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Builder’s copyright claim revived for home design

A Williamsburg custom home builder can go back to court to prove his claim that a competing builder infringed his copyrighted design when he built a Georgian-style home for a couple who had visited a model home in the Ford’s Colony subdivision.

The 4th U.S. Circuit Court of Appeals revived a copyright claim filed by Charles W. Ross Builder Inc. against Olsen Fine Home Building LLC. Senior U.S. District Judge Robert G. Doumar had granted summary judgment to Olsen, saying Olsen’s allegedly infringing design was not “substantially similar” to Ross’ design because both incorporated classic elements of Georgian architecture and were subject to design restrictions imposed by Ford’s Colony.

The district court applied the wrong test to determine whether the home in question was substantially similar to Ross’ design, the 4th Circuit said in a Nov. 8 unpublished opinion.

The home’s owners, Rick and Jennifer Rubin, had visited the Ross model home and received a copy of a Ross brochure, “Places to Call Home,” with a portfolio of the company’s proprietary model homes, including the “Bainbridge” model allegedly copied by their builder.

Ross did not provide direct evidence of copying, but Doumar assumed, without deciding, that the defendants had access to the Bainbridge model plans.

Keenan acknowledged the 4th Circuit has not previously considered a copyright claim brought under the Architectural Copyright Act, but said it had used a two-part test in an earlier case involving furniture design. Under the test in Universal Furniture Int’l v. Collezione Europa USA Inc., a court has to consider both the “extrinsic” and “intrinsic” similarity of the works in question. Extrinsic similarity is an objective inquiry, while intrinsic similarly is a subjective inquiry.

Doumar erred by using a “more discerning observer” test from a 2nd Circuit case, which distinguishes between protectable and non-protectable elements of design.

Although the district court had undertaken a “lengthy comparative analysis” of the designs at issue in Ross, the appellate panel said it could not determine the court would have reached the same conclusion had it applied the two-part test. In Charles W. Ross Builders Inc. v. Olsen Fine Home Bldg. LLC, the panel vacated summary judgment for the defendant and remanded the case.

By Deborah Elkins

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