Amy Totenberg, United States District Judge

Brenna Nicole Wiebe, Thomas M. Askew, Wm. Greg James, Riggs, Abney, Neal, Turpen, Orbison & Lewis PC, Tulsa, OK, Chad C. Taylor, Riggs, Abney, Neal, Turpen, Orbison & Lewis PC, Oklahoma City, OK, Martha Logan Decker, Steven G. Hill, Hill Kertscher & Wharton, LLP, Atlanta, GA, for Plaintiff.

Jeffrey William Melcher, Tawana Blocker Johnson, Wilson Elser Moskowitz Edelman & Dicker LLP, Atlanta, GA, for Defendant.

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 Pucciano & 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 Kester 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 Hattiesburg, 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 A1; 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-rise 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 Kester'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 C1. (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 A1 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 Plaintiff's 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 (A1 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 Kester contends that the architectural designs of Architects Collective's C2 Unit and Pucciano & English's C1 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 Two Bedroom Unit

Three Bedroom Unit (Ex. 3 to Pl.'s Resp. to Def.'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 Kester'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 Plaintiff's 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 professional 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).

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—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 Defendant 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, at *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 works); 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 Kester 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. DEFENDANT'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 registrability 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 Plaintiff's 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 protected 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 mischaracterized 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 "mak[ing] 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 Plaintiff's copyright registrations are invalid in light of Kester's testimony "that he intentionally failed to disclose additional authors that provided design services" on 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," (Def.'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 Plaintiff's copyright registration based on purported (but unsubstantiated) material misrepresentations regarding authorship.

Defendant further contends that Plaintiff's 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 Plaintiff's copyright registration because Defendant has not demonstrated either (a) that the plans were derivative works, (b) that Kester'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 Plaintiff's copyrights were not properly registered.

2. Defendant's access to Plaintiff's protected work

The second element of a plaintiff's 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 plaintiff's work." Herzog , 193 F.3d at 1249.

While some courts have defined access as the actual viewing and knowledge of plaintiff's 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 plaintiff's 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 plaintiff's 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 Plaintiff's 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 Plaintiff's 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 Plaintiff's 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 plaintiff's 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); Arnstein v. Porter , 154 F.2d 464 (2d Cir. 1946). Accordingly, the Court finds that the question of whether Defendant had access to Plaintiff's 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 Plaintiff's plans, the Court DENIES Defendant's Motion for Summary Judgment as to this element of Plaintiff's 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 Plaintiff's work. Defendant seeks summary judgment on the ground that Pucciano & English's A4/B2/C1 unit plans are not substantially similar to 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 unprotectable 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 constitutes 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 plaintiff's 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-protectable 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 Intervest , 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 plaintiff's 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]inor 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 Rigsby 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 Plaintiff's 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]pace 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:"

? Living/dining/and kitchen areas in current industry patterns are frequently arranged inio central "great room" expression.

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

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

? Two 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.

? 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.

? 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 comparative designs that are the product of industry standards and then afforded specific attention to the elements of the design that differed one from the other. (Id. at 13.) Koch found that "[w]hile there are a number of standard features and elements found in both the copyrighted [Architects Collective] works and the Defendant's works that reflect pre-established industry standards, pre-established market preferences, and pre-defined code and regulatory mandates, there are a significant number of distinctions between the [Architects Collective] copyrighted works and the Defendant's unit floor plans." (Id. at 16.) In concluding his detailed comparison of both Plaintiff and Defendant's floor plans, Koch noted "an extensive listing of deviations suggesting strongly independent thought in the organization of each plan." (Id. at 15; Koch Report Ex. D and Ex. E.) 1. One Bedroom (A) Units

In addition to the similarities regarding the overall form, look and feel, and the overall layout of the rooms, Larry Kester also contends that the One Bedroom Units (A1 and A4) share the following similarities: (1) kitchen arrangements and arrangement of kitchen appliances; (2) nine (9) foot ceiling heights; (3) vaulted ceilings in top floor units; (4) crown molding used in living and dining rooms; (5) location of wall mounted air handler and low boy water heater spaces; and (6) use of ceiling fans. (Ex. L to Pl.'s Resp. to Def.'s SMF, Doc. 90–12 at 6–9.) The Court notes that the version of plans provided by Kester for comparison do not indicate details such as ceiling height or type, crown molding, or ceiling fans. In his report, Koch states that several interior design related decisions are not included on the unit plans, such as interior elevations of key dwelling features, millwork, and various other significant feature/detail choices are not indicated in the registered Architects Collective designs. (Doc. 82–5 at 15.) In any event, the use in both plans of individual standard features such as nine (9) foot ceilings, vaulted ceilings, crown molding, and ceiling fans is too common to warrant copyright protection. E.g., Miller's Ale House , 702 F.3d at 1326. And according to Mr. Koch, the common U-shaped kitchen layout used in both Architects Collective and Pucciano & English's plans is a standard layout under applicable housing regulations.

Although Plaintiff "disputes" Koch's opinion that the units reflect a standard arrangement of the primary and secondary living spaces in common use in the multi-family industry, Plaintiff has failed to carry its burden by presenting evidence that would raise a genuine issue of material fact on this issue. In purporting to dispute that certain design decisions are dictated by industry standards, Plaintiff asserts "[t]here is no standard arrangement of spaces as an architect is only limited by his own creativity. Even if there were certain standards, the architect would still have ample opportunities to create an original, copyrightable floor plan via independent creation." (Pl.'s Resp. Def.'s SMF ¶ 7.) Plaintiff relies exclusively on the following testimony from Larry Kester's expert deposition:

I can't tell you how many projects we worked on that are—and uniquely different than anything else. Some of them were really in awful stuff, but they're still different designs. And in that process we've taken those projects and walked them and looked at them and became familiar with them. There's hundreds of them we've renovated that are different than anything else that we're seeing in Robert Koch's report as an industry standards.

...

There's two ways to look at it. One is there's a lot of ways to arrange a dwelling unit. It's just a matter of how much time you're willing to spend to figure out

those solutions. But the other thing, which is more product of systematic method of looking at it, there's a method we refer to as permutations. You can take ten individual characters one, two, three, four, whatever, or alpha characters, put them together. There's a set mathematical equation that allows you to calculate how many different combinations you can rearrange those ten figures. And I defy you to try it because it's proven and sometimes referred to as purple math. Purple math uses a function called factorial. So if you've got six objects you multiply one times two times three times four times five times six, and in that case you'll get 750 possible alternatives you can arrange units without rotating a room. That's just in the same room position you can arrange a unit. So the theory that you can only do so many unit layouts is not true at all.

(Kester Expert Dep. 135, 138.) The Court appreciates that Mr. Kester may be echoing the recognition under Eleventh Circuit law that there is a wide potential range of ways in which architectural features can be assembled. However, the thrust of his remarks still are directed to the assertion that basic room layout design is inherently protectable creative work—a principle rejected under controlling Eleventh Circuit precedent under most circumstances.

Nor does Plaintiff provide any evidence to counter Mr. Koch's opinion that the U-shaped kitchen layout common to both Architects Collective and Pucciano & English's plans is either standard in the industry or a standard layout that complies with the Fair Housing Act. Rather in responding to this point, Plaintiff asserts only that the Fair Housing Act "does not require a 'U' shaped kitchen," and that a U-shaped kitchen "is one of any options an architect can use when designing a kitchen." (Pl.'s Resp. SMF ¶ 93.) In support of his response, Plaintiff relies on "Exhibit D, Kester_File001431–001432," a two-page photo copy of an unidentified document regarding "Residential Kitchen Planning," showing various kitchen layouts, including a U-shaped layout, and stating "[t]he layouts shown here, together with their general area requirements, are based on studies of furniture, appliances, storage, and clearances for the average residential kitchen." (Ex. D to Pl.'s Resp. to Def.'s SMF, Doc. 90–4.) Indeed, this document appears to acknowledge that U-shaped layout is commonly found in the average residential kitchen.

More specifically, Larry Kester points to the following similarities with respect to the arrangement of protected design elements in Architects Collective's Unit A1 and Pucciano & English's Unit A4 plans:

(Ex. N to Pl.'s Resp. to Def.'s SMF, Doc. 90–14 at 11–14.)

Kester's comparison also notes that: (a) the kitchens in both units are located directly off the living room, to the left side of unit when entering, (Ex. N to Pl.'s Resp. to Def.'s SMF ¶¶ 110, 111); (b) the dining areas in both units are located between living room and bedroom (Ex. N, ¶¶ 114, 115); (c) the bathrooms in both units are located directly off the dining room (Ex. N, ¶¶ 116, 117); (d) the bedrooms in both units are located on right side of dining area (Ex. N, ¶¶ 124, 125), and the bedroom closets in both units are located in upper right corner of bedroom, sharing a wall with the bathroom, (Ex. N, ¶¶ 128, 129); (e) the balcony/patio in both units abuts the living room, dining area, and bedroom, (Ex. N, ¶¶ 134, 135), and the balcony/patio access door is located in the dining area in both units, (Ex. N, ¶¶ 132, 133). But these features relate to similarities in the general floor layout of the one bedroom units, which is dictated by industry standards, and are not subject to copyright protection. See Howard v. Sterchi , 974 F.2d at 1272, 1276 (11th Cir. 1992) (affirming district court's holding that although the floor plans are visually similar and the layout is generally the same, the dissimilarities were significant and warranted granting summary judgment to defendant on claim of copyright infringement); Intervest , 554 F.3d at 916, 922 (holding that although the floor plans shared the same overall layout, the layout was not copyrightable); Home Design Servs. , 825 F.3d at 1325–26 (same).

Mr. Koch opined that neither the Architects Collective Unit A1 plan nor the Pucciano & English Unit A4 plan are unique to the industry standard for "one bedroom/one-bath back to back" apartment units. (Addendum # 2 to Expert Report of Robert A. Koch, AIA, Ex. R to Def.'s Mot., and Ex. K thereto, Doc. 82–12; Def.'s SMF ¶ 198.) He further found that the "unit floor plans contain significant evidence of independent thought in the decisions that were implemented in each plan," and noted a number of specific "unit design dissimilarities." (Id. ) The chart below contains the dissimilarities between Architects Collective's Unit A1 plan and Pucciano & English's Unit A4 plan, as noted by Mr. Koch, along with the Court's own observations of these features:

(Ex. R, Koch 2nd Addendum Report, and Exhibit K thereto, Doc. 82–12.)

Kester's side-by-side comparison (Image A) and unit plan overlay (Image B) show that Architects Collective's Unit A1 is visually very similar (but not identical) to Pucciano & English's Unit A4 with respect to the layout of the rooms and the individual standard features and fixtures within each of the rooms.

Image A (Doc. 89–3 at 10.)

Image B

(Doc. 89–3 at 11.) However, a court can find floor plans are visually similar with the same type of general layout yet find their dissimilarities significant. Howard , 974 F.2d at 1276 ; Intervest , 554 F.3d at 916–18, 921–22. In fact, the overlay shown in Image B above, demonstrates the existence of such differences.

Some similarities are present beyond the simple general room layout, including the placement of doors, appliances, and bathroom and kitchen fixtures. Although Kester asserts that the Architects Collective Unit A1 and the Pucciano & English Unit A4 have similar kitchen arrangements and arrangement of kitchen appliances, the Court finds significant differences with respect to the design of the two kitchens. The Architects Collect Unit A1 uses a standard U-shaped cabinet design while the Pucciano & English Unit A4 incorporates a floating island design. The only similarity in the appliance arrangement is the location of the refrigerator. The stove and sink are arranged in different locations in the plans.

Other notable differences include the angle of the entry door wall, direction of door swing, window type and placement, the location of the mechanical equipment room, the size of the balcony, the layout of the laundry/utility area, the addition of linen closet, and the omission of a fireplace. Consistent with controlling Eleventh Circuit precedent, the Court finds these differences in the protectable elements of the Architects Collective Unit A1 Plan and the Pucciano & English Unit A4 Plan (even if only subtle or modest) to be material and significant for purposes of the infringement analysis. See Howard , 974 F.2d at 1276 ; Intervest , 554 F.3d at 916–22 ; Home Design Servs. , 825 F.3d at 1319–22. The Eleventh Circuit has repeatedly held that despite similarities in general room layout "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.

For example, in Howard v. Sterchi , the Court of Appeals upheld a finding of non- infringement on summary judgment by the defendant who was alleged to have copied the plaintiff's residential floor plan. 974 F.2d at 1275–76. In determining whether the defendant's plan was substantially similar to the plaintiff's plan, the district court evaluated the plans' points of similarity and dissimilarity. Id. at 1276. On the one hand, the district court noted the following similarities: (1) overall layout and proportions; (2) two floors; (3) three bedrooms/two baths; (4) master bedroom on right side of first floor; (5) downstairs bathroom has tub/upstairs has shower; (6) kitchen in center rear; (7) combined dining room and living room (parlor) on left side of first floor with fireplace at center of interior wall; (8) stairs in center, facing main entry, master closet under stairs, linen closet to right of stairs on second level; (9) small deck at rear entry off of kitchen; and (10) nearly identical placement of windows. Id. On the other hand, the district court found the following differences: (1) dimensions of the rooms and the total area (1080 square feet of heated space versus 1212 square feet); (2) roof lines; (3) bay window at left rear; (4) location of range, refrigerator, washer and dryer; (5) open shelving in kitchen; (6) placement of commode and lavatory in first floor bath; and (7) door placement or orientation (right or left-handed opening) in first floor bath, coat closet, master bedroom and closets. Id. In the end, the district court held that, "although the floor plans are visually similar and the layout is generally the same, the dissimilarities are significant, particularly the roof lines, the bay window and the dimensions." Id. On appeal, the Eleventh Circuit found that the district court did not err in determining that the dissimilarities were significant and granting summary judgment to the defendant on the plaintiff's claim of copyright infringement:

The [district] court noted that in country style frame houses and in houses built with logs which dictate that only square angles be used, similarities in the general layout of rooms can easily occur innocently. The variety of ways a two-story rectangle can be divided into three bedrooms, two baths, a kitchen, a great room or living room, closets, porches, etc., is finite. In architectural plans of this type, modest dissimilarities are more significant than they may be in other types of art works. Cf. Original Appalachian Artworks, Inc. v. Toy Loft , 684 F.2d 821, 830 (11th Cir.1982)... [Plaintiffs] have failed to establish by a preponderance of the evidence the substantial similarity of the plans required to show copyright infringement.

Id.

Similarly, in Intervest , the Eleventh Circuit upheld the district court's grant of summary judgment and concluded that no reasonable jury could deem the particular floor plans at issue to be substantially similar at the level of protected expression. 554 F.3d at 921. The similarities between the floor plans noted by the district court were: (1) each plan included a four-bedroom house, with one bedroom being denominated as a "master" bedroom or suite, (2) each floor plan included a: two-car garage; living room; dining room; "family" room; foyer; "master" bathroom; kitchen; second bathroom; nook; and porch/patio, (3) the square footage of both floor plans was approximately the same. Id. at 916. Although the floor plans shared the same general layout, the district court "undertook a careful comparative analysis of the selection, coordination, and arrangement of common components and elements [and] focused upon the dissimilarities in [that] coordination and arrangement." Id. The differences noted by the district court included, among others: minor dimensional discrepancies between the plans' rooms, slight changes in the presence, arrangement, or function of various features including entrances, windows, doors, closets, water heater/HVAC, incremental modifications to a number of walls, and a smattering of other dissimilarities such as differences in bathroom and kitchen fixtures and counters, the use of French doors vs. sliding doors. Id. at 916–18. While in the abstract, the differences might appear "modest," the district court ruled that these differences precluded a finding that the floor plans were substantially similar at the level of protected expression, and the Eleventh Circuit affirmed. Id. at 921. In sum, "[b]ecause the layouts were noncopyrightable, and because the floor plans differed in terms of dimensions, wall placement, and the presence and arrangement of particular features (or use of slightly varied features), the Court held that the similarities between the plans concerned only their noncopyrightable elements." Home Design Services , 825 F.3d at 1324 (discussing Intervest ).

Finally, in Home Design Services , the Eleventh Circuit upheld the district court's post-trial finding that "no jury following the court's instructions on the law could reasonably find the [plaintiff] and [defendant's] designs substantially similar given the amount of significant dissimilarities between the plans at the level of protected expression." 825 F.3d at 1320, 1325–26. The district court in Home Design Services observed that both plans depicted a common " 'four-three split plan': a four-bedroom, three-bathroom house with a 'master' bedroom or suite on one end and three more bedrooms on the other," and "share in common the same set of rooms, arranged in the same overall layout, [and] share the presence, location, and function of many (but not all) walls, entryways, windows, and fixtures." Id. at 1316. The district court, and the Eleventh Circuit on appeal, concluded that there was no infringement. Despite the plans sharing the same general layout, the Eleventh Circuit noted this was "only because both sets of plans follow the customary four-three split style, as well as the attendant industry standards." Id. at 1325 (citing testimony of plaintiff's own expert witness who conceded that the room layout aligned with industry standards). The Court found, based on all the evidence that "the shared or similar elements between the two plans were non-protectable elements." Id. By contrast, with respect to the potentially protectable elements, the Court found they were not substantially similar:

The differences between [defendant's] and the [plaintiff's] plans are differences in dimensions, wall placement, and the presence, arrangement, and function of particular features around the house. Because the same sorts of differences indicated no infringement in Intervest , that result follows in this case as well. See Intervest , 554 F.3d at 916–18.

Id. at 1326 (noting differences pointed out by defendant's architectural expert Robert Koch regarding such elements and features as the size of front porch, use of different types of doors throughout the various rooms, lack of cased openings in foyer, location of fireplace, use of different types of windows, differences in ceiling height living room, etc).

As the Eleventh Circuit announced in Home Design Servs. , "[i]f the similarity between two works concerns only non-copyrightable elements," then there can be no copyright infringement as a matter of law." 825 F.3d at 1324. This is because "[c]ustomary styles and efficiency—or expectation-driven industry standards are not susceptible to copyright. And when floor plans are drawn in a customary style and to industry standards, even 'subtle' differences ... can indicate there is no copyright infringement" because such standards "often control room placement and features." Id. (internal citations omitted).

For these reasons, the Court finds that although there are certainly similarities between Architects Collective and Pucciano & English's one-bedroom Unit A plans, the dissimilarities identified above are sufficient to be dispositive. Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment with respect to the alleged infringement of Architects Collective's One Bedroom Unit A1 Plan.

2. Two Bedroom (B) Units

Plaintiff contends that the Two Bedroom Units (B2) have the following general similarities:

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; and

16. Use of ceiling fans.

(Ex. L to Pl.'s Resp., Doc. 90–12 at 6–9.) As stated above, however, despite the fact that the plans share in common the same set of rooms, arranged in the same overall layout, these shared elements are not copyrightable elements. E.g., Home Design Servs. , 825 F.3d at 1326 ; Medallion Homes Gulf Coast, Inc. v. Tivoli Homes of Sarasota, Inc. , 656 Fed.Appx. 450, 454–55 (11th Cir. 2016)

Thus, the Court turns to Kester's comparison of similarities in the individual design elements of Architects Collective's Unit B2 and Pucciano & English's Unit B2 plans, identified as follows:

[Editor's Note : The preceding image contains the reference for footnotes ^{, ,} ]

[Editor's Note : The preceding image contains the reference for footnotes ^, ]

[Editor's Note : The preceding image contains the reference for footnotes ^, ]

(Ex. N to Pl.'s Resp., Doc. 90–14 at 1–6.)

Mr. Koch compared the Unit B2 plans of Architects Collective and Pucciano & English and found that the only similarities in unit design were the layout as a two bedroom, double master based on industry standards and the standard U-shaped kitchen layout. (Ex. D, and Exhibit D thereto, Doc. 82–5 at 22.) The chart below details the multitude of dissimilarities identified by Mr. Koch between Architects Collective's and Pucciano & English's Unit B2 plans, along with the Court's observations:

[Editor's Note : The preceding image contains the reference for footnotes ]

(Koch Report, Ex. D and Exhibit D thereto.)

Larry Kester's side-by-side comparison (Image A) shows that Architects Collective's Unit B2 is somewhat visually similar to Pucciano & English's Unit B2 with respect to the layout of the rooms and the individual features and fixtures within each of the rooms.

Image A As with the Unit A overlay comparison, while there are similarities in the overall plan, the unit plan overlay (Image B) of the B2 Units below also demonstrates numerous differences in the plans, including differences in room shape and dimensions, wall placement, and the presence, arrangement, and function of particular features in the units such as doors, windows, and other fixtures.

Image B

(Doc. 89–3 at 6–7.)

Aside from the similarities in the "general layout," of the floor plan, i.e. the arrangement of the various rooms in relation to one another according to industry standards, other similarities are apparent. These include the placement of various doors, windows, the identical arrangement of the fixtures in both bathrooms, the arrangement of the laundry area, the location of the fireplace, and the identical arrangement of all elements of the kitchen and appliances. At the same time, a number of differences are present with respect to some of these same design features including, placement of various doors and closets, the use of a double window in lieu of a sliding glass door, and differences in the size of certain room openings and closets. In light of the controlling authority in this Circuit, these "modest dissimilarities" are more significant when dealing with architectural designs. Such "modest dissimilarities" indicate that these plans differ where it matters: at the level of protectable expression. Intervest , 554 F.3d at 921. The Court thus concludes as a matter of law that the differences must be regarded as substantial and dispositive, and that the similarities between the Architects Collective Unit B2 and Pucciano & English Unit B2 floor plans exist for the most part at a broad conceptual level, which is not protectable under the Copyright Act.

Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment with respect to the alleged infringement of Architects Collective's Two Bedroom Unit B2 Plan.

3. Three Bedroom Units

As noted above, Plaintiff originally contended, when the Complaint was filed, that Defendant's C1 three bedroom unit plan infringed Plaintiff's three bedroom Unit C2.2 plan. During discovery, however, upon receiving a full set of Defendant's plans, Mr. Kester determined that Defendant's C1 three bedroom unit plan bears "a more substantial and striking similarity" to his three bedroom Unit C2 plan and is "the most applicable plan to support [Plaintiff's] claims that Defendant Pucciano & English infringed Plaintiff's unit plans." (Doc. 116.) This was made clear in Plaintiff's initial mandatory disclosures filed in this case. (Ex. L and Ex. N to Pl.'s Resp. to Def.'s SMF.)

While the Architects Collective Unit C2.2 and Unit C2 plans are very similar, there are material differences, most notably: (i) an interior entry stairwell in Unit C2.2 that is not present in Unit C2, (ii) differences in the size and shape of the various rooms, (iii) placement of the laundry room, and (iv) the inclusion of an additional bathroom in the Unit C2 plan. (Compare Doc. 1–2 with Doc. 89–3 at 4, 8, 14, and 18.) Thus, Plaintiff relies exclusively on a comparison of the Architects Collective Unit C2 plan (as opposed to the Unit C2.2) with the Pucciano & English Unit C1 plan in support of its infringement claim and in opposition to Defendant's summary judgment motion. A side-by-side comparison and unit plan overlay of Architects Collective's Unit C2 and Pucciano & English's Unit C1 is attached to this Order as Appendix A.

Defendant has offered no comparison of the Architects Collective Unit C2 plan with the Pucciano & English Unit C1 plan in support of its motion, and Mr. Koch does not address Architects Collective's Unit C2 in his expert report, though he had a copy of the C2 unit in his file. Instead, because Plaintiff only specifically referenced Architects Collective's Unit C2.2 attached as an exemplar to its Complaint, Defendant compared Architects Collective's Unit C2.2 and Pucciano & English's Unit C1 plans and those are the plans addressed by Mr. Koch in his expert report. Because Defendant has not undertaken its own comparison of the C2 and C1 three bedroom plans, the Court notes any obvious discrepancies in Plaintiff's description of the similarities or any differences clearly apparent from the plans (without the assistance of an architectural expert). The similarities identified by Mr. Kester between Architects Collective's Unit C2 and Pucciano & English's Unit C1 plans, along with the notable differences observed by the Court, are attached as Appendix B to this Order.Mr. Koch, on the other hand, reviewed only the Architects Collective Unit C2.2 plan to determine its dissimilarities with Pucciano & English's Unit C1 plan. Defendant's comparison of the three bedroom plans in its Statement of Material Facts is based on Mr. Koch's comparison using the Architects Collective Unit C2.2 plan. It would be reasonable to presume that Plaintiff's response to Defendant's Statement of Material Facts refers to the differences between the C2.2 unit plan and Pucciano & English's Unit C1 plan. However, the evidence Plaintiff relies on in support of its Response—Exhibit L (Kester's January 27, 2015 Supplemental Disclosure of Expert Testimony), Exhibit M (Plaintiff's Supplemental Responses to Interrogatories and Requests for Production of Documents), and Exhibit N (Kester's numbered narrative of comparisons of the unit plans)—all discuss the C2 unit plan and make no reference to the C2.2 unit plan. It therefore appears that Plaintiff has not provided a response regarding Koch's comparison using the C2 plan. A chart detailing the dissimilarities between the C2.2 and C1 units noted by Mr. Koch, along with the Court's observations is attached as Appendix C to this Order.

Without the benefit of either (i) a comparison of the dissimilarities of the Architects Collective C2 unit by Mr. Koch, or (ii) a comparison of the similarities of the Architects Collective C2.2 unit by Mr. Kester, this Court cannot and will not, on its own, make a finding regarding whether these plans are substantially similar to Pucciano & English's C1 unit plan. Some similarities and dissimilarities are plainly obvious from "eyeballing" the plans (as noted in the Court's observation section of the charts attached). However, it would be imprudent for the Court to consider on summary judgment issues not directly addressed by the parties.

Accordingly, the Court DENIES Defendant's Motion for Summary Judgment with respect to the alleged infringement of Architects Collective's Three Bedroom Unit C2 Plan. IV. CONCLUSION

The Court takes pause to note the inherently subjective, fact-intensive nature of the substantial similarity inquiry—despite the Eleventh Circuit's delegation of the task to the judge rather than the jury. See Home Design Servs., Inc. v. Turner Heritage Homes, Inc. , 825 F.3d 1314, 1328 (11th Cir. 2016) (Rosenbaum, concurring). As the Eleventh Circuit has previously stressed:

'At the most narrow, focused level, two works will almost always be distinguishable, and at the broadest level of abstraction they will almost always appear identical.' Baby Buddies, Inc. v. Toys R Us, Inc. , 611 F.3d 1308, 1316 (11th Cir. 2010). As a result, '[l]ists of similarities between the two works are inherently subjective and unreliable, particularly where the list contains random similarities, and many such similarities could be found in very dissimilar works' Herzog v. Castle Rock Entm't , 193 F.3d 1241, 1257 (11th Cir. 1999) (internal quotation marks omitted).

Id. As a result, this Court's task involved the marshaling of numerous similarities and a few modest differences. "Architecture is not unlike poetry," observed Congress in amending the Copyright Act in 1990 in concluding that architecture is a "writing" protected under the Act. H.R. Rep. No. 101–735 (1990), as reprinted in 1990 U.S.C.C.A.N. 6935, 6941. And so, Nabokov's sentiment in Pale Fire is apropos: "Resemblances are the shadows of differences. Different people see different similarities and similar differences." Vladimir Nabokov, Pale Fire (1962).

For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Defendant's Motion to Exclude Expert Testimony of Larry Kester [Doc. 81] and GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment [Doc. 82]. The Court also DENIES Defendant's Motion to Strike Plaintiff's Response to the Court's March 6, 2017 Order [Doc. 122] requesting clarification by the parties regarding the C2 and C2.2 plans. With respect to Plaintiff's only remaining claim, Defendant's alleged infringement of the Unit C2 three bedroom plan, the Court ORDERS Plaintiff and Defendant to private mediation. The parties shall advise the Court within work 5 days of the date of this Order if they cannot agree on a private mediator, in which case the Court will appoint one. Mediation shall conclude within 40 days of the date of this Order. In the event mediation is unsuccessful, the parties SHALL file their Consolidated Pretrial Order within 20 days of the conclusion of mediation. The Court DIRECTS the Clerk of the Court to administratively close this case and re-open it upon the filing of the Consolidated Pretrial Order. If the parties resolve the case through mediation, they are DIRECTED to file a stipulation of dismissal.

IT IS SO ORDERED this 29th day of March, 2017.

APPENDIX A

A side-by-side comparison (Image A) and unit plan overlay (Image B) of Architects Collective's Unit C2 and Pucciano & English's Unit C1 is shown below:

Image A

Image B (Doc. 89–3 at 8–9.)

APPENDIX B

APPENDIX C

[Editor's Note : The preceding image contains the reference for footnotes ^, ]

[Editor's Note : The preceding image contains the reference for footnotes ^, ]

(Ex. N to Pl.'s Resp., Doc. 90–14 at 6–11.)