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.
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