Tivoli Homes of Sarasota
In Medallion Homes Gulf Coast, Inc. v. Tivoli Homes of Sarasota, Inc., 2016 WL 3996671 (11th Cir. 2016) the U.S. Court of Appeals affirmed a district court's grant of summary judgment in a case involving an architectural copyright.
These cases typically involve a builder allegedly taking the plans of another builder and constructing homes.
The decision acknowledges similarities in the plans, but focuses on the differences. The decision is not remarkable, except for a footnote that seemed rather startling and perhaps a cautionary note for those who charge into court thinking that proving actual copying will be good enough in prevailing in copyright infringement actions. Here it looked like the plaintiff had found the proverbial "smoking gun" that would at least get the question before a jury:
Medallion argues that there is undisputed direct evidence of copying as demonstrated by Nicole Duke’s deposition testimony that she made handwritten redline modifications and annotations to a printout of the Santa Maria floor plan provided to her by Medallion and then showed that modified plan, along with other materials, to the draftsman for the purpose of preparing the Duke plan. However, Tivoli denies copying. In any event, the record, at most, would support a finding that Defendants made a copy only of Medallion’s Santa Maria design as modified by Mrs. Duke. Moreover, even if there were evidence that the Dukes attempted to copy the Santa Maria plan, "there is no infringement unless the defendant succeeded to a meaningful degree." Leigh, 212 F.3d at 1214. Therefore we would still need to perform the same substantial similarity analysis performed below.
Thus, if the McMansions are different, it appears that copying the floor plans and making a derivative work doesn't constitute copyright infringement in the Eleventh Circuit.
Rather than letting a jury decide the questions raised from the evidence, the Eleventh Circuit slammed the courthouse doors shut. The Seventh Amendment guarantees the right to a jury trial in civil actions, and this seems like a fact-specific determination that ought to have been resolved by a jury.
The Eleventh Circuit seems to have raised the bar too high in these cases and where, as here, there was proof of direct copying and preparation of a derivative work, the jury should have had the opportunity to test the credibility of the evidence and make findings of fact.
The three wise monkeys (Japanese: 三猿 Hepburn: san'en or sanzaru?, alternatively 三匹の猿 sanbiki no saru, literally "three monkeys"), sometimes called the three mystic apes,[1] are a pictorial maxim. Together they embody the proverbial principle "see no evil, hear no evil, speak no evil".[2] The three monkeys are Mizaru, covering his eyes, who sees no evil; Kikazaru, covering his ears, who hears no evil; and Iwazaru, covering his mouth, who speaks no evil.[3]
= Source Wikipedia https://en.wikipedia.org/wiki/Three_wise_monkeys
Read the Eleventh Circuit's full opinion here.
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Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
