In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-2716 

DESIGN BASICS, LLC, and 

CARMICHAEL & DAME DESIGNS, INC., 

Plaintiffs-Appellants, 

v.

SIGNATURE CONSTRUCTION, INC., et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court 

for the Central District of Illinois. 

No. 1:16-CV-1275 — Colin S. Bruce, Judge. 

____________________ 

ARGUED JANUARY 22, 2020 — DECIDED APRIL 23, 2021 

____________________ 

Before SYKES, Chief Judge, and WOOD and HAMILTON,

Circuit Judges. 

SYKES, Chief Judge. Copyright law strikes a practical 

balance between the intellectual-property rights of authors 

and the public interest in preserving the free flow of ideas 

and information and encouraging creative expression, all in 

furtherance of the constitutional purpose to “promote the 

Progress of Science and useful Arts.” U.S. CONST. art. 1, § 8, 

cl. 8; see generally Google LLC v. Oracle Am., Inc., 141 S. Ct. 
2 No. 19-2716 

1183, 1195 (2021). Copyright trolls—opportunistic holders of 

registered copyrights whose business models center on 

litigation rather than creative expression—disrupt this 

balance by inhibiting future creativity with negligible societal benefit. “Like the proverbial troll under the bridge, these 

firms try to extract rents from market participants who must 

choose between the cost of settlement and the costs and risks 

of litigation.” Design Basics, LLC v. Lexington Homes, Inc., 

858 F.3d 1093, 1097 (7th Cir. 2017). 

Plaintiff Design Basics, LLC, is a copyright troll. Id. at 

1096–97. The firm holds registered copyrights in thousands 

of floor plans for suburban, single-family tract homes, and 

its employees trawl the Internet in search of targets for 

strategic infringement suits of questionable merit. The goal 

is to secure “prompt settlements with defendants who 

would prefer to pay modest or nuisance settlements rather 

than be tied up in expensive litigation.” Id. at 1097. As we 

explained in Lexington Homes, “[t]his business strategy is far 

removed from the goals of the Constitution’s intellectual 

property clause.” Id. Instead, it amounts to an “intellectual 

property shakedown.” Id. at 1096. 

This appeal involves yet another Design Basics infringement action, one of more than 100 such suits in the last 

decade or so. Id. at 1097. When Design Basics was last before 

this court in Lexington Homes, we were guided by two wellestablished copyright doctrines—scènes à faire and merger—

that constrain the ability of infringement plaintiffs to claim 

expansive intellectual-property rights in a manner that 

impedes future creativity. Applying these doctrines, we held 

that Design Basics’ copyright in its floor plans is thin. Id. at 

1101–05. The designs consist mainly of unprotectable stock 

elements—a few bedrooms, a kitchen, a great room, etc.—
No. 19-2716 3 

and much of their content is dictated by functional considerations and existing design conventions for affordable, suburban, single-family homes. When copyright in an 

architectural work is thin, only a “strikingly similar” work 

will give rise to a possible infringement claim. Id. at 1105. 

Applying this standard, we held that no reasonable jury 

could find for Design Basics and affirmed a summary judgment against it. Id. 

This latest appeal meets the same fate. Design Basics 

sued Signature Construction, Inc., and related companies, 

accusing them of copying ten of its registered floor plans for 

suburban, single-family homes. The district court entered 

summary judgment for the defendants based largely on the 

reasoning of Lexington Homes. 

Design Basics asks us to overrule Lexington Homes. We 

decline to do so. And we take this opportunity to restate and 

clarify the elements of a prima facie case of infringement, 

both as a general matter and more particularly in cases 

involving works of this type in which copyright protection is 

thin. For this category of claims, only extremely close copying is actionable as unlawful infringement. Put more precisely, this type of claim may move forward only if the plaintiff’s 

copyrighted design and the allegedly infringing design are 

virtually identical. That standard is not satisfied here, so we 

affirm. 

I. Background 

We described Design Basics’ business strategy in 

Lexington Homes; a brief summary will suffice for present 

purposes. Design Basics holds registered copyrights in 

thousands of floor plans for suburban, single-family homes. 

Lexington Homes, 858 F.3d at 1096. The plans are not technical 
4 No. 19-2716 

construction drawings. Rather, they are basic schematic 

designs, largely conceptual in nature, and depict layouts for 

one- and two-story single-family homes that include the 

typical rooms: a kitchen, a dining area, a great room, a few 

bedrooms, bathrooms, a laundry area, a garage, stairs, 

assorted closets, etc. 

More than a decade ago, Patrick Carmichael and Myles 

Sherman bought Design Basics “as an investment opportunity.”1 Id. at 1096. Since then, litigation proceeds have become 

“a principal revenue stream” for the firm. Id. at 1097. Indeed, 

Design Basics incentivizes its employees to search the Internet for litigation targets by paying a finder’s fee—a percentage of net recovery—if they locate a prospective 

infringement defendant. This is the core of the firm’s business model. Id.

The firm maintains an easily accessible website displaying 2,847 floor plans. It also regularly sends mass mailings of 

its designs to members of the National Association of Home 

Builders. Over the years the firm has sent millions of publications containing its floor plans to home builders. When it 

initiates litigation, it hopes—indeed, expects—to find these 

designs in the defendant’s files. 

This case has its genesis in that business model. In 2014 

Paul Foresman, Director of Business Development at Design 

Basics, emailed Carmichael with the subject line: “A gift for 

you.” Foresman told Carmichael that by using the Internet 

Archive’s Wayback Machine, he discovered that a firm 

called “Signature Homes” may have copied some of Design 

Basics’ home designs. Carmichael was initially confused 

1 Carmichael & Dame Designs, Inc., is named as an additional plaintiff. It 

has no independent role in this litigation, so we mention it no further. 
No. 19-2716 5 

because Design Basics was already asserting infringement 

claims against a firm by that name, but Foresman clarified 

that this Signature Homes—based in Illinois—was a different 

company. Pleased with Foresman’s discovery, Carmichael 

wrote back: “Wow very nice gift my friend.” 

This infringement suit followed. In 2016 Design Basics 

sued Signature Construction and related companies,2 alleging that they infringed ten of its floor plans. During discovery, Design Basics learned that Signature’s files contained 

photocopies of four of its plans: “Ainsley,” “2461 Shawnee,” 

“2963 Columbus,” and “9169 Kempton Court.” The photocopies were found in Signature’s files for homes labeled 

“Carlisle,” “Lot 119 Lake Falls,” “Lot 63 Sommer Place,” and 

“Lot 309 Stonegate,” respectively. The photocopy of Design 

Basics’ 2461 Shawnee floor plan had red markings on it, 

indicating modifications to the plan. John Tanner, a draftsman at Signature, testified that he received the marked-up 

image from Steve Meid, a Signature partner, and understood 

that the markings were modifications that Meid wanted him 

to make. 

At the end of lengthy discovery, Signature moved for 

summary judgment, relying heavily on our ruling against 

Design Basics in Lexington Homes. As we explained in that 

opinion, under the scènes à faire and merger doctrines, 

Design Basics’ copyright protection in its floor plans is thin, 

id. at 1101–05, and therefore only a “strikingly similar” plan 

would give rise to an infringement claim, id. at 1105. Using 

2 The other corporate defendants are Signature Homebuilders, LLC; 

Signature Development of Peoria, Inc.; Signature Homes of Bloomington, 

LLC; Ironwood Homes, Inc.; and Ironwood Homes of Peoria, LLC. 

Randy Peifer, an investor in some of the Signature companies, is also a 

defendant. We refer to the defendants collectively as “Signature.” 
6 No. 19-2716 

this standard, we held that no reasonable jury could find 

infringement. Id. Along the way to this conclusion, we noted 

that Design Basics had not submitted expert testimony to 

support its claim, relying instead on a conclusory declaration 

from one of its draftsmen. Id. at 1104. 

Design Basics tried to avoid that same criticism here by 

submitting an affidavit from a third-party expert in opposition to Signature’s summary-judgment motion. The witness, 

Matthew McNicholas, is an architect and has served as an 

outside expert for Design Basics in at least 13 lawsuits. 

McNicholas asserted that Signature “unquestionably infringed” Design Basics’ home plans. 

To support that opinion, McNicholas produced a 

103-page report. The first 30 pages cover his qualifications 

and explain his general views on architectural copyright 

law. Pages 32–85 are descriptions of the ten copyrighted 

floor plans at issue in this case. This section of his report 

contains narrative descriptions of the features of each Design 

Basics floor plan, but the descriptions are remarkably similar 

to one another. Indeed, some parts are almost word-forword identical. 

A few examples will illustrate. For the Design Basics 

floor plan called “The Linden,” McNicholas wrote: “The idea 

behind the plan of The Linden focuses on creating a home 

for entertaining guests, and whose spaces are flexible 

enough to meet the needs of a broad range of potential 

homeowner[s].” One of the features he analyzed is the front 

door: 

From the perspective of a guest, the sheltered 

front door is a welcome area, not just with the 

covered stoop, but also composed with walls to 
No. 19-2716 7 

either side of the entry, which shelter against 

wind and driving rain. This consideration for 

waiting guests reinforces the entertainment 

value of this design decision. 

His description of the floor plan called “The Manning” is 

similarly generic: “The concept driving the plan of the 

Manning centers around creating a home focused on entertainment, but with enough flexibility to evolve into multiple 

solutions as the homeowner needs, while maximizing 

privacy.” Again, McNicholas described the front door: 

From the perspective of a guest, the sheltered 

front door is a welcome area, not just with the 

covered stoop, but also arranged with the long 

wall of the Living Room as a shelter against 

driving wind and rain, while waiting for the 

door to open. This consideration for waiting 

guests reinforces the entertainment value of 

this design decision. 

His analysis of “The Paterson” is likewise almost identical: “The idea behind the plan of The Paterson focuses on 

creating a home for entertaining guests, and whose spaces 

are flexible enough to meet the needs of a broad range of 

potential homeowner[s].” Regarding the front door, 

McNicholas wrote: 

From the perspective of a guest, the sheltered 

front door is not just a welcome area, but with 

walls to either side of the entry—which shelter 

against wind and driving rain—it is a considerate space. Further, the sidelight at the door 

allows for transparency between the interior 

and exterior, and this thoughtfulness for wait-
8 No. 19-2716 

ing guests reinforces the entertainment value 

of this design decision. 

In short, the McNicholas report purports to separately 

analyze the distinguishing features of each of the copyrighted plans at issue here, but the descriptions are so ordinary 

and interchangeable as to be virtually meaningless. 

The McNicholas report ends with a visual section containing side-by-side comparisons of the Signature floor plans 

and the Design Basics plans they are alleged to infringe. As 

the district judge described this section of the report, the 

expert “employed extensive color-filling” to depict parallel 

rooms in the copyrighted and accused plans in matching 

colors in an effort “to make the plans seem more similar.” 

The judge rejected this technique as an attempt “to manipulate and enhance the appearance of similarity.” To control 

for this problem, the judge extracted the line drawings from 

the plans without the color-filling enhancements and confined his analysis accordingly. 

Comparing the unenhanced drawings, the judge determined as a matter of law that no unlawful copying occurred. 

He noted multiple categories of dissimilarity between the 

copyrighted and accused plans: 

Room dimensions are different. Some plans 

have more rooms than the plans they are alleged to infringe. Ceilings are of different 

heights, and/or are of different styles (i.e., cathedral versus flat versus tray). Exterior dimensions are different. Bathrooms are in 

different locations. Sinks, tubs, toilets, and 

showers are in different locations within bathrooms. Garages are of different sizes and/or are 
No. 19-2716 9 

in a different orientation to the rest of the 

house. 

Based on these observations and applying Lexington Homes, 

the judge had no difficulty concluding that Signature’s plans 

“are dissimilar enough to avoid infringing the thin copyright” in the Design Basics plans. The judge entered final 

judgment for Signature, and Design Basics appealed. 

II. Discussion 

A. Proving Copyright Infringement 

“Copyright and patents, the Constitution says, are 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.’” Google,

141 S. Ct. at 1195 (quoting U.S. CONST. art. I, § 8, cl. 8). To 

that end, the Copyright Act, 17 U.S.C. §§ 101 et seq., establishes the prerequisites for copyright and sets limits on its 

scope. Google, 141 S. Ct. at 1195–96 (explaining that Congress 

weighs “the advantages and disadvantages” of copyright 

protection and establishes “its boundaries and conditions, 

the existence of exceptions and exemptions, all by exercising 

its own constitutional power to write a copyright statute”). 

The basic prerequisites are these: “Copyright protection 

subsists ... in original works of authorship fixed in any 

tangible medium of expression ... .” 17 U.S.C. § 102(a). 

“Originality is a constitutional requirement” arising by 

implication from the Constitution’s reference to “authors” 

and “writings.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

499 U.S. 340, 346 (1991). The threshold for originality is low: 

“Original, as the term is used in copyright, means only that 

the work was independently created by the author (as 

opposed to copied from other works), and that it possesses 
10 No. 19-2716 

at least some minimal degree of creativity.” Id. at 345 (citing 

1 MELVILLE B. NIMMER AND DAVID NIMMER, NIMMER ON 

COPYRIGHT § 2.01[A], [B] (1990)). 

The Act lists categories of works that qualify for copyright protection, including “literary works,” “musical 

works,” “dramatic works,” and “pictorial, graphic, and 

sculptural works,” among others. § 102(a)(1), (2), (3), (5). 

“Architectural plans” and “technical drawings” are included 

in the statutory definition of “pictorial, graphic, and sculptural works” and can be copyrighted in this category. § 101. 

Until 1990, however, architectural works were not included 

in § 102(a) as a stand-alone category of protected works. 

That left some uncertainty about the status of constructed 

designs—i.e., the buildings themselves—among other 

complexities in this corner of copyright law. 1 NIMMER ON 

COPYRIGHT § 2A.09[A] (Rev. ed. 2020); 2 WILLIAM F. PATRY,

PATRY ON COPYRIGHT § 3:101–3:107, Westlaw (database 

updated March 2021). 

In 1990 Congress amended the Act to create a separate 

category of “architectural works” in the § 102(a) list, implementing our nation’s obligations under the Berne Convention for the Protection of Literary and Artistic Works. See

Architectural Works Copyright Protection Act, Pub. L. No. 

101-650, §§ 701–706, 104 Stat. 5133 (1990) (codified at 

17 U.S.C. § 102(a)(8)). The 1990 legislation added the following definition for the new statutory term “architectural 

work”: 

An “architectural work” is the design of a 

building as embodied in any tangible medium 

of expression, including a building, architectural plans, or drawings. The work includes 

the overall form as well as the arrangement 
No. 19-2716 11 

and composition of spaces and elements in the 

design, but does not include individual standard features. 

Id. § 702 (codified at 17 U.S.C. § 101). 

Importantly, the Act limits the scope of copyright protection even for “works that the definitional provisions might 

otherwise include.” Google, 141 S. Ct. at 1196. One prominent 

limitation captures the traditional copyright principle 

known as the “idea/expression dichotomy”—the line that 

separates copyrightable expression from noncopyrightable 

ideas and facts. Golan v. Holder, 565 U.S. 302, 328 (2012). 

Section 102(b) codifies this principle: “In no case does copyright protection for an original work of authorship extend to 

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.” 

The Act creates a cause of action for infringement and 

provides as a general matter that “[a]nyone who violates any 

of the exclusive [statutory] rights of the copyright owner ... 

is an infringer.” 17 U.S.C. § 501(a); see also id. § 501(b) 

(providing a cause of action). This generalization doesn’t 

shed much light on what it takes to prove a claim, but the 

courts have developed and explained the plaintiff’s burden 

of proof. The doctrine begins with this statement from the 

Supreme Court: “To establish infringement, two elements 

must be proven: (1) ownership of a valid copyright, and 

(2) copying of constituent elements of the work that are 

original.” Feist, 499 U.S. at 361. This concise formulation 

obscures a good deal of complexity beneath the surface, but 

it provides a basic framework for the claim. 
12 No. 19-2716 

The first element—ownership of a valid copyright—is 

not contested here. Design Basics registered its floor plans 

with the United States Copyright Office, and Signature does 

not dispute its ownership or the validity of the copyrights. 

We therefore assume, as we did in Lexington Homes, “that 

Design Basics owns the plans and that the plans are entitled 

to some copyright protection, i.e., they were created independently and possess a modicum of creativity” to satisfy 

the minimal originality requirement. 858 F.3d at 1099. 

This litigation turns on the second element, as many infringement cases do. At this step of the general framework, 

the plaintiff must prove that the defendant “cop[ied] ... 

constituent elements of the [copyrighted] work that are 

original.” Feist, 499 U.S. at 361. This element actually encompasses two distinct questions, although our caselaw 

hasn’t always neatly separated them. The first question is 

whether, as a factual matter, the defendant copied the 

plaintiff’s protected work (as opposed to independently 

creating a similar work); the second question is whether the 

copying “went so far as to constitute an improper appropriation.” Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 

672 F.2d 607, 614 (7th Cir. 1982); see also 4 NIMMER ON 

COPYRIGHT § 13.01[B] (Rev. ed. 2020) (explaining the two 

components of the second element in the Feist framework). 

The Ninth Circuit refers to these distinct subsidiary elements as “copying” and “unlawful appropriation.” 

Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018). 

The Second Circuit uses the terms “copying” and “wrongful 

copying.” Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 100 

(2d Cir. 2014). Whatever the nomenclature, the point is to 

capture the important differences between the two. 
No. 19-2716 13 

In all infringement cases, the plaintiff must prove, as a 

factual matter, that the defendant actually copied his work. 

Lexington Homes, 858 F.3d at 1099. “Proof of copying by the 

defendant is necessary because independent creation is a 

complete defense to copyright infringement.” Rentmeester,

883 F.3d at 1117. For “[n]o matter how similar the plaintiff’s 

and the defendant’s works are, if the defendant created his 

independently, without knowledge of or exposure to the 

plaintiff’s work, the defendant is not liable for infringement.” Id.

Importantly, proof of actual copying is necessary but not 

sufficient to establish liability for infringement. “Not all 

copying ... is copyright infringement,” Feist, 499 U.S. at 361, 

so the plaintiff must also prove that the defendant’s copying 

was wrongful—i.e., that the defendant took enough of his 

protected expression (as opposed to unprotectable ideas, 

concepts, facts, etc.) to constitute unlawful appropriation of 

his expressive work. Rentmeester, 883 F.3d at 1117; Zalewski, 

754 F.3d at 100–01. 

The first of these subsidiary elements—let’s call it “actual 

copying” or “copying in fact”—can be proved either directly 

or indirectly. Direct evidence is rare, so many cases turn on 

inferences to be drawn from circumstantial evidence. A 

circumstantial case of actual copying requires: (1) evidence 

that the defendant had access to the plaintiff’s copyrighted 

work (enough to support a reasonable inference that the 

defendant had an opportunity to copy); and (2) evidence of a 

substantial similarity between the plaintiff’s work and the 

defendant’s work (enough to support a reasonable inference 

that copying in fact occurred). Lexington Homes, 858 F.3d at 

1099; see also Rentmeester, 883 F.3d at 1117; Zalewski, 754 F.3d 

at 100–01. 
14 No. 19-2716 

We have acknowledged the possibility that an accused 

work may bear such “an uncanny resemblance” to a copyrighted work that copying is “the only plausible explanation” for the similarity. Lexington Homes, 858 F.3d at 1100. In 

such a case, “further proof of access may not be required.” 

Id. But the exception is “rare” and reserved for “unusual 

cases.” Id. Ordinarily, “to prove a circumstantial case of 

copyright infringement, the plaintiff must separately prove 

both access and similarity.” Id.

Confusion sometimes arises because the test for unlawful 

appropriation—a distinct inquiry—also looks for substantial 

similarity between the defendant’s work and the plaintiff’s 

work. As the Second Circuit has explained, “a close similarity between two works is often relevant to proving both actual 

copying and wrongful copying.” Zalewski, 754 F.3d at 101 

(emphasis added). Accordingly, the cases often use “the 

same term—‘substantial similarity’—to describe both the 

degree of similarity relevant to proof of copying and the 

degree of similarity necessary to establish unlawful appropriation.” Rentmeester, 883 F.3d at 1117. But “[t]he term 

means different things in those two contexts.” Id.

The difference hinges on the distinction between the protected and unprotected elements in the plaintiff’s work. Id.; 

see also Zalewski, 754 F.3d at 101. When used as a test for 

actual copying in a circumstantial case, the requirement of 

“substantial similarity” is not limited to the protected elements of the plaintiff’s work. Similarities that relate to either 

the protected or unprotected elements of the plaintiff’s work 

may be probative of actual copying; the inquiry simply looks 

for the kind and degree of similarity that “one would not 

expect to arise if the two works had been created independently.” Rentmeester, 883 F.3d at 1117. Put somewhat 
No. 19-2716 15 

differently, in a circumstantial case, the plaintiff has the 

burden to show that the two works are so similar that copying is a better explanation for the similarities than pure 

coincidence. 

But “similarity that relates to unprotected elements is probative only of [actual] copying—not wrongful copying.” 

Zalewski, 754 F.3d at 101 (emphasis added). Wrongful copying—unlawful appropriation—requires substantial similarities between the defendant’s work and protected elements in 

the plaintiff’s copyrighted work. Rentmeester, 883 F.3d at 

1117. “When an original work contains many unprotected 

elements, ... a close similarity between it and a copy may 

prove only copying, not wrongful copying.” Zalewski, 

754 F.3d at 101. 

To preserve the distinction between these two concepts, 

we will follow the Second Circuit’s lead and use the term 

“probative similarity” to refer to the degree of similarity 

necessary to support an inference of actual copying and the 

term “substantial similarity” to refer to the test for wrongful 

copying or unlawful appropriation. Id.

Our circuit, like most others, uses the “ordinary observer” test for unlawful appropriation: “whether the accused 

work is so similar to the plaintiff’s work that an ordinary 

reasonable person would conclude that the defendant 

unlawfully appropriated the plaintiff’s protect[a]ble expression by taking material of substance and value.” Wildlife 

Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 508–09 

(7th Cir. 1994) (quoting Atari, 672 F.2d at 614).3

3 See also Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 33–34 

(1st Cir. 2001); Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir. 

2000); Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 120 (8th Cir. 1987); 
16 No. 19-2716 

B. Scènes à Faire and Merger 

In Lexington Homes we explained at length that under the 

scènes à faire and merger doctrines, Design Basics holds only 

thin copyright protection in its floor plans. Just a brief recap 

is needed here. 

Standard elements in a genre—called scènes à faire4 in 

copyright law—get no copyright protection. Scènes à faire are 

“so rudimentary, commonplace, standard, or unavoidable 

that they do not serve to distinguish one work within a class 

of works from another.” Bucklew v. Hawkins, Ash, Baptie & 

Co., 329 F.3d 923, 929 (7th Cir. 2003). If standard elements 

received copyright protection, then the creation of a single 

work in a genre would prevent others from contributing to 

that genre because the copyright owner would have exclusive rights in all of the genre’s basic elements. 

We explained in Lexington Homes that Design Basics’ 

floor plans largely consist of scènes à faire. 858 F.3d at 1102–

03. Every plan has a kitchen, a great room or living room, a 

dining room, bedrooms, bathrooms, and so forth. The arrangements of the rooms are also largely scènes à faire. The 

kitchen is always close to the dining room; the bedrooms 

will usually be clumped together and near a bathroom; the 

door from the garage into the house usually leads to the 

kitchen rather than the great room or living room. 

What accounts for these familiar arrangements? Convention in this genre, certainly, which brings this particular type 

Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir. 1975); 

Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946). 

4 French for “scenes for action.” Scènes à faire, BLACK’S LAW DICTIONARY

(11th ed. 2019). 
No. 19-2716 17 

of architectural work within the scènes à faire doctrine.5 But 

the arrangements are also dictated by functionality. The 

kitchen is near the dining room so that food can easily be 

moved between the two rooms. The bedrooms aren’t near 

the front hall because guests don’t venture into the bedrooms.

The functionality of the room arrangements is where the 

doctrine of merger comes in. Merger arises from § 102(b), 

which, as we’ve explained, codifies the idea–expression 

dichotomy and specifies that copyright never extends to an 

idea, procedure, principle, or concept. Copyright protects 

only expression; patent law is the proper instrument for 

protecting functionality. See Eldred v. Ashcroft, 537 U.S. 186, 

217 (2003).

Merger doctrine prevents the use of copyright to protect 

an idea or procedure. If an idea or procedure can be expressed in only a few ways, it is easy to copyright every 

form in which the idea can be expressed, indirectly protecting the idea itself. 4 NIMMER ON COPYRIGHT § 13.03[B][3]; see 

also Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678–79 

(1st Cir. 1967). To guard against this kind of overprotection, 

when an idea can be expressed in only limited ways, courts 

say that the expression “merges” into the idea and cannot 

receive copyright protection. Lexington Homes, 858 F.3d at 

1102. For example, the forms used to implement a particular 

method of accounting are an expression of the accounting 

method and cannot be copyrighted. Baker v. Selden, 101 U.S. 

99 (1879). The same is true for the rules of a sweepstakes 

competition: because there are a limited number of ways to 

5 Recall as well that under the definition of an architectural work, 

“individual standard features” are not protected. 17 U.S.C. § 101. 
18 No. 19-2716 

explain the rules, the expression of the rules receives little, if 

any, copyright protection. Morrissey, 379 F.2d at 678–79. 

Merger also applies to the Design Basics home plans. The 

functional requirements of living spaces dictate that particular rooms be placed close together. And the general concept 

of the affordable, multipurpose, suburban, single-family 

home also contributes to the design. This isn’t to say that 

there is only one way to arrange the rooms in this homedesign genre. But there are only a limited number of possible 

floor plans, and by creating more than 2,800 of these plans, 

Design Basics has attempted to occupy the entire field. We 

wondered in Lexington Homes if “there is any blueprint for a 

single-family home anywhere in the country that Design 

Basics could not match to one of its own designs.” 858 F.3d 

at 1103. If Design Basics held any more than thin copyright 

protection in its floor plans, it would own nearly the entire 

field of suburban, single-family home design. 

The McNicholas report reinforces our holding in 

Lexington Homes that the copyright in the Design Basics floor 

plans is thin. Although McNicholas set out to demonstrate 

the unique nature of the ten plans at issue here, his report 

demonstrates just the opposite. As we’ve explained, the 

report describes each floor plan in generic and often nearly 

identical language. The report shows that each floor plan 

uses the same design features to accomplish the same ends. 

Accordingly, although Design Basics asks us to revisit 

our decision in Lexington Homes, we see no reason to do so.6

6 Design Basics urges us to instead adopt the First Circuit’s approach in 

T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97 (1st Cir. 2006), which 

looked to similarities in the “overall form” of the buildings to assess 

architectural copyright infringement. Id. at 113–14. Design Basics is 

wrong to suggest that our approach differs from the First Circuit’s. 
No. 19-2716 19 

To the contrary, we reiterate our conclusion that Design 

Basics holds only thin copyright in its floor plans. Id. at 

1101–02. And in this particular architectural genre in which 

copyright protection is thin, proving unlawful appropriation 

takes more than a substantial similarity between the plaintiff’s work and the defendant’s work. Instead, only a virtually identical plan infringes the plaintiff’s copyrighted plan. 

Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007, 

1013–14 (7th Cir. 2005). 

C. Application 

We can make short work of applying these principles to 

this record. Except for the 2461 Shawnee plan, Design Basics 

has no direct evidence of actual copying. For the remaining 

nine plans, it must rely on circumstantial proof of actual 

copying, which requires evidence of both access and probative similarity. 

We can safely skip the issue of access. The district judge 

aptly observed that the Signature plans are dissimilar in 

material respects from the plans they are alleged to infringe. 

They have different room dimensions, ceiling heights and 

styles, and exterior dimensions. Some have a different 

number of rooms, and the garages are sometimes placed at 

T-Peg, like Lexington Homes, applied well-established principles of 

copyright law to the facts at hand. But the facts in T-Peg were materially 

different from this case and from Lexington Homes. The architectural 

plans at issue there were for a timber-frame home, a design driven as 

much by aesthetics as by functionality. Id. at 101. The First Circuit thus 

reasonably refrained from holding that the scènes à faire and merger 

doctrines meant that the timber-frame home plans received limited 

protection. There is no reason to think that the First Circuit would 

analyze plans for suburban, single-family tract homes any differently 

than we did in Lexington Homes. 
20 No. 19-2716 

different angles to the homes. These differences are enough 

as a matter of law to preclude an inference of actual copying. 

For the same reason, even if we assume that actual copying occurred in the case of the 2461 Shawnee floor plan, no 

reasonable jury could find unlawful appropriation. 

Signature’s Lot 119 Lake Falls floor plan is not virtually 

identical to the 2461 Shawnee. Though both designs depict a 

one-story ranch with a kitchen, breakfast room, great room, 

dining room, three bedrooms, and two bathrooms in the 

same general locations, see Appendix, the Signature plan is 

different from the 2461 Shawnee in some notable ways. It 

has greater square footage, and the room dimensions are 

subtly different. The ceilings have different heights, and the 

two homes have different aspect ratios. The 2461 Shawnee 

has a two-car garage and its walls are parallel to the home, 

while the Lot 119 Lake Falls plan features a three-car garage 

placed at an angle to the rest of the home. Although most of 

the rooms are located in the same relative positions, some 

are not: where the 2461 Shawnee plan places a bathroom, the 

Lot 119 Lake Falls plan has a walk-in closet. 

In a field unconstrained by convention and functionality, 

the similarity of the overall layouts of the two floor plans 

would be noticeable. But suburban, single-family housing is 

a field with many standard elements and limited possibilities for creativity, so the Lot 119 Lake Falls plan must be 

virtually identical to the 2461 Shawnee to infringe Design 

Basics’ thin copyright. Under this standard, Signature’s plan 

is noninfringing as a matter of law. 

Finally, we note for completeness that we find no flaw in 

the district judge’s conclusion that Signature’s plans are 

dissimilar enough to preclude liability even under ordinary 

substantial-similarity analysis. As we explained when 
No. 19-2716 21 

discussing probative similarity, each Signature plan features 

different room dimensions, ceiling styles and heights, and 

exterior dimensions than the Design Basics plan it is alleged 

to infringe. The number and placement of rooms is sometimes different, as is the size and (in some cases) the location 

of the garage. Accordingly, the judge correctly concluded 

that the Signature plans are noninfringing under conventional substantial-similarity analysis; the plans are certainly 

not virtually identical to the Design Basics plans they are 

alleged to infringe. Summary judgment for Signature was 

proper. 

AFFIRMED
22 No. 19-2716 

Appendix 

Design Basics’ 2461 Shawnee Plan 

Signature Construction’s Lot 119 Lake Falls Plan