In the end, this litigation, like all frivolous litigation, did nothing for the parties involved. The only thing enriched was the legal system - the lawyers, clerks and judges - all working under the cloak and auspices of fairness and justice perpetuated a petty dispute into a major event. Anyone could, just as the jury did, look at the two sets of plans and conclude that they were not copies of one another. Yet legal briefs were made, filed, responded to, considered, thought about, and rebutted - for seven painful years.
Legal bill after bill came - clerks dutifully filed the paper work and collected paychecks, judges and magistrates thoughtfully read motion after motion and ruled, continuing the game, collecting pay checks of their own. It was hard to figure out how the system continued on, or why. What was the point? Was it fairness, or self importance of the people deciding? Was it the grandeur of the law? Who benefited?
In the end, the people in the system benefited, stirring a pot of nothing into income.
Thursday, October 7, 2010
Vermont Timber Works Wins Fees from Timberpeg!
From Case 1:03-cv-00462-SM Document 236 Filed 09/30/10 "....the
court will award the prevailing defendants $35,000.00 in
attorney’s fees."
In this case, Timberpeg demanded $25,000 from VTW to settle a copyright infringement case when Isbitski, our mutual client, chose to build with VTW instead of Timberpeg. After seven brutal years of legal battle, Vermont Timber Works has prevailed and Timberpeg must pay VTW $35,000.00.
While the award of fees is not nearly enough to cover all the legal costs in the case, hopefully it will deter litigants from pursuing copyright infringement cases that are fundamentally weak on the merits.
court will award the prevailing defendants $35,000.00 in
attorney’s fees."
In this case, Timberpeg demanded $25,000 from VTW to settle a copyright infringement case when Isbitski, our mutual client, chose to build with VTW instead of Timberpeg. After seven brutal years of legal battle, Vermont Timber Works has prevailed and Timberpeg must pay VTW $35,000.00.
While the award of fees is not nearly enough to cover all the legal costs in the case, hopefully it will deter litigants from pursuing copyright infringement cases that are fundamentally weak on the merits.
Thursday, November 19, 2009
Architectural Copyright Law
Wikipedia has a great page on architectural copyright law. The T-Peg v Vermont Timber Works case is cited, as it is one of the only Architectural Copyright Protection Act cases to make it to the circuit court level.
Wednesday, November 11, 2009
T-Peg's Argument v VTW's Argument
In the motion for fees, Vermont Timber Works argues that T-Peg's case was unreasonable, if not frivolous, for the following reasons:
1) T-Peg's expert is on the record saying that the frame designs are "....different, definitely."
2) Most of the windows and doors T-Peg showed on their architectural drawings either would not physically fit into the VTW frame or would be placed awkwardly according to testimony at trial by T-Peg's own experts. In fact, one expert agreed that it would be easier to move a T-Peg window than to cut away the VTW frame with a chainsaw.
3) At trial, T-Peg's experts agreed that 24 of 26 posts were different in size, location or notching.
4) T-Peg knew, or should have known, all of the above when they visited the VTW frame in 2003, yet they continued to pursue Vermont Timber Works with a losing case all the way through trial.
Here is that actual text from the motion for fees as written by Ned Whittington:
"Preliminary Statement:
This case is six years old, and the Court is now intimately familiar with it. Defendants made a conscious decision not to settle for releases but to go through the expense, burden and risk of trial because that was the only method by which they could “prevail” and thereby recoup litigation expenses which were, of course, were involuntarily incurred. Without an award of fees, the case will have been a monumental financial disaster for them.
They believe a fee award is appropriate because –
- Plaintiffs knew from the start that the VTW frame did not “accommodate” the Timberpeg design (accommodation being the linchpin of their case), that 24 of the 26 posts were “different,” and that the Timberpeg windows and doors did not physically fit into the VTW design. Yet they continued to prosecute this case for six years, causing enormous financial and emotional consequences to both the corporate and individual defendant.
- Defendants were involuntarily involved in major litigation for six years despite having done nothing wrong.
- The Copyright Act and case law permit fee awards in situations such as this, and the First Circuit has held that fees must be awarded where the plaintiff makes “misleading misrepresentations” and/or made a “shift in its theory of the case to avoid summary judgment,”as shown below.
From the start, and several times during mediation, VTW offered to settle if its legal fees were paid by plaintiffs. Each time, plaintiffs refused and instead chose to continue a losing case to avoid paying VTW anything. Friant, and VTW’s other principal, Kelleher, spent hundreds of hours of company time on this baseless suit when they could have been earning a living. Those costs can never be recovered. VTW’s view, at the start and now, has not changed: the least Timberpeg should do is pay for the cost of the litigation, particularly after intentionally misleading the First Circuit (see p. 8 below) and doing everything in their power to prolong the case."
Timberpeg has not yet responded to the motion. Perhaps their argument will say that the case was justified by the 1st Circuit's decision to allow it to go forward, or that the differences in the over-all form were minor, or that they honestly believed that they had an objectively reasonable case.
1) T-Peg's expert is on the record saying that the frame designs are "....different, definitely."
2) Most of the windows and doors T-Peg showed on their architectural drawings either would not physically fit into the VTW frame or would be placed awkwardly according to testimony at trial by T-Peg's own experts. In fact, one expert agreed that it would be easier to move a T-Peg window than to cut away the VTW frame with a chainsaw.
3) At trial, T-Peg's experts agreed that 24 of 26 posts were different in size, location or notching.
4) T-Peg knew, or should have known, all of the above when they visited the VTW frame in 2003, yet they continued to pursue Vermont Timber Works with a losing case all the way through trial.
Here is that actual text from the motion for fees as written by Ned Whittington:
"Preliminary Statement:
This case is six years old, and the Court is now intimately familiar with it. Defendants made a conscious decision not to settle for releases but to go through the expense, burden and risk of trial because that was the only method by which they could “prevail” and thereby recoup litigation expenses which were, of course, were involuntarily incurred. Without an award of fees, the case will have been a monumental financial disaster for them.
They believe a fee award is appropriate because –
- Plaintiffs knew from the start that the VTW frame did not “accommodate” the Timberpeg design (accommodation being the linchpin of their case), that 24 of the 26 posts were “different,” and that the Timberpeg windows and doors did not physically fit into the VTW design. Yet they continued to prosecute this case for six years, causing enormous financial and emotional consequences to both the corporate and individual defendant.
- Defendants were involuntarily involved in major litigation for six years despite having done nothing wrong.
- The Copyright Act and case law permit fee awards in situations such as this, and the First Circuit has held that fees must be awarded where the plaintiff makes “misleading misrepresentations” and/or made a “shift in its theory of the case to avoid summary judgment,”as shown below.
From the start, and several times during mediation, VTW offered to settle if its legal fees were paid by plaintiffs. Each time, plaintiffs refused and instead chose to continue a losing case to avoid paying VTW anything. Friant, and VTW’s other principal, Kelleher, spent hundreds of hours of company time on this baseless suit when they could have been earning a living. Those costs can never be recovered. VTW’s view, at the start and now, has not changed: the least Timberpeg should do is pay for the cost of the litigation, particularly after intentionally misleading the First Circuit (see p. 8 below) and doing everything in their power to prolong the case."
Timberpeg has not yet responded to the motion. Perhaps their argument will say that the case was justified by the 1st Circuit's decision to allow it to go forward, or that the differences in the over-all form were minor, or that they honestly believed that they had an objectively reasonable case.
Friday, November 6, 2009
Motion for Fees
Copyright law allows for the prevailing party to recover 'fees' from the losing party. On October 29th, 2009, VTW moved for fees. An award in favor of Vermont Timber Works would allow VTW to collect from Timberpeg the money it spent on legal fees. Not included are the costs of expert witnesses, and the time that VTW employees spent on the case in-house.
VTW won fees at the district court level before, but the 1st Circuit Court of Appeals in Boston overturned the award when it found that a timber frame could infringe on an architectural work. The case was then sent back to the district court for review and trial. Now that VTW has won a jury decision, we can move for fees again. Timberpeg has 30 days to respond and either party can appeal the final decision from the district court, so this case is far from over.
VTW won fees at the district court level before, but the 1st Circuit Court of Appeals in Boston overturned the award when it found that a timber frame could infringe on an architectural work. The case was then sent back to the district court for review and trial. Now that VTW has won a jury decision, we can move for fees again. Timberpeg has 30 days to respond and either party can appeal the final decision from the district court, so this case is far from over.
Tuesday, October 6, 2009
Complaint and Summons
On October 23, 2003, T-Peg and Timberpeg East filed suit in federal court against Vermont Timber Works alleging an architectural copyright infringement, unjust enrichment, unfair competition, and New Hampshire Consumer Protection Act violations in this public Complaint and Summons. In 2004, after depositions T-Peg and Timberpeg East moved to amend the case to sue me personally. Since then, and until winning the case in 2009, my house and livelihood were literally on the line. Legal expenses grew to unbelievable levels, over 200 public documents were filed in the case and I spent countless nights reviewing filings and not sleeping. All the while knowing that I did not copy Timberpeg's architectural work as T-Peg alleged.
Every count, except the architectural copyright infringement, was dismissed or not pursued early on. Eventually, six years later, VTW and I won the last and final charge of copyright infringement. A jury of 8 people found that VTW and I did not copy T-Peg's architectural work.
Every count, except the architectural copyright infringement, was dismissed or not pursued early on. Eventually, six years later, VTW and I won the last and final charge of copyright infringement. A jury of 8 people found that VTW and I did not copy T-Peg's architectural work.
Sunday, September 27, 2009
Plaintiff's Burden of Proof
In an architectural copyright trial, it is up to the plaintiff to prove, by a preponderance of the evidence, that the defendant infringed on their architectural work. Judge McAuliffe likened the determination to a set of scales in his jury instructions, and I love the passage:
"A preponderance of the evidence simply means that quantity and
quality of evidence necessary to persuade you that a party's
claim is more likely true than not true. Think of a set of
scales. At the beginning of the trial they are perfectly
balanced and even. At the end of the trial, if they have been
tilted by the evidence ever so slightly toward the plaintiffs,
then they have met their burden. On the other hand, if the
scales remain even, or if they tip ever so slightly in the
defendants' favor, then the plaintiffs have not met their burden."
"A preponderance of the evidence simply means that quantity and
quality of evidence necessary to persuade you that a party's
claim is more likely true than not true. Think of a set of
scales. At the beginning of the trial they are perfectly
balanced and even. At the end of the trial, if they have been
tilted by the evidence ever so slightly toward the plaintiffs,
then they have met their burden. On the other hand, if the
scales remain even, or if they tip ever so slightly in the
defendants' favor, then the plaintiffs have not met their burden."
Access
One way a jury can infer that there was actual copying is to find 'access' to the infringed work. If there is no access, there is no copying. We maintained (and still do) that we never saw the registered Timberpeg plans. However, it is accepted legal theory that if a common third party - in our case Isbitski (the owner) - had access to the plans then the jury may, but not necessarily, find that the defendant had access. See page 12 of the jury instructions:
"You may impute access when there is evidence that a third party
with whom both the plaintiff and defendant were dealing had
possession of plaintiff's work and the plaintiff and defendant's
dealings took place concurrently."
Timberpeg claimed that access was proved by statements made by our previous attorneys in the case through these two letters: Letter #1 and Letter #2, because Isbitski brought early preliminary plans to our office and we looked at them, which the lawyers said in the letters. In my mind, however, it would be a stretch to say that the plans we saw early on were the registered plans.
"You may impute access when there is evidence that a third party
with whom both the plaintiff and defendant were dealing had
possession of plaintiff's work and the plaintiff and defendant's
dealings took place concurrently."
Timberpeg claimed that access was proved by statements made by our previous attorneys in the case through these two letters: Letter #1 and Letter #2, because Isbitski brought early preliminary plans to our office and we looked at them, which the lawyers said in the letters. In my mind, however, it would be a stretch to say that the plans we saw early on were the registered plans.
Three Criteria for Copying
In order for a plaintiff to prove copying, three criteria must be met:
First, that the plaintiff owns a valid copyright in the
architectural work it accuses defendants of having
copied.
Second, that the defendant actually copied that architectural
work.
Third, that the defendants' copying of the
architectural work was so extensive that it rendered
the defendants' work and the copyrighted work substantially
similar.
Without all three elements, the claim fails.
In our case, the first criteria was met - the judge ruled that T-Peg held a valid copyright, even though we argued that the saltbox design had been around since the 1600's or earlier: See the Doe Garrison House. The fact that Doe Garrison was so similar in size and shape to the T-Peg design would not be allowed by the court because we had no evidence that T-Peg had ever seen the photographs of it. Oddly enough, in copyright law, a design is original if someone creates it on their own even if a substantially similar design already exists that they have not seen.
We also brought up problems with the copyright registration and the unsigned contract that transferred ownership between the Timberpeg family of companies.
In the second and third cases, actual copying and substantial similarity, the jury found for Vermont Timber Works.
First, that the plaintiff owns a valid copyright in the
architectural work it accuses defendants of having
copied.
Second, that the defendant actually copied that architectural
work.
Third, that the defendants' copying of the
architectural work was so extensive that it rendered
the defendants' work and the copyrighted work substantially
similar.
Without all three elements, the claim fails.
In our case, the first criteria was met - the judge ruled that T-Peg held a valid copyright, even though we argued that the saltbox design had been around since the 1600's or earlier: See the Doe Garrison House. The fact that Doe Garrison was so similar in size and shape to the T-Peg design would not be allowed by the court because we had no evidence that T-Peg had ever seen the photographs of it. Oddly enough, in copyright law, a design is original if someone creates it on their own even if a substantially similar design already exists that they have not seen.
We also brought up problems with the copyright registration and the unsigned contract that transferred ownership between the Timberpeg family of companies.
In the second and third cases, actual copying and substantial similarity, the jury found for Vermont Timber Works.
A Great Attorney
A great attorney in copyright law is Ned Whittington in Hanover, New Hampshire. He believed us from the start and defended us vehemently throughout the case. We made a great team. He knew the law inside and out and argued the case with integrity and skill. The VTW team and I are expert on timber frame design, drafting and construction and gave Ned critical design information to work from.
Substantially Similar?
This case hinged on differences vs similarities in the design. It was established early on that Timberpeg drew floor plans and elevations without a timber frame design, and that Vermont Timber Works drew and constructed only a timber frame. The district court in New Hampshire awarded summary judgment in 2005 for Vermont Timber Works, finding essentially that a timber frame alone, with many differences including 25 of 27 post differences, could not infringe on Timberpeg's architectural plans. The 1st Circuit Court in Boston disagreed, and found that a timber frame could infringe on architectural plans. The case was remanded to the district court to be decided by a jury. Due to genuine issues of fact, the Circuit Court found that T-Peg must be given an opportunity to settle the disputes before a jury. It would be up to the jury to decide if the VTW timber frame and Timberpeg's architectural work were substantially similar and if VTW had copied the architectural work.
In the trial, the case revolved around Timberpeg's Demonstrative, and VTW's Demonstrative. Timberpeg contended that because VTW's frame fit within the Timberpeg saltbox design, it was substantially similar to T-Peg's architectural work. Vermont Timber Works contended that because the frames were so different (the t-peg windows didn't fit, the posts were different and the entire timber frame was of a different design) that the VTW design was not a copy of the T-peg work. T-Peg argued that the differences were slight, VTW argued that the differences were substantial. The jury agreed with VTW and found that Vermont Timber Works and Douglas Friant did not copy the Timberpeg design.
In the trial, the case revolved around Timberpeg's Demonstrative, and VTW's Demonstrative. Timberpeg contended that because VTW's frame fit within the Timberpeg saltbox design, it was substantially similar to T-Peg's architectural work. Vermont Timber Works contended that because the frames were so different (the t-peg windows didn't fit, the posts were different and the entire timber frame was of a different design) that the VTW design was not a copy of the T-peg work. T-Peg argued that the differences were slight, VTW argued that the differences were substantial. The jury agreed with VTW and found that Vermont Timber Works and Douglas Friant did not copy the Timberpeg design.
The Best Protection
The best way to avoid being sued by a design/build firm is to never look at any plans that they have produced. We follow that procedure in our office. Unfortunately, we did look at preliminary (unregistered) Timberpeg plans associated with the lawsuit, and even though we did not copy them, we paid dearly for the mistake. Any T-Peg plans should be politely returned to the customer without having been opened.
The Architectural Copyright law is interesting. The bar for originality in architectural design is very low. For instance, if someone designs a box of a certain dimension and copyrights it, then they own the exclusive rights to that box and can sue anyone who looks at their box then designs one like it. However, if the person they try to sue has never seen the plans for the box, and designs the same box on their own, they are not liable because they never had access to the plans.
Also, once a plan has been copyrighted, the owner of the copyright owns all the original material in the plan, so changing one or two things is not enough to avoid a copyright lawsuit. The subsequent plan must not be substantially similar to the original design.
The jury instructions in our case do a very good job describing what infringes and what does not.
The Architectural Copyright law is interesting. The bar for originality in architectural design is very low. For instance, if someone designs a box of a certain dimension and copyrights it, then they own the exclusive rights to that box and can sue anyone who looks at their box then designs one like it. However, if the person they try to sue has never seen the plans for the box, and designs the same box on their own, they are not liable because they never had access to the plans.
Also, once a plan has been copyrighted, the owner of the copyright owns all the original material in the plan, so changing one or two things is not enough to avoid a copyright lawsuit. The subsequent plan must not be substantially similar to the original design.
The jury instructions in our case do a very good job describing what infringes and what does not.
Timberpeg Design Agreement
Timberpeg has a legal document, Deposit Agreement for Timberpeg Preliminary Plans and Drawings(Exhibit 18 in our trial), which our common customer, Stan Isbitski, signed when he asked Timberpeg to develop drawings for his house. The agreement, under paragraph '5' stipulated that: "The customer agrees that all rights of ownership, including copyright, to the design will become the exclusive property of the Company [Timberpeg]......." effectively transferring (in my opinion) all of the customer's own ideas for his dream home to Timberpeg and giving T-Peg the right to sue the customer for copyright infringement when he took his ideas to a competing company.
The Lawsuit
In 2003 Timberpeg East, Inc. and T-Peg, Inc. sued Vermont Timber Works, Inc. for a copyright violation regarding the Architectural Works Copyright Protection Act. Later, they sued me personally. From the start of the case until now I maintained that I, and Vermont Timber Works, did not copy Timberpeg's architectural work. On September 23, 2009, after six years of a relentless legal fight and hundreds of thousands of dollars in legal fees, a jury of 8 people agreed with me, and found in favor of me, and Vermont Timber Works, Inc.
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