Charles W. Ross Builder, Inc. v.
Olsen Fine Home
Building, 2012 WL 5447871 (Fourth Circuit November 8, 2012).
Couple wishes to build new home.
Visit model and get brochures.
Builder sends renderings unsolicited.
Months later builder’s representative visits couple’s house under
construction and sees plans. Builder
sues couple and couple’s builder and architect for copyright infringement. District court awards summary judgment based
on lack of substantial similarity based on the Second Circuit’s “discerning
observer” test. Fourth Circuit vacates
and remands. Applies
“intrinsic/extrinsic” test for substantial similarity. Extrinsic test is an objective inquiry that
scrutinizes external criteria of substantial criteria in both ideas and
expression. Intrinsic test is a
subjective inquiry as to whether an ordinary observer in the intended audience
would be disposed to overlook them and to regard the aesthetic appeal as the
same.
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