Proving copyright infringement of a song, screenplay, or house design typically relies on circumstantial evidence because eyewitnesses or a confession by the defendant are rarely available.
Proving copyright infringement of a song, screenplay, or house design typically relies on circumstantial evidence because eyewitnesses or a confession by the defendant are rarely available. So the courts established “reasonably possible access” as one criterion of a multi-step definition that plaintiffs must establish to prove whether infringement occurred.
Trial in district court
Building Graphics sued Lennar in 2008 for infringement, alleging that the first floor layout and front elevations of Lennar and Drafting & Design’s home plans for the builder’s Summerlin, Hampton, Hudson, Abbey, and Bluffton houses were similar to Building Graphics’ protected designs. The firm argued Lennar had opportunity to view and copy the work because two homes had already been built and the designs were posted on the Internet and available in marketing brochures.
Appeal in the Fourth Circuit
When an appeals court reviews a lower court’s grant of summary judgment de novo (anew), it reviews the facts and draws all reasonable inferences in a light most favorable to the non-moving party, which in this case was Building Graphics. But even under that approach, the U.S. Court of Appeals for the Fourth Circuit concluded Building Graphics’ evidence at trial did not “give rise to more than a mere possibility of access.” The appeals court issued an opinion last February supporting the lower court’s ruling in applying the long-established measure that “reasonably possible access” is the threshold for an inference of infringement.
Takeaways for builders and architects
Designing and constructing production housing is subject to structural constraints and marketplace imperatives that require designers and builders to observe prevailing tastes while innovating. Yet, the risk of unwittingly committing copyright infringement in this environment is ever-present. Which steps can architects and builders take to reduce these risks?
Mitch Tuchman practices intellectual property law in the Research Triangle Park, N.C. office of Womble Carlyle Sandridge & Rice, LLP. He can be contacted at MTuchman@wcsr.com.