C. § 410(c) and Nimmer on Copyright § 13.01[A], at 13-4), “The burden then shifts to the defendants to rebut this presumption of validity.” Id.

A certificate of registration is sufficient evidence of ownership of a valid copyright “regardless of whether the certificate contains any inaccurate information, unless ... (A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and (B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.” St. Luke’s Cataract and Laser Inst., P.A. v. Sanderson, 573 F.3d 1186, 1201 (11th Cir. 2009) (quoting 17 U.S.C. § 411(b)); see also Dream Custom Homes, Inc. v. Modern Day Const., Inc., 773 F.Supp.2d 1288, 1302 (M.D. Fla. 2011), aff'd, 476 Fed.Appx. 190 (11th Cir. 2012) (“A party may overcome the presumption of validity by providing proof of deliberate misrepresentation. A material misstatement in a copyright registration application is one which goes toward the registra-bility of the materials, such as originality, the nature of the materials to be copyrighted, and contested claims of authorship and ownership.”) “Omissions or misrepresentations in a copyright application can render the registration invalid where there has been intentional or purposeful concealment of relevant information.” St. Luke’s Cataract & Laser Inst., 573 F.3d at 1201 (internal quotations omitted); Original Appalachian Artworks, Inc., 684 F.2d at 828. “Thus, there must be a showing of ‘scienter’ in order to invalidate a copyright registration.” St. Luke’s Cataract & Laser Inst., 573 F.3d at 1201. “In general, an error is immaterial if its discovery is not likely to have led the Copyright Office to refuse the application.” Id.

Defendant challenges the validity of Plaintiffs copyright registrations based on Kester’s testimony that:

(1) he is not the sole author of the plans for which he sought and obtained copyright registration; (2) he did not disclose any additional authors on his copyright application; (3) the plans for which he sought and obtained copyright registration are derivative works based on his prior , designs, some of which were projected by copyright, and > some of which were not;, and (4) he did. not disclose the derivative nature of the works to the Copyright Office.

(Def.’s Br. Supp. Mot. at 10-11.) There are several problems with Defendant’s argument. First, Defendant has mischaracter-ized Kester’s deposition testimony. Second, Defendant has relied on facts stated only in its brief and not set forth in a separate statement of material facts as, required. See LR 56.1(B)(1)(d) (“The court will not consider any fact: ... set out only in the brief and not in the movant’s statement of undisputed facts.”); Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (“Local Rule 56.1 protects judicial resources by “makpng] the parties organize the evidence rather than leaving the burden upon the district judge [and] streamlines the resolution of summary judgment motions by focus[ing] the district court’s attention on what is, and what is not, genuinely controverted.”) (citations omitted). And third, Defendant’s assertions regarding authorship and derivative works are entirely conclusory and are not supported by-even a single citation to legal authority to substantiate the claim that.Kester’s registration contained material misrepresentations that would have impacted the Copyright Office’s decision as to the registrability of the plans,

Defendant asserts that Plaintiffs copyright registrations are invalid in light of Kester’s testimony “that he intentionally failed to disclose additional authors that provided design services” oh his developments for Crowne Partners. (Def.’s Br. Supp. Mot. at 11) (emphasis added); As Kester’s deposition testimony illustrates, Kester disputed any implication by Defendant that he was not the author of the architectural plans solely by virtue of the work of some of- his employees related to site plans—as opposed to the design of individual apartment units. (Kester Dep, at 105,- 111-12.) The only undisputed facts properly before the Court are that: (1) “Kester certified on the copyright application for each project that he was the sole author of each work,” (Defi’s SMF ¶ 9; PL’s Resp. SMF ¶ 9 (“Admitted.”)), and (2) “Kester did not notify the Copyright Office or otherwise indicate on the copyright applications that other individuals provided design services for each project,” (Def.’s SMF ¶ 10; PL’s Resp. SMF ¶ 10 (“Admitted.”)). Defendant has offered-no authority that would support a finding that other employees of Architects Collective qualify as authors of the plans for which Architects Collective received copyright registration and that by not listing them as such, all of Plaintiff’s copyright registrations are invalidated. Rather,

Under the Copyright Act, the author of a work is the initial owner of the copyright for that work. 17 U.S.C. § 201(a). When a work is “made for hire,” the employer, rather than the employee, is deemed the author. 17 U.S.C. § 201(b). Any work prepared by an employee within the scope of his or her employment qualifies as a work for hire. The employer is the author of that work and thus the owner of the copyright. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989).

LaJoie v. Pavcon, Inc., 146 F.Supp.2d 1240, 1248, n.5 (M.D. Fla. 2000); 17 U.S.C. § 201(b) (stating “[i]n the case of a work made for hire, the employer' or other person for whom the work was prepared is considered the' author for purposes of this title, and unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright”); 17 U.S.C. § 101 (defining a “work made for -hire” as “a work prepared by an employee within the scope of his or her employment”). Thus, the Court finds that Defendant has failed to satisfy its burden of demonstrating the invalidity of Plaintiffs copyright registration based on purported (but unsubstantiated) material misrepresentations regarding authorship.

Defendant further contends that Plaintiffs copyright registrations are invalid in light of Kester’s testimony that he did not disclose that the works were derivative of earlier works. A review of the deposition pages cited only in Defendant’s brief indicates that Kester did not offer testimony that architectural plans for which he sought and was granted copyright registration were “derivative” of other prior work. Plaintiff argues in response that Architects Collective’s floorplans are not “derivative works” for purposes of copyright registration because they are based entirely on Kester’s original designs. “The exclusive rights of a copyright owner include the right to prepare and to authorize others to prepare ‘derivative works based upon the copyrighted work.’ ” Peter Letterese And Associates, Inc. v. World Inst. Of Scientology Enterprises, 533 F.3d 1287, 1297, n.9 (11th Cir. 2008) (quoting 17 U.S.C. § 106(2)).

Even if Kester’s plans constitute “derivative works” under the Copyright Act, Plaintiff is correct that a failure to list a design as a pre-existing work in subsequent copyright applications does not affect the validity of the copyright for the subsequent applications. E.g., Donald Frederick Evans and Assocs., 785 F.2d at 904 (holding that “although Evans failed to list the Starshine as a pre-existing work on the Sunridge copyright registration application, this- omission does not invalidate the registration because the defendants did not offer any evidence to prove Evans’ omission was intentional or purposeful. Without proof of the scienter element, the claim fails.”). The Copyright Act requires that a registration application include “in the case of a compilation or derivative work, an identification of any preexisting work or works that it -is based on or incorporates, and a brief, general statement of the additional material covered by the copyright claim being registered.” 17 U.S.C. § 409(9). “Because a derivative work is only copyrightable to the extent that it is original, 17 U.S.C. § 103(b), it is important that the Copyright Office be informed of the preexisting work so that it may determine if the author of the derivative work has made an original contribution.” Twentieth Century Fox Film Corp. v. Marvel Enterprises, Inc., 155 F.Supp.2d 1, 23 (S.D.N.Y. 2001), aff'd in part and remanded, 277 F.3d 253 (2d Cir. 2002). “In general, failure to disclose that the registered work is derivative of an earlier, underlying work should occasion rejection of the registration certificate only if the claimant was for some reason ineligible to register the derivative work.” Nimmer on Copyright § 7.20 (2015); see also Nimmer on Copyright § 3.01 (stating that “a work will be considered a derivative work only if it would be considered an infringing work” if it were unauthorized). An author does not infringe his own work. Thus, when the author of the work for which registration is sought is also the author of the preexisting work, there is no basis to doubt his eligibility to register the subsequent work for copyright protection. For these reasons, the Court finds that Defendant has failed to satisfy its burden of rebutting the presumption of validity as to Plaintiffs copyright registration because Defendant has not demonstrated either (a) that the plans were derivative works, (b) that Kes-ter’s alleged failure to disclose that the plans were derivative works was made with the purpose-of concealing information regarding originality of the plans, or (c) that the Copyright Office’s discovery of Kester’s alleged failure to indicate on the copyright applications that the plans for each project were derivative of his prior works would have likely led the Copyright Office to refuse the application.

Accordingly, the Court DENIES Defendant’s Motion for Summary Judgment on the ground that the Plaintiffs copyrights were not properly registered.

2. Defendant’s access to Plaintiffs protected work

The second element of a plaintiffs prima facie case—copying by the defendant—can be proven by direct evidence or circumstantial evidence. Donald Frederick Evans and Assocs., Inc., 785 F.2d at 904. “Since it is virtually impossible to prove copying directly, this element is usually established circumstantially, by demonstrating that the person who composed the defendant’s work had access to the copyrighted material and that there is substantial similarity between the two works.” Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1249 (11th Cir. 1999); Home Design Servs., Inc. v. Turner Heritage Homes, Inc., 825 F.3d 1314, 1321 (11th Cir. 2016). “Just as it is virtually impossible to offer direct proof of copying, so is it often impossible for a plaintiff to offer direct evidence that defendant actually viewed or had knowledge of plaintiffs work.” Herzog, 193 F.3d at 1249.

While some courts have defined access as the actual viewing and knowledge of plaintiffs work by the defendant, the Eleventh Circuit regards a “reasonable opportunity to view” as access. Id. (citing Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 113 (5th Cir. 1978)). Despite this more relaxed standard, access to a copyrighted work may not be inferred through mere speculation or conjecture; there must be a reasonable possibility of viewing a plaintiffs work, not a bare possibility. Id. at 1241 (citing Nimmer on Copyright § 13.02[A]).

But, “evidence that a third party with whom both the plaintiff, and defendant were dealing had possession of plaintiffs work is sufficient to establish access by defendant.” Nimmer on Copyright § 13.02 (2017); cf. Herzog, 193 F.3d at 1250-51 (concluding that the Plaintiffs allegations of Defendants’ access to her screenplay were too speculative and attenuated where neither Plaintiff (film student) nor Defendants (movie screenwriter and producers) were doing business with either film critic “who was not a conduit for the film industry’ or members of the Plaintiffs thesis committee who played no role in production of alleged infringing work); see also Kamar Int’l, Inc. v. Russ Berrie & Co., 657 F.2d 1059 (9th Cir. 1981); Arthur Rutenberg Corp. v. Parrino, 664 F.Supp. 479, 481 (M.D. Fla. 1987) (finding in infringement action by architecture firm against homeowner and homeowner’s drafting firm that homeowner’s access to the Plaintiffs architectural plans was fairly attributable to the drafting firm because “evidence that a third party with whom both the plaintiff and defendant were dealing had possession of plaintiffs’ work is sufficient to establish access by the defendant”).

Here, the evidence on summary judgment shows that Crowne Partners, the mutual client of Architects Collective and Pucciano & English for whom the architectural plans at issue were designed by both parties, had physical copies of Architects Collective’s plans. The record further demonstrates that Crowne Partner’s principal, Alan Levow, asked one of his employees to forward Architects Collective’s plans to Pucciano & English and that an architect working with Pucciano & English at Levow’s insistence requested copies of those plans because she had no experience designing apartments. Despite the denials by both Crowne Partners and Pucciano & English that no plans were in fact ever shared, Plaintiff is entitled to an inference that Defendant had a “reasonable opportunity to view” the Architects Collective plans by virtue of its direct relationship with Crowne Partners. Nimmer on Copyright § 13.02 (2017); Herzog, 193 F.3d at 1250-51; Arthur Rutenberg Corp., 664 F.Supp. at 481.

“[I]t is clear that, even if evidence is unavailable to demonstrate actual viewing, proof that the defendant had the opportunity to view (when combined with probative similarity) is sufficient ... in other words, the factfinder has the discretion to reject even the uncontradicted testimony of the writer of defendant’s work that he had never in fact viewed plaintiffs work.” Nimmer on Copyright § 13.02 (2017); see also Smith v. Little, Brown & Co., 245 F.Supp. 451 (S.D.N.Y. 1965), aff'd, 360 F.2d 928 (2d Cir. 1966); De Acosta v. Brown, 146 F.2d 408 (2d Cir. 1944), cert. denied, 325 U.S. 862, 65 S.Ct. 1197, 1198, 89 L.Ed. 1983 (1945); Amstein v. Porter, 154 F.2d 464 (2d Cir. 1946). Accordingly, the Court finds that the question of whether Defendant had access to Plaintiffs copyrighted plans is a factual matter which cannot be resolved in Defendant’s favor on summary judgment. As there remains a genuine issue of material fact whether Defendant did or did not have access to Plaintiffs plans, the Court DENIES Defendant’s Motion for Summary Judgment as to this element of Plaintiffs infringement claim.

3, Substantial Similarity Between the Plans

Regardless of how copying is proved, Plaintiff must also establish that the alleged infringing work is substantially similar to Plaintiffs work. Defendant seeks summary judgment on the ground that Pucciano & English’s A4/B2/C1 unit plans are not substantially similar tp Architects Collective’s A1/B2/C2.2 unit plans.

The Copyright Act defines “architectural work” 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.” 17 U.S.C. § 101. At the same time, however, “the Copyright' Act restricts which elements of architectural floor plans are protectable” by excluding “individual standard' features” from the protectable elements of the design. Home Design Servs., 825 F.3d at 1321 (citing 17 U.S.C. § 101). According to the Act’s legislative history, “individual standard features” include “common windows, doors, and other staple building components.” H.R.Rep. No. 101-735 (1990), as reprinted in 1990 U.S.C.C.A.N. 6935, 6949; see also Oravec, 527 F.3d at 1225 (citing legislative history); Home Design Servs., 825 F.3d at 1321 (same). This definition reflects Congress’s awareness that “creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectable elements into an original, protectable whole,” H.R.Rep. No. 101-735, as reprinted in 1990 U.S.C.C.A.N. at 6949.

“While individual standard ' features and architectural elements classifiable as ideas are not themselves copyrightable, an architect’s original combination or arrangement of such features may be.” Oravec, 527 F.3d at 1225 (citing Corwin v. Walt Disney Co., 475 F.3d 1239, 1251 (11th Cir.2007) (“[A] work may be protected by copyright law when its otherwise unpro-tectable elements are arranged in a unique way.”)) Thus, both the individual design elements and the unique compilation of those elements are relevant to- the copyright infringement analysis. Jeff Benton Homes v. Alabama Heritage Homes, Inc., 929 F.Supp.2d 1231, 1241 (N.D. Ala. 2013).

Substantial similarity exists where “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914, 920 (11th Cir. 2008) (quoting Original Appalachian Artworks, Inc., 684 F.2d at 829); Oravec, 527 F.3d 1218, 1224 (11th Cir. 2008). But, “not every nook and cranny of an architectural floor plan enjoys copyright protection.” Home Design Servs., 825 F.3d at 1321. And “not all copying consti tutes infringement.” Oravec, 527 F.3d at 1224 (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The Eleventh Circuit has likened the statutory definition of “architectural work” to that of a “compilation,” and afforded architectural works “thinner” copyright protection than other creative works. Intervest, 554 F.3d at 919-920, n.3; Home Design Servs., 825 F.3d at 1321. The author’s choices as to selection coordination, or arrangement are the only portions of an architectural work that are entitled to copyright protection. Intervest, 554 F.3d at 919. Thus, “the substantial similarity analysis “must focus on similarity of expression, i.e., material susceptible of copyright protection.” Oravec, 527 F.3d at 1224 (citing Beal v. Paramount Pictures Corp., 20 F.3d 454, 459, n. 4 (11th Cir. 1994) and Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir. 2000) (stating that a copyright plaintiff “must establish specifically that the allegedly infringing work is substantially similar to the plaintiffs work with regard to its protected elements”)). The plaintiff must demonstrate both that “the similarities between the works are substantial from the point of view of the lay observer” and that “those similarities involve copyrightable material.” Id. (quoting Herzog, 193 F.3d at 1248). In other words, the “substantial similarity” must exist at “the level of protected expression—that is, the arrangement and coordination of those common elements (‘selected’ by the market place, i.e., rooms, windows, doors, and “other staple building components’).” Intervest, 554 F.3d at 919-921; Oravec, 527 F.3d at 1227.

Historically, courts have been reluctant to make subjective determinations in copyright cases regarding the similarity between two works on summary judgment. Herzog, 193 F.3d at 1247. However, a court may make a finding of non-infringement as a matter of law on summary judgment if the similarity between the works concerns only non-copyrightable elements, or if no reasonable jury, properly instructed, would find as to the protectable elements that the two works are substantially similar. Id. (citing Beal, 20 F.3d at 459); Intervest, 554 F.3d at 920; Home Design Servs., 825 F.3d at 1321 (standing by the “core premise that judges can, in certain cases, remove the question of substantial similarity from jury consideration”). In fact, the Intervest Court held that judges are generally better able to conduct this inquiry at summary judgment than jurors are at trial, especially as to claims of architectural ' infringement involving compilations of non-original elements. Intervest, 554 F.3d at 920. This is so, Intervest instructs, because

when the crucial question in a dispute involving compilations [such as architectural works] is substantial similarity at the level of protectable expression, ,,. a judge is better able to separate original expression from the non-original elements of a work where the copying of the latter is not protectable and the copying of the former is protectable ,.. a judge will more readily understand that all copying is not infringement, particularly in the context of works that are compilations [and] the ability to separate protectable expression from non-protect-able expression is, in reality, a question of law or, at the very least, a mixed question of law and fact.

Id.

The Eleventh Circuit has held that “modest dissimilarities” are significant when comparing architectural works, due to the fact that “there are only a limited number of ways” to organize a rectangle into an interior floor plan with standard architectural features including the placement of a kitchen, living room, bedrooms, bathrooms, and closets. Miller’s Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1326 (11th Cir. 2012); Howard v. Sterchi, 974 F.2d 1272, 1276 (11th Cir. 1992); Home Design Servs. v. David Weekley Homes, LLC, 548 F.Supp.2d 1306, 1313 (M.D.Fla.2008) (“there are only a finite number of ways a rectangle can be divided into bedrooms, baths, kitchen, living room, closets and so on.”).'As a result, “similarities in the general layout of rooms can easily occur innocently,” and the fact that the floor plans at issue are similar in their overall layout is not dispositive. Miller’s Ale House, 702 F.3d at 1326; Home Design Servs., Inc. v. Turner Heritage Homes, Inc., 101 F.Supp.3d 1201, 1214-15 (N.D. Fla. 2015), aff'd, 825 F.3d 1314 (11th Cir. 2016). Thus, any differences between two floor plans “would weigh heavily against a finding of substantial similarity.” Miller’s Ale House, 702 F.3d at 1326 (quoting Oravec, 527 F.3d at 1227); Home Design Servs, 825 F.3d at 1324; Jeff Benton Homes v. Alabama Heritage Homes, Inc., 929 F.Supp.2d 1231, 1252 (N.D. Ala. 2013).

In Intenest, the Court examined a set of architectural house plans, and found that although the plans shared the same overall layout, the layout was not copyrightable and the plans were not substantially similar as a matter of law due to numerous, subtle differences in the plans’ otherwise standard architectural features. See Intervest, 554 F.3d at 916-18, 921 (describing the common elements across the two floor plans at issue as four bedrooms, a two-car garage, living room, dining room, family room, foyer, kitchen, two bathrooms, a nook, and a porch, but finding that no reasonable jury could find the two floor plans at issue “substantially similar,” even though they each had a similar overall layout of rooms and living spaces). The Eleventh Circuit has twice held that because a general layout is not copyrightable, where floor plans differ in terms of “dimensions, wall placement, and the presence!),] arrangement [and function] of particular features (or use of slightly varied features),” the similarities in the plans concern only their noncopyrightable elements and thus preclude a finding of infringement. See id.; see also Home Design Servs., 825 F.3d at 1324-25 (finding no infringement despite the plans sharing in common the same set of rooms, arranged in the same overall layout, the same presence, location, and function of walls, entryways, windows, and fixtures because there was nothing unusual in the plaintiffs design choices and “[n]o one, including [plaintiff], owns a copyright to the idea of a four-three split style, nor to the industry standards that architects regularly heed to achieve such a split”).

C. Plan Comparisons

Plaintiff contends that the architectural designs of Architects Collective’s A4/B2/C2 unit plans and Pucciano & English’s A1/B2/C1 unit plans have the same “overall form, look and feel of the dwelling units” and the same “overall layout of primary spaces and certain secondary spaces of the dwelling units.” (Ex. L to PL’s Resp., Doc. 90-12 at 6-11; Ex. N to Pl.’s Resp., Doc. 90-14 ¶¶ 57-58.) Plaintiff argues that “any layperson can readily see that it was not mere coincidence” that the One Bedroom (A) Unit plans, Two Bedroom (B) Unit plans, and Three Bedroom (C) Unit plans “all were designed with the same layouts, amenities, wall sections, angles, and mechanical and plumbing details.” (PL’s Resp. at 23.) Though “[m]i-nor differences exist,” Plaintiff asserts “the overwhelming similarities negate mere cosmic chance of similarity.” (Id.) As examples, Plaintiff points out:

Defendant’s two-bedroom units (B2) share the exact same placement as the plans of Plaintiff of: the entryway, kitchen, stove, kitchen sick, double vanity in the master bath, two bathrooms in same location, balcony in same location, all the mechanical, electrical, and plumbing (M.E.P.) in same areas, living room in same area, along with the same placement of both bedrooms. See Exhibit 5, Deposition of Butch Rigsby p. 40, lines 18-25, pgs. 41-57, pg. 85, lines 1-23. For the three-bedroom units (C units) the plans share the exact same placement of: master bedroom, dining room, balcony, living room, kitchen, the range, kitchen sick, refrigerator, and entryway. See Exhibit 5, deposition of Butch Rigs-by p. 40, lines 18-25, pgs. 41-57, pg. 85, lines 1-23.

The same multitude of similarities exist for the one-bedroom unit (A units) with: the same placement of bedroom, closet, bathroom, balcony, kitchen, entryway, and interior walls. See Exhibit 5, deposition of Butch Rigsby p. 40, lines 18-25, pgs. 41-57, pg. 85, lines 1-23. See also, Document 81.2, pages 6-10.

(Id. at 23-24.) Plaintiff offers side-by-side comparisons of the unit plans as evidence of the overwhelming similarities of the units and as proof that its plans were copied by Defendant.

Defendant retained an expert, Robert Koch, to undertake an examination of Architects Collective and Pucciano & English’s unit plans for originality. Mr. Koch understands Plaintiffs claim to be that the “individual unit floor plans produced by AC [Architects Collective] are incrementally and in their entirety protected work product.” (Ex. D, Koch Report, Doc. 82-5 at 15.) Mr. Koch notes that in considering the space/function relationships that guide floor plan design, “[s]paee arrangements may occasionally differ from standard industry convention[.] However, most space arrangements are dictated by industry standards!.]” (Id. at 11.) His report provides the following examples of unit design “dictated by common convention:”

O Living/dining/and kitchen areas in current industry patterns are frequently arranged inio central “great room” expression.

O Bedrooms, closets and bathrooms are grouped as a unit.

O Exterior balconies or porches are primarily positioned as extensions of living areas.

OTwo bed/two bath units serving the adult roommate market are design as “double master/mingle” arrangements with dual split bedroom suites accessed off remote portions of a central living area.

O Three bed units serving the family market prefer split plans with secondary bedrooms and bath on opposite sides of main living area from master suite.

O Units located on ends and corners of buildings favor living areas located on the corner with windows facing two directions. Bedroom/bathroom suites resultantly are located on sides adjoining neighboring units or exit assemblies.

(Id.)

In his comparison of the unit plans, Koch first separated the elements of the comp