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."
Sunday, September 27, 2009
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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