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Defendant Can't Explain Bootlegged Blueprints, Still Wins

By William Peacock, Esq. on February 28, 2013 | Last updated on March 21, 2019

Building Graphics, Inc., designs family homes. In the 1990s, BG designed three plans that were later sold to other builders. Two of the designs were used to build a pair of houses (one per design) in the Charlotte area. The designs were also available online for purchase as "stock" plans. The third design's plans were available offline for sale. All three were copyrighted.

Lennar Corporation builds homes in 18 states. Before jumping into a market, they conduct "due diligence" of recently built homes in the area, which includes analyzing floor plans, features, and prices. However, Lennar maintains that it is limited to homes currently being built and sold, not completed examples.

In 2001, Lennar hired Drafting & Design to develop a few floor plans -- the ones in dispute -- based on a provided design. They claimed that they got the design from John Gardner, an employee that came with a company that was acquired in 2000.

They were either mistaken or lying. Gardner was acquired with a different company in 2001, after the allegedly-infringing plans were created. It's a factual impossibility.

So they were caught: either in fib or foible. Plus, they still cannot provide a satisfactory explanation for the origins of the homes.

But that's the thing about being a defendant - you don't necessarily have to.

The Fourth Circuit discusses the similarities between the plans in depth on pages 5-7 of the opinion, but if you flip to the appendix, the similarities are beyond obvious. It really does appear that Lennar or D&D took BG's plans, added a few inches here and there, changed a few tiny details, and hit print.

Appearances, however, are not enough.

Building plans are considered "compilations" and subject to "thin" copyright protections. In order to prevail, BG would have to show "substantial similarity" between the works.

There is no direct evidence here; only circumstantial. BG first has to show that Lennar had access to the plans. This must be more than mere speculation or possibility - it must be reasonably possible that the paths of the parties crossed.

The court cited the example of the Baltimore Ravens' logo lawsuit. An artist designed a logo, passed it on to someone involved in moving the team to Maryland, and that person had an office in the same building as the team owner. The eventual logo resembled the proposed logo.

Here, there was nothing of the sort. The only thing we have in this case is what we see. Seeing can be deceiving. There must be more.

BG argued that Lennar's "due diligence" process could have provided them access. However, there were only two known houses built out of three allegedly-infringed plans. The availability of the plans, through various mediums, is not enough either. Availability does not equal access.

As the court put it, this amounts to "inferences built upon inferences ... a mere possibility of access." So, while BG may win the eye test, Lennar wins the copyright test.

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