United States District Court, W.D. Missouri, Central Division
C. WIMES UNITED STATES DISTRICT COURT JUDGE
the Court is Defendants' Motion for Summary Judgment
(Doc. #72). The Court, being duly advised of the premises,
grants Defendants' motion.
4, 2018, Plaintiffs Designworks Homes, Inc., a design and
build company, and Charles Lawrence James, Designworks'
sole shareholder (collectively “Designworks”)
filed the above-captioned matter against Defendants Columbia
House of Brokers Realty, Inc., Shannon L. O'Brien, Nicole
Waldschlager, Deborah Ann Fisher, Jacqueline Bulgin, Carol S.
Denninghoff, and John Doe 1. Defendant House of Brokers
Realty is a real estate licensee and/or broker hired by a
non-party to sell a residence located at 1713 Kenilworth,
Columbia, Missouri. The individual defendants are real estate
agents associated with the House of Brokers and involved in
the listing and/or marketing for the sale of 1713 Kenilworth.
1996, Designworks constructed a home located at 4306 Melrose,
Columbia, Missouri. The home at this address is configured
using an original expression referred to as “triangular
atrium design with stairs” (hereinafter, “the
Design”). Designworks would use the Design in at least
four other subsequent home builds, including in the 1999
construction of a home located at 1713 Kenilworth.
February 2017, the owner of 1713 Kenilworth hired Defendants
to list and market 1713 Kenilworth for sale. As part of
Defendants' attempt to sell the home, Defendants hired a
third party to measure the interior of 1713 Kenilworth and
create a drawing of the structure's floorplan.
(“the Floorplan”). Defendants caused the
Floorplan to be published in connection with Defendants'
attempts to sell 1713 Kenilworth between February and July
claims against Defendants arise from the Floorplan, which
Designworks alleges violates the Copyright Act of 1976, 17
U.S.C. § 501(a) and the Visual Artists Rights Act of
1990, 17 U.S.C. § 106A (“VARA”).
alleges the following claims based on their rights in the
Design and Defendants' creation of the Floorplan: (I)
copyright infringement; (II) contributory infringement; (III)
vicarious infringement; and (IV) violation of VARA.
is entitled to summary judgment if there is no genuine issue
of material fact and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56; Rafos v. Outboard
Marine Corp., 1 F.3d 707, 708 (8th Cir. 1993) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986)). The moving party bears the burden to establish both
the lack of any genuine issue of material fact and an
entitlement to judgment as a matter of law. Celotex,
477 U.S. at 323. In applying this burden, the Court affords
to the non-moving party the benefit of all reasonable factual
inferences. Mirax Chem. Prods. Corp. v. First Interstate
Commercial Corp., 950 F.2d 566, 569 (8th Cir. 1991)).
1996, Designworks designed and constructed a home at 4306
Melrose in Columbia, Missouri. The home design is configured
and described as a “triangular atrium design with
stairs” (hereinafter, “the Design”).
Between 1996 and 2001, Designworks used the Design in at
least 4 other residential builds.
1999, Designworks designed and constructed a home, using the
Design, at 1713 Kenilworth in Columbia, Missouri. The
completed structure at this location is visible from a public
2004, Designworks applied for and received a copyright
registration for a house in which it used the Design located
at 4804 Chilton Court, Columbia, Missouri. The copyright
application was titled “Atrium ranch on walk out;
Angular atrium ranch.” The registration number for this
copyright for “Architectural work, ” effective
May 10, 2004, is VAu 623-402. (“Registration C”).
The deposit materials for Registration C are photographs of
the exterior and interior structure at 4804 Chilton and
2013, Designworks applied for and received a copyright
registration for an architectural work that used the Design.
The copyright application was titled “2, 187SF.”
The registration number for this copyright for an
architectural work, effective June 6, 2013, is VAu
1-133-136. (“Registration U”). The
architectural work for Registration U was never built. The
deposit materials for Registration U are drawings.
February 23, 2017, Defendants listed the home at 1713
Kenilworth for $465, 000.00. Defendant House of Brokers was
the designated broker for the 1713 Kenilworth and the real
estate agents for the listing were Jackie Bulgin, Shannon
O'Brien, and Debbie Fisher.
February 15, 2017, Sphero Tours / Shawn Ames
(“Sphero”) sent an invoice to Defendant House of
Brokers, care of Jackie Bulgin, for Sphero's work
measuring the interior dimensions and creating a computer
aided design drawing of the interior of 1713
February 23, 2017, Defendant Jackie Bulgin completed a
Residential Property Data Entry Form, MLS #308591, for 1713
Kenilworth in the Flexmls/MLS system. Bulgin selected the
option to export the listing for 1713 Kenilworth to all
available options, including Realtor.com, Supra, Zillow, and
Homes.com. Pursuant to Bulgin's authorization on the MLS,
the Floorplan was distributed to Realtor.com, where
Designworks discovered it. Defendants marketed 1713
Kenilworth using the Floorplan from February 2017 to July
2017. The house did not sell during that time period.
April 2018, Designworks registered copyrights in the
technical drawings for 4306 Melrose and for 1713 Kenilworth.
The copyright application for 1713 Kenilworth was titled
“1713 Kenilworth / Heritage Meadows.” The
registration number for this copyright for a work of visual
art is VAu 1-329-938, with a year of completion of
1999. (“Registration K”). The
deposit materials for Registration K are drawings. In
contrast with Registration C and Registration U, which are
both registered as architectural works, Registration K is
registered as a technical drawing and a work of visual art.
motion for summary judgment argues there is no genuine issue
of material fact and it is entitled to judgment as a matter
of law on each of Designworks' four claims relating to
Defendants are entitled to summary judgment on
Designworks' claim for copyright infringement alleged in
Congress shall have Power . . . to Promote the Progress of
Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective
writings and Discoveries.” Harper & Row
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546
(1985) (citing U.S. Const. art. I, § 8).
Copyright Act protects “original works of authorship
fixed in any tangible medium of expression . . . .” 17
U.S.C. § 102(a). The Copyright Act confers upon the
owner of a copyright “a bundle of exclusive rights . .
. .” Harper, 471 U.S. at 546 (citing 17 U.S.C.
§ 106). “[T]hese rights - to publish, copy, and
distribute the author's work - vest in the author of an
original work from the time of its creation.”
rights, however, apply only to a work's aspects that are
independently created and have some degree of creativity.
Feist Publns, Inc. v. Rural Tel. Serv. Co., Inc.,
499 U.S. 340, 345 (1991). Copyright protection does not cover
“any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of
the form in which it is described, explained, illustrated, or
embodied in such work.” 17 U.S.C. § 102(b).
a prima facie case for copyright infringement, a plaintiff
must prove: (1) ownership of a valid copyright in the work
allegedly infringed; and (2) the defendant copied, displayed,
or distributed protected elements of the copyrighted work
without authorization. Taylor Corp. v. Four Seasons
Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir. 2003)
(citing Moore v. Columbia Pictures Indus., Inc., 972
F.2d 939, 941 (8th Cir. 1992) (citing Feist, 499
U.S. at 361 (“The establish infringement, two elements
must be proven: (1) ownership of a valid copyright, and (2)
copying of constituent elements of the work that are
Defendants are entitled to summary judgment on Count I for
Registration C and Registration U.
Court of Appeals for the Eighth Circuit has observed the
infringement element “[t]ypically . . . cannot be
proven directly.” Moore, 972 F.2d at 941.
“Therefore, copying can be established by demonstration
of access (by the alleged infringer) and substantial
similarity (between the works at issue.).” Id.
plaintiff alleging infringement can establish the access
requirement of the infringement element “by showing
that the defendants had an opportunity to view or to copy his
work.” Id. at 942 (citing Sid & Mary
Krofft Television Prods., Inc. v. McDonald's Corp.,
562 F.2d 1157, 1172 (9th Cir. 1977)). A “bare
possibility of access” is insufficient; rather, a
plaintiff “must prove that the defendants had a
‘reasonable possibility' of viewing his
work.” Id. (citing Ferguson v. Natl'
Broad., Co., 54 F.2d 111, 113 (5th Cir. 1978)).
the uncontroverted facts of this case, Designworks has
copyrights in Registration C and in Registration U.
Registration C is for an architectural work and has
underlying deposit materials of structural photographs of
4804 Chilton, which uses the Design, and construction
drawings. Registration U is also for an architectural work,
albeit one that was never built, and its deposit materials
consist of construction drawings.
respect to Registration U, there exists no genuine issue of
material fact that the structure, based on construction
drawings making up Registration U's deposit materials,
was never built. Because the structure was never built,
Designworks cannot show that Defendants had “a
reasonable possibility” of viewing the structure based
on construction drawings underlying Registration U.
Additionally, there is no basis in the record for the
conclusion that Defendants otherwise had an opportunity to
view Designworks' drawings at all.
assuming, without deciding, that Designworks can prove the
other elements of copyright infringement with respect to
Registration U, and even with all reasonable inferences drawn
in Designworks' favor, the record does not establish
Defendants had access to Designworks' copyrighted work.
Defendants are entitled to summary judgment on Count I with
respect to Registration U.
with respect to Registration C, there exists no genuine issue
of material fact that Defendants never had a
“reasonable possibility” of viewing
Designworks' construction drawings, nor the interior of
4804 Chilton. Consequently, the record presents no basis for
the conclusion that Defendants ever viewed the drawings or
the structure underlying Registration C. Therefore, assuming,
without deciding, the record demonstrates the other elements
of a claim of ...