Savant Homes, Inc. v. Collins

809 F.3d 1133

SAVANT HOMES, INC., Plaintiff–Appellant,

v.Douglas W. COLLINS; Douglas Consulting, LLC, d/b/a Collins Custom Builders; Stewart King, d/b/a Kodiak Custom Design; Tammie Wagner; Ron Wagner, Defendants–Appellees.

No. 15–1115.

United States Court of Appeals, Tenth Circuit.

Jan. 4, 2016.

Alan F. Blakley (Tyler R. Rauert, with him on the briefs), Blakley Justice, LLC, Longmont, CO, appearing for Appellant.

Jacob W. Paul, Coan Payton & Payne, LLC, Greeley, CO, appearing for Appellees Douglas W. Collins and Douglas Consulting, LLC.

Thomas P. Howard (William C. Groh, III, with him on the brief), Thomas P. Howard, LLC, Louisville, CO, appearing for Appellees Ron and Tammie Wagner.

Stewart King, pro se, Windsor, CO, filed a brief.

Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Plaintiff Savant Home, Inc. ("Savant") is a custom home designer and builder. It holds a registered copyright to a floor plan of a three-bedroom ranch house ("Anders Plan"). Savant built a model house embodying that plan in Windsor, Colorado ("Savant house"). In June 2009, Ron and Tammie Wagner toured the Savant house and hired builder Douglas Collins and his firm, Douglas Consulting, LLC (jointly, "Collins") to build a house. Collins, in turn, contracted with Stewart King to design the house. After Collins and Mr. King completed the Wagners' house, Ms. Wagner hired them to build a second house.

Savant sued all of the foregoing parties for copyright infringement, contributory copyright infringement, civil conspiracy, trade dress infringement, and other claims. It alleged that Defendants copied the Anders Plan by building the two houses ("accused houses"). The district court granted Defendants summary judgment, and Savant appeals.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual History

The Anders Plan, embodied by the Savant house, is a ranch house with two bedrooms on one side and a master suite on the other, separated by a combined family room, dining room, and kitchen. Savant has built and sold six Anders Plan houses.

On June 6, 2009, the Wagners hired Collins to build a house at 300 Madera Way, Windsor, CO, in anticipation of their move from Arizona to Colorado. That same month, the Wagners traveled to Colorado and toured the Savant house, where they obtained a brochure of the Anders Plan. The Wagners returned to the Savant house that August with Collins and Mr. King, the designer Collins had hired.

Collins completed construction of the 300 Madera Way house in 2010. The Wagners subsequently separated, after which Ms. Wagner hired Collins to build another house at 8466 Blackwood Drive, Windsor, CO. The houses at 300 Madera Way and 8466 Blackwood Drive are both ranch houses with two bedrooms on one side and a master suite on the other, separated by a combined family room, dining room, and kitchen. We discuss additional facts as necessary below.

B. Procedural History

Savant sued the Wagners, Collins, and Mr. King, alleging copyright infringement, contributory copyright infringement, civil conspiracy, trade dress infringement, intentional interference with business advantage, civil theft, and deceptive trade practices.

The Wagners and Collins moved for summary judgment, offering an expert report by architect Rob Fisher.¹ Mr. Fisher stated that numerous aspects of the Anders Plan were standard among three bedroom ranch houses, addressing functional concerns or market demand. He provided four example floor plans from a third-party online plan service company, monsterhouseplans, which included similar layouts.

In response, Savant offered an expert report by architect Justin Larson. Mr. Larson opined that the accused houses and the Anders Plan exhibited "shocking similarities," indicating that Defendants "very likely" intended to "replicate the Anders Plan." Aplt.App. at 404–05. He did not identify specific or overall aspects of the Anders Plan that were a product of architectural creativity, nor did he respond to Mr. Fisher's analysis indicating that the Anders Plan consisted of standard content. On the contrary, Mr. Larson acknowledged that "[m]any homes in this neighborhood, and many others, likely share very similar programs." Id. at 404.

The district court granted Defendants summary judgment on every claim.² Savant appeals the grant of summary judgment only as to the claims of copyright infringement, contributory copyright infringement, civil conspiracy, and trade dress infringement.

On the copyright infringement claim, the district court decided Savant had failed to carry its summary judgment burden. More specifically, the court concluded Savant had not shown that the Anders Plan included any protectable content. The court ruled this failure precluded a finding of substantial similarity—an essential element of copyright infringement.³ The court also concluded the contributory copyright infringement and civil conspiracy claims failed because they were dependent on the copyright infringement claim. Finally, the court granted summary judgment on the trade dress infringement claim because Savant offered insufficient evidence of (1) inherent distinctiveness or secondary meaning and (2) a likelihood of confusion. We affirm.

II. DISCUSSION

A. Standard of Review and Summary Judgment Standard

We review a grant of summary judgment de novo. Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1266 (10th Cir.2015). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). An issue is genuine "if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir.2013) (quotations omitted); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is material "if under the substantive law it is essential to the proper disposition of the claim." Becker, 709 F.3d at 1022 (quotations omitted); see Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

"The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law." Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir.2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). A movant who does not bear the burden of persuasion at trial may satisfy this burden "by pointing out to the court a lack of evidence on an essential element of the nonmovant's claim." Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548 ).

"If the movant meets this initial burden, the burden then shifts to the nonmovant to set forth specific facts from which a rational trier of fact could find for the nonmovant." Id. (quotations omitted) (citing, among others, Celotex, 477 U.S. at 324, 106 S.Ct. 2548 ). To satisfy this burden, the nonmovant must identify facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. (citation omitted). These facts "must establish, at a minimum, an inference of the presence of each element essential to the case." Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir.2001) ; see also Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (explaining a movant is entitled to summary judgment when "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof").

Finally, "[a]lthough our review of the record is de novo, we conduct that review from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties." Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1223 (10th Cir.2008) (quotations omitted). Like the district court, we have "discretion to go beyond the referenced portions" of the evidence but are "not required to do so." Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir.1998).

B. Copyright Infringement Claim

We affirm the grant of summary judgment on Savant's copyright infringement claim. First, as the district court concluded, Savant failed to show the Anders Plan included any protectable elements or arrangement of elements. Second, Savant's contentions that the district court erred lack merit.

1. Legal Background

A plaintiff must prove two elements to establish copyright infringement: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) ; see Blehm v. Jacobs, 702 F.3d 1193, 1199 (10th Cir.2012). The parties do not dispute that Savant owns a valid copyright in the Anders Plan.

The copying element consists of two components. First, a plaintiff must show a defendant copied the plaintiff's work "as a factual matter." Blehm, 702 F.3d at 1199 (quotations omitted). Second, a plaintiff must demonstrate "substantial similarity between the allegedly infringing work and the elements of the copyrighted work that are legally protected." Id. (quotations omitted). This second component "determines whether a defendant's factual copying constitutes infringement." Id. Defendants do not dispute that Savant demonstrated factual copying. Accordingly, only substantial similarity is at issue.

To decide the substantial similarity issue, a court must determine (1) which elements of the copyrighted work are protectable, and (2) whether these elements are substantially similar to the accused work. Blehm, 702 F.3d at 1200. A court may address either step first. Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 833 (10th Cir.1993).

a. Protectable Elements

We begin with the general requirements of protectability and then address...