[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-11912

________________________

D.C. Docket No. 4:08-cv-00355-MCR-CAS

HOME DESIGN SERVICES, INC.,

Plaintiff - Appellant,

versus

TURNER HERITAGE HOMES INC.,

FREDERICK E. TURNER,

DOUGLAS E. TURNER,

SUMMERBROOK HOMES, INC.,

GREENFIELD HOMES, INC.,

Defendants - Appellees.

_______________________

Appeal from the United States District Court

for the Northern District of Florida

_______________________

(June 17, 2016)

Before TJOFLAT and ROSENBAUM, Circuit Judges, and GOLDBERG, Judge*

 * The Honorable Richard W. Goldberg, of the United States Court of International Trade, 

sitting by designation.

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GOLDBERG, Judge:

Plaintiff Home Design Services, Inc. (“Home Design”) has sued Defendants

Turner Heritage Homes, Inc., et al. (“Turner”) for copyright infringement on Home 

Design’s architectural floor plan HDS-2089. According to Home Design, two of 

Turner’s floor plans, the Laurent and the Dakota, infringe on HDS-2089. Home 

Design’s lawsuit went to trial before the district court, and a jury returned a verdict 

in favor of Home Design, awarding $127,760 in damages. Turner moved for 

judgment notwithstanding the jury’s verdict under Rule 50(b), which the district 

court granted. We affirm.

BACKGROUND

Home Design registered HDS-2089 with the Copyright Office in August 

1991. Turner created the Laurent plan in 1999, and thereafter slightly modified the 

Laurent to create the Dakota. Both HDS-2089 and the Laurent depict what is 

known as a “four-three split plan”: a four-bedroom, three-bathroom house with a 

“master” bedroom or suite on one end and three more bedrooms on the other. The 

plans, which are attached as an appendix, share in common the same set of rooms, 

arranged in the same overall layout. The plans also share the presence, location, 

and function of many (but not all) walls, entryways, windows, and fixtures.

Before this case went to trial, Turner moved for summary judgment, arguing 

that the Turner plans did not infringe on HDS-2089 because the plans were not

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“substantially similar” when it came to HDS-2089’s copyright-protectable 

expression. The district court denied summary judgment, holding that

while there [are] an abundance of small differences in areas of 

protectable expression, including the heights of walls, placement of 

windows, and the number of doors in some entryways, there are also 

myriad similarities in areas of protectable expression, including the 

arrangement and location of rooms, the unusual angle of the kitchen 

sink, the placement of the master bedroom and garage, and the common 

foyer at the entrance between the living and dining rooms. As a result 

of these many differences and many similarities in the areas of 

protectable expression, the [c]ourt is unable to conclude that, as a matter 

of law, no reasonable jury could find the works to be or not to be 

substantially . . . similar.

At trial, the district court heard testimony regarding HDS-2089 and the 

Turner plans. James Zirkel, Home Design’s chief executive officer, compared

HDS-2089 to the plan for the third Laurent home that Turner built. (Turner built 

over 160 homes using either the Laurent or Dakota plan.) Zirkel deemed the plans 

similar “except for a few minor parts,” and specifically identified the layout of the 

rooms as shared. Zirkel classified as “minor” the differences between the plans’ 

fireplace placements, orientation of water closets, and shape of living-room wall. 

(The Laurent’s living room has a squared wall abutting the family room and foyer, 

while HDS-2089’s has an angled wall.) Zirkel also conceded the following 

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“numerous small changes, but not major changes,” some of which he classified as 

“options”:

HDS-2089 Laurent Plan Generally

Front Door Double front door Single front door 

Front Porch Projects beyond front bedroom and 

garage

Flush with front bedroom and 

garage

Foyer Opens onto living spaces either 

without archways or columns

Archways and columns leading into 

living spaces 

In addition, with respect to the particular Laurent home he had looked at, Zirkel 

identified a number of further “small changes” or “options”:

HDS-2089 Third Laurent Home

Back Hallway Squared entry; sliding pocket door Archway entry

Pool Bathroom Linen closet No linen closet

Master Bedroom Flat, ten-foot ceiling; plant shelves; 

windows have different sizes and 

locations

Vaulted ceiling; no plant shelves; 

windows have different sizes and 

locations

Living Room Twelve-foot ceiling; windows have 

different sizes and locations

Ten-foot ceiling; windows have 

different sizes and locations

Secondary 

Bedrooms

Different ceiling heights; windows 

in rearmost secondary bedroom 

have different sizes and locations

Different ceiling heights; windows 

in rearmost secondary bedroom 

have different sizes and locations

Nook Symmetrical angled walls with one 

window and a soffit

Asymmetrical angled walls with 

two windows

Kitchen Smaller than Laurent; no desk; 

dishwasher in different location

Larger than HDS-2089; built-in 

desk; dishwasher in different 

location

Master 

Bathroom

Water closet orientation creates 

narrower space at end of 

kitchen/nook hallway; larger shower 

with walk-in area

Water closet orientation creates 

deeper space at end of kitchen/nook

hallway; smaller enclosed shower

Master Closet Four inches narrower Four inches wider

On cross-examination, Turner asked Zirkel about the originality of HDS2089. Zirkel confirmed that HDS-2089 is a split plan, and that at the time that 

Home Design created HDS-2809 approximately seventy percent of the builders he 

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dealt with were requesting split plans. Later in the trial, Home Design introduced 

the deposition testimony of the Home Design employee who drafted HDS-2089. 

According to the employee, “there’s nothing fancy about [HDS-2089]. It’s been 

done over and over again in different variations and iterations. It’s a 3–1 split,1

three bedrooms on one side, a master in the rear. It’s . . . pretty generic.” At the 

time that the employee drafted HDS-2089, “[t]here were plans that were 

preexisting like this—three bedrooms on one side, pool bath, a master on the other 

side. So it was a variation on different themes.”

Turner also asked Zirkel to compare HDS-2089 to two plans that Home 

Design had created at an earlier date, the HDS-2041 and the Timberwood. 

Turner’s theory was that the same similarities Zirkel had identified between HDS2089 and the Turner plans also surfaced when comparing HDS-2089 to its 

predecessors. Zirkel confirmed that HDS-2041 and HDS-2089 share the same 

layout in terms of room location, but differentiated HDS-2041 based on differences 

in configuration. Zirkel also testified that HDS-2089 and the Timberwood “are not 

substantially similar. They are not strikingly similar. They are a four-bedroom 

split plan.”

 1 Although the employee labelled HDS-2089 a three–one split plan, rather than a four–

three split plan, his underlying description of HDS-2089 as featuring four total bedrooms with 

three on one side and one on the other matches the definition of a four–three split plan. (The 

definition also has to do with the number of bathrooms—three—which the employee did not 

address.)

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Home Design’s expert Kevin Alter compared HDS-2089 to the Laurent and 

Dakota plans, describing the plans as “extraordinarily similar.” Alter noted that 

“the overall shape, the massing,2 the individual layout of the rooms is the same. 

The[ rooms] all have the same shape, width, and length. . . . The[ plans] have the 

same organization of rooms. You enter the foyer, the dining room and living room 

on other side.” Alter further explained that the “overall organization of traffic 

patterns” and arrangement of rooms is the same.

Although Alter acknowledged “modest differences” among the plans he 

compared, he also highlighted some mutual unusual design choices. On both 

HDS-2089 and the Turner plans, the partition dividing the kitchen and the family

room does not extend all the way to the ceiling, but instead falls two feet short. 

Furthermore, the master bedrooms are oddly spacious for plans that are otherwise 

arranged efficiently. The master bedroom on both plans also includes an angled 

wall that makes furniture placement awkward. And the master closet opens onto 

the master bathroom, not the bedroom, which Alter described as “a little bit 

unusual” and “not ideal.” Finally, the Laurent plan includes the same thick 

bathroom wall as the HDS-2089, even though only HDS-2089 has its plumbing 

arranged so that the thick wall is necessary. Besides identifying these unusual 

 2 According to Alter, “massing” means “the overall shape of the volume, the shape, the 

particularities of [a plan’s] overall configuration.”

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design choices, Alter classified certain differences between the plans, like the 

placement of the fireplace, as “afterthoughts.”

On cross-examination, Turner pressed Alter on the originality of HDS-2089. 

Alter conceded that HDS-2089 “does not appear unusual” and is not “radically 

different [from] the many things that are on the market.” Alter further allowed that 

HDS-2089 featured many industry-standard design choices, including the 

adjacency of the dining room and breakfast nook to the kitchen, the split 

arrangement of the master bedroom along one exterior wall and the secondary 

bedrooms along the other, and the dimensions of the secondary bedrooms.

Turner then rebutted with the expert testimony of Robert Koch. Koch began 

by reviewing the industry standards governing the overall layout of a four–three 

split plan, and describing the various considerations that drove the standards. 

Koch then identified numerous plans, including but not limited to HDS-2089 and 

the Turner plans, that shared an overall layout reflecting industry standards.3

 Koch 

also identified differences between HDS-2089 and the Turner plans, many of 

 3 In his comparison, Koch referred to a different one of the Laurent’s many iterations.

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which he chalked up to the Laurent being more “traditional” than HDS-2089, 

which Koch described as “modern,” “casual,” and “relaxed”:

HDS-2089 Laurent (Koch version)

Front Porch Small porch; different configuration 

and columns

“[V]ery expensive front porch that 

reache[s] from the front door all the 

way over [to] the bedroom . . . on 

the opposing side”; different 

configuration and columns

Front Door Double doors Single door

Foyer No cased openings or headers above 

the walls in the foyer separating 

living room and dining room 

Formal cased openings to living 

room and dining room

Family Room Modern sliding-glass door; 

Fireplace not located to 

accommodate a flat-screen 

television

Traditional French doors; formal 

windows; Fireplace located to 

accommodate a flat-screen 

television

Back 

Porch/Patio

Patio; backdoor to patio swings 

outward

Porch; backdoor swings inward

Nook Contiguous glass partition Separate windows

Master Bedroom Double doors; single high window 

located above headboard

Single door to restrict views into 

bedroom; formal, conventionally 

located windows

Hallways Different dimensions and openings Different dimensions and openings

Master 

Bathroom

Opening to master bedroom; water 

closet orientation creates shallower 

space at end of kitchen/nook

hallway; toilet not obscured from 

view; linen closet separates water 

closet and shower; doorless shower

Door to master bedroom; water 

closet orientation creates deeper 

space at end of kitchen/nook

hallway; toilet obscured from view; 

linen closet separates bathtub and 

shower; traditional shower door

Garage Door to laundry room swings 

inward

Door to laundry room swings 

outward

Kitchen Desk next to range; wall separating 

kitchen and family room does not 

extend to ceiling

Cabinetry next to range; wall 

separating kitchen and family room 

extends to ceiling

Secondary 

Bathroom

Different style countertops and 

access to water closet

Different style countertops and 

access to water closet

Pool Bathroom Linen closet No linen closet

Secondary 

Bedrooms

Different windows and dimensions Different windows and dimensions

Living Room Different ceiling height; angled wall 

separating living room and family 

room

Different ceiling height; squared

wall separating living room and 

family room

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Koch also drew a global distinction between the HDS-2089 and the Laurent in 

terms of their elevations. Finally, Koch compared HDS-2089 to one of Turner’s 

Dakota plans, and identified a slew of other differences. (Given the variety in 

Turner plans, Koch agreed that different Turner plans would have different 

differences with respect to HDS-2089.)

The jury returned a verdict in favor of Home Design, finding that the Turner 

plans infringed on HDS-2089 and awarding Home Design $127,760 in damages. 

Turner moved for judgment as a matter of law under Rule 50(b). According to 

Turner, no reasonable jury could have found the Turner plans “substantially 

similar” to HDS-2089.

The district court granted Turner’s Rule 50(b) motion. At the outset, the 

district court recounted Koch’s testimony regarding the “numerous, material” 

differences between HDS-2089 and the Laurent, as well as Koch’s generalization 

that these differences rendered the Laurent traditional where HDS-2089 was 

modern. The district court then continued,

The[ differences identified by Koch] are relevant [to whether a 

reasonable jury could have found the Turner plans “substantially 

similar” to HDS-2089] and must be considered at the level of protected 

expression. Although Home Design’s expert Kevin Alter described 

these differences as “modest,” the Eleventh Circuit has made clear that 

“modest dissimilarities” are significant when comparing architectural 

works, due to the fact that “there are only a limited number of ways” to 

organize standard architectural features, such that “similarities in the 

general layout of rooms can easily occur innocently.” Thus, the fact 

that the floor plans at issue are similar in their overall layout is not 

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dispositive, but more importantly, the inclusion of standard 

architectural features, such as large living spaces in the middle of the 

home or secondary bedrooms located on a particular side of the house, 

are merely “ideas” that are generally unprotected [under copyright law] 

(for example, the concept of a “split-bedroom” plan). Accordingly, 

although the general layout of each floor plan at issue is similar, . . . the 

[c]ourt finds the dissimilarities dispositive, especially in light of the 

instruction that “modest dissimilarities” are more significant in 

architectural designs than they are in other types of art works. . . .

[T]he [c]ourt finds that no jury following the [c]ourt’s 

instructions on the law could reasonably find the Laurent and Dakota 

designs substantially similar to HDS-2089 given the amount of 

significant dissimilarities between the plans at the level of protected 

expression. To find infringement on this record, the jury in this case 

must have disregarded the significant differences that existed at the 

level of protected expression and focused instead on the unprotected 

similarities in the designs. This is erroneous as a matter of law.

Accordingly, the district court granted Turner’s Rule 50(b) motion, and instructed 

the clerk to enter judgment against Home Design.

On appeal, Home Design contests the district court’s judgment 

notwithstanding the jury’s verdict. According to Home Design, a reasonable jury 

could and did find that the Turner plans were “substantially similar” to HDS-2089. 

After considering Home Design’s appeal, we affirm.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. § 1338(a) (2012) 

and 28 U.S.C. § 1331. We exercise appellate jurisdiction pursuant to 28 U.S.C. 

§ 1291. We review a district court’s ruling on a motion for judgment as a matter of 

law de novo. Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713, 723 (11th Cir.

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2012). “Under Rule 50, a court should render judgment as a matter of law 

when . . . there is no legally sufficient evidentiary basis for a reasonable jury to 

find for [the nonmoving] party.” Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 149, 120 S.Ct. 2097, 2109 (2000) (citation omitted). The court reviews 

“all the evidence, drawing all reasonable inferences in favor of the nonmoving 

party.” Hubbard, 688 F.3d at 724.

DISCUSSION

Copyright infringement has two elements: “(1) ownership of a valid 

copyright, and (2) copying of [protectable] elements.” Miller’s Ale House, Inc. v. 

Boyton Carolina Ale House, LLC, 702 F.3d 1312, 1325 (11th Cir. 2012) (alteration 

in original) (quoting Oravec v. Sunny Isles Luxury Ventures, LLC, 527 F.3d 1218, 

1223 (11th Cir. 2008)). The second element can be proven either with direct proof 

of copying or, if direct proof is unavailable, “by demonstrating that the defendants 

had access to the copyrighted work and that the works are ‘substantially similar.’” 

Oravec, 527 F.3d at 1223 (citation omitted). It is undisputed on appeal that Home 

Design owns a valid copyright to HDS-2089. It is also undisputed that, while 

Home Design lacks direct evidence that Turner copied HDS-2089, Turner did have 

access to the floor plan. Therefore, Home Design will prevail on appeal if Turner

fails to show that no “reasonable jury could find [HDS-2089 and the Turner plans] 

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substantially similar at the level of protected expression.” Miller’s Ale House, 702 

F.3d at 1325.

The back end of this formula (“level of protected expression”) is 

meaningful, because not every nook and cranny of an architectural floor plan

enjoys copyright protection.

4 First, floor plans, like any work, receive copyright 

protection only to the extent that they qualify as “original works of authorship.” 17 

U.S.C. § 102(a). And, again like any work, floor plans are subject to the 

“fundamental axiom that copyright protection does not extend to ideas but only to 

particular expressions of ideas.” Oravec, 527 F.3d at 1224. The line between idea 

and expression is not a bright one, and must be drawn on a case-by-case basis. Id. 

at 1224–25. In general, though, it is useful to keep in mind the reason the line 

exists: to strike a balance between incentivizing original expression on the one 

hand and promoting the free flow of ideas on the other. Id. Architectural floor 

plans are not protected by copyright to the extent that they portray ideas, rather 

than expressions of ideas.

Second, and more concretely, the Copyright Act restricts which elements of 

architectural floor plans are protectable through its definition of a copyrightable 

“architectural work.” 17 U.S.C. § 101 defines an “architectural work” as “the 

 4 We intend nook and cranny figuratively here, and are not yet addressing the actual nook 

shared by HDS-2089 and the Turner plans.

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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 and composition of spaces and elements in the design, but 

does not include individual standard features.” According to legislative history, 

“individual standard features” include “common windows, doors, and other staple 

building components.” H.R. Rep. No. 101-735 (1990), as reprinted in 1990 

U.S.C.C.A.N. 6935, 6949. The upshot of the idea–expression distinction and the 

statutory definition of “architectural work” is that, “while individual standard 

features and architectural elements classifiable as ideas are not themselves 

copyrightable, an architect’s original combination or arrangement of such 

[elements] may be.” Oravec, 527 F.3d at 1225.

In Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., we likened

the statutory definition of “architectural work” to that of a “compilation.” 554 F.3d 

914, 919 (11th Cir. 2008). Based on the similarity, we concluded that architectural 

works received the same “thin” copyright protection awarded to compilations (as 

opposed to the “thicker” protection we would afford creative or derivative works). 

Id. at 919–20 & n.3. “Thus, when viewed through the narrow lens of compilation 

analysis[,] only the original, and thus protected[,] arrangement and coordination of 

spaces, elements[,] and other staple building components should be compared.” Id. 

And we also took the opportunity to explain why it is appropriate for judges to rule 

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out substantial similarity in cases where no reasonable jury could conclude 

otherwise:

[A] judge is better able to separate original expression from the nonoriginal elements of a work where the copying of the latter is not 

protectable and the copying of the former is protectable. The judge 

understands the concept of the idea/expression dichotomy and how it 

should be applied in the context of the works before him. . . . Because 

a judge will more readily understand that all copying is not 

infringement . . . the “substantial-similarity” test is more often correctly 

administered by a judge rather than a jury—even one provided proper 

instruction. The reason for this is plain—the ability to separate 

protectable expression from non-protectable expression is, in reality, a 

question of law or, at the very least, a mixed question of law and fact. 

It is difficult for a juror, even properly instructed, to conclude, after 

looking at two works, that there is no infringement where, say, 90% of 

one is a copy of the other, but only 15% of the work is protectable 

expression that has not been copied.

Id. at 920 (citation omitted).

Turning to the particular floor plans at issue in Intervest, we concluded that 

no reasonable jury could deem them substantially similar at the level of protected 

expression. Although the floor plans shared the same general layout, the district 

court had identified and “focused upon the dissimilarities in [the] coordination and 

arrangement” of “common components and elements.” Id. at 916, 922 app. In the 

abstract, the differences identified by the district court might come across as 

modest: The district court pointed out minor dimensional discrepancies between 

the plans’ rooms, slight changes in the presence, arrangement, or function of 

various features, incremental modifications to a number of walls, and a smattering 

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of other dissimilarities. Id. at 916–18. Yet the district court ruled that these 

differences precluded a finding that the floor plans were substantially similar at the 

level of protected expression, and we affirmed. Id. at 921.

In Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (2d Cir. 2014), the 

Second Circuit voiced its agreement “with the outcome in Intervest, [but not] with 

its reasoning.” Id. at 103. According to the Second Circuit,

Labeling architecture a compilation obscures the real issue. Every work 

of art will have some standard elements, which taken in isolation are 

un-copyrightable, but many works will have original elements—or 

original arrangements of elements. The challenge in adjudicating 

copyright cases is not to determine whether a work is a creative work, 

a derivative work, or a compilation, but to determine what in it 

originated with the author and what did not. Intervest fails to do this. 

It compares the floor plans of the two houses, “focusing only on the 

narrow arrangement and coordination” of what it deems “standard . . . 

features” and intuits that there was no copying of the arrangement. But 

it fails to provide any analysis of what made a feature “standard” and 

unprotectable.

Id. at 104 (citation omitted). The Second Circuit’s critique of Intervest 

demonstrates a difference between how we have described our copyrightinfringement doctrine versus how they do. In the Second Circuit, a court can rule 

out copyright infringement as a matter of law “either because the similarity 

between two works concerns only non-copyrightable elements of the plaintiff’s 

work, or because no reasonable jury, properly instructed, could find that the two 

works are substantially similar.” Id. at 102 n.12 (quoting Warner Bros. Inc. v. Am. 

Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983) (emphasis omitted)). But the 

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Eleventh Circuit declined to adopt a similar two-part framework in Oravec, on 

grounds that the formulation was “not useful in [Oravec] because the two [parts] 

ultimately merge into a single inquiry: whether a reasonable jury could find the 

competing designs substantially similar at the level of protected expression.” 527 

F.3d at 1224 n.5. In Intervest, we framed our holding in terms of the merged 

inquiry from Oravec. See Intervest, 554 F.3d at 916, 921. When recounting 

Intervest in Zalewski, however, the Second Circuit used terminology from the first 

part of its two-part framework. According to the Second Circuit, we “intuit[ed] 

that there was no copying of the [protected] arrangement,” in other words “that any 

copying of the plaintiff's house designs went only to standard architectural features 

arranged in standard ways.” Zalewski, 754 F.3d at 103–04.

The Second Circuit also used the first part of its framework to decide 

Zalewski. At the outset, the Second Circuit catalogued various unprotectable 

standard elements of architectural works: 

[Because e]fficiency is an important architectural concern[, a]ny design 

elements attributable to building codes, topography, structures that 

already exist on the construction site, or engineering necessity 

should . . . get no protection.

[In addition, t]here are scenes-à-faire[, or customary styles,] in 

architecture. Neoclassical government buildings, colonial houses, and 

modern high-rise office buildings are all [examples of] recognized 

styles from which architects draw. Elements taken from these styles 

should get no protection. Likewise, there are certain market 

expectations for homes or commercial buildings. Design features used 

by all architects, because of consumer demand, also get no protection.

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Id. at 105. With respect to the floor plans before the Second Circuit in Zalewski, 

the court held that “even if Defendants copied Zalewski’s [colonial home] plans, 

they copied only the unprotected elements of his designs.” Id. at 106. The Second 

Circuit observed that many design similarities concerned uncopyrightable elements 

that were “a function of consumer expectations and standard house design 

generally” or “conventions” inherent to “all colonial homes.” Id.5

 The Second 

Circuit then identified various “subtle differences” between Zalewski’s and the 

defendants’ plans: 

[T]here are subtle differences in the paneling, size, and framing of 

Plaintiff’s and Defendants’ doors. These differences are not great, but 

given the constraints of a colonial design, they are significant. The 

same is true of the windows and garage doors that Plaintiff claims are 

identical. They are quite similar in location, size, and general design, 

but again, the similarities are due primarily to the shared colonial 

archetype. The window panes, shutters, and garage-door paneling all 

have subtle differences. Likewise, the designs’ shared footprint and 

general layout are in keeping with the colonial style. There are only so 

many ways to arrange four bedrooms upstairs and a kitchen, dining 

room, living room, and study downstairs. Beyond these similarities, 

Plaintiff’s and Defendant’s layouts are different in many ways. The 

exact placement and sizes of doors, closets, and countertops often differ 

as do the arrangements of rooms.

 5 The Second Circuit also provided a vivid explanation as to why Zalewski could not 

copyright colonial-home conventions. “Great artists often express themselves through the 

vocabulary of existing forms. Shakespeare wrote his Sonnets; Brahms composed his Hungarian 

Dances; and Plaintiff designed his colonial houses. Because we must preserve these forms for 

future artists, neither iambic pentameter, nor European folk motifs, nor clapboard siding are 

copyrightable.” Id.

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Id. at 106–07. Because Zalewski’s plans were drawn in the colonial style, and 

because defendants’ plans differed in numerous subtle ways from Zalewski’s, the 

Second Circuit found no copyright infringement.

We agree with both the reasoning and outcome of Zalewski. If “the 

similarity between two works concerns only non-copyrightable elements,” then 

there can be no copyright infringement as a matter of law. 754 F.3d at 102 n.12. 

Customary styles and efficiency- or expectation-driven industry standards are not 

susceptible to copyright. Id. at 105. And when floor plans are drawn in a 

customary style and to industry standards, even “subtle differences” like those in 

Zalewski can indicate that there is no copyright infringement. Id. at 106–07.6

 

After all, customary styles and industry standards, though not themselves 

copyrightable, often control room placement and features. Id.

We also agree that Intervest is best couched as holding that there was no 

copyright infringement because the floor plans at issue were similar only with 

respect to their noncopyrightable elements. Although the Intervest floor plans

shared the same overall layout, the layout was not copyrightable in that case. See 

Intervest, 554 F.3d at 916, 922 app. And the chosen layout restricted “the variety 

 6 As already noted, Zalewski identified subtle differences in (1) “the paneling, size, and 

framing of Plaintiff’s and Defendant’s [front] doors,” and (2) the “window panes, shutters, and 

garage-door paneling.” Zalewski also specified that “[t]he exact placement and sizes of doors, 

closets, and countertops often differ as do the arrangements of rooms.” Id. at 106–07.

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of ways [the floor plans] c[ould] be divided into [four] bedrooms, [three] baths, a 

kitchen, a great room or living room, closets, porches, etc.” Howard v. Sterchi, 

974 F.2d 1272, 1276 (11th Cir. 1992). “Consequently, differences . . . weigh[ed] 

heavily against a finding of substantial similarity.” Miller’s Ale House, 702 F.3d at 

1326. Because the layouts were noncopyrightable, and because the floor plans

differed in terms of dimensions, wall placement, and the presence and arrangement 

of particular features (or use of slightly varied features), we held that the

similarities between the plans concerned only their noncopyrightable elements. 

See Intervest, 554 F.3d at 916–18, 921. There was therefore no copyright 

infringement.7

 7 It is important to frame Intervest as holding only that there is no copyright infringement 

when floor plans with the same noncopyrightable layouts also boast modest differences such as 

those in Intervest. A more expansive reading would nearly eliminate copyright protection for 

architectural works. Specifically, if Intervest is read as holding that modest differences between 

floor plans always preclude copyright infringement, then even a plan with an entirely original 

layout would receive no copyright protection so long as the copying plan bore some superficial 

differences. That is not the correct result. The Copyright Act protects “original works of 

authorship,” including “architectural works.” 17 U.S.C. § 102.

Also, although we agree with the Second Circuit that Intervest is best framed under the 

first part of the Second Circuit’s two-part framework, we do not abandon the merged inquiry 

from Oravec as a general matter. In many, perhaps most, copyright-infringement cases, sorting 

out the copyrightable and uncopyrightable elements of floor plans will be unnecessary because 

the floor plans will be so obviously different (in terms of overall layout or otherwise) that no 

reasonable jury could find the floor plans substantially similar at the level of protected 

expression. E.g., Miller’s Ale House, 702 F.3d at 1326–27 (no reasonable jury could find sportsbar-and-restaurant floor plans substantial when central bars had different locations and interior 

seating was “markedly different,” among other dissimilarities); Oravec, 527 F.3d at 1223 (no 

reasonable jury could find high-rise condominiums substantially similar given, among other 

differences, “concave/convex concept” featured on both sides of Oravec’s design but only one 

side of Trump’s).

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Taken together, Intervest and Zalewski also support the proposition that 

courts are best-situated to determine whether similarity between two architectural 

works concerns only their noncopyrightable elements. In Intervest, we held that

“separat[ing] protectable expression from non-protectable expression is . . . a 

question of law or, at the very least, a mixed question of law and fact.” Intervest, 

554 F.3d at 920. Zalewski effectuated the Intervest holding insofar as the Second 

Circuit took it upon itself not only to partially define noncopyrightable expression 

(customary styles, industry standards), but also to hold that in light of the floor 

plans’ shared colonial style, subtle differences demonstrated the absence of 

copyright infringement. Cf. Zalewski, 754 F.3d at 105–07.

Intervest and Zalewski control this case. Although HDS-2089 and the 

Turner plans share the same general layout, this is only because both sets of plans 

follow the customary four–three split style, as well as the attendant industry 

standards. Kevin Alter, Home Design’s own expert, conceded on crossexamination that HDS-2089’s split-bedroom arrangement aligns with industry 

standards, as does the contiguity of the dining room, breakfast nook, and kitchen. 

Alter further characterized HDS-2089 as neither “unusual” nor “radically different 

[from] the many things that are on the market.” No one, including Home Design, 

owns a copyright to the idea of a four–three split style, nor to the industry 

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21

standards that architects regularly heed to achieve such a split. Cf. Zalewski, 754 

F.3d at 105–06.

It might be objected that, here, HDS-2089 and the Turner plans share 

unusual design choices that disrupt the customary four–three split style and 

constitute protectable expression. Of the finite number of ways to permute a 

rectangle into a four–three plan, some ways may involve unique or unusual design 

choices. To the extent that a four–three plan departs from customary style and 

industry standards and espouses unusual design choices, those choices may 

constitute protectable expression. After all, the Copyright Act protects “original

works of authorship,” including the “arrangement and composition of spaces and 

elements” in a floor plan. 17 U.S.C. §§ 101–102.

The problem for Home Design is that the design choices in HDS-2089 are 

not unusual. Alter noted that both HDS-2089 and the Turner plans showcase a 

kitchen–family-room partition that fails to couple with the ceiling, an oddly 

spacious and angled master bedroom, a master closet that opens onto the master 

bathroom (instead of the bedroom), and a thick bathroom wall, despite the fact that 

only HDS-2089 has plumbing that requires such a sturdy wall. But, again, Alter 

outright said that HDS-2089 is not “unusual.” He further stated that HDS-2089 is 

not “radically different [from] the many things that are on the market.” We 

therefore conclude that the design choices identified by Alter are not unusual, but 

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humdrum.8 HDS-2089 reflects the customary style of a four–three split plan, 

which is not entitled to copyright protection.

In light of the constraints imposed by a four–three split style, the differences 

between HDS-2089 and the Turner plans demonstrate the absence of copyright 

infringement. The differences between HDS-2089 and the Turner plans are 

differences in dimensions, wall placement, and the presence, arrangement, and 

function of particular features around the house. Because the same sorts of 

differences indicated no infringement in Intervest, that result follows in this case as 

well. See Intervest, 554 F.3d at 916–18.9

Home Design implores us to depart from Intervest insofar as it “suggests 

that judges are better equipped than juries to apply the substantial similarity test to 

architectural works at the summary judgment stage.” Home Design “respectfully 

 8 An investigation of other floor plans available to us lends additional, though 

unnecessary, support to our position. Half of the so-called unusual design choices can be found 

in, of all places, the Intervest plans. The Intervest master bedrooms are larger in proportion to 

their overarching plans than the master bedrooms in this case, even though Alter dubbed the 

master bedrooms in HDS-2089 and the Turner plans oddly spacious. See Intervest, 554 F.3d at 

922 app. Also, the Intervest plans double down on walk-in closets letting onto the master 

bathroom (not the bedroom), despite Alter saying that this arrangement is “a little bit unusual” 

and “not ideal.” Id. The Intervest plans’ inclusion of these design choices suggests that they are 

not unusual.

An examination of Home Design’s Timberwood further confirms our position. The 

Timberwood plan shares HDS-2089’s relative master-bedroom proportions and angled walls, 

and bathroom-accessed master closets. Design choices that are common among many floor 

plans are, by definition, not unusual.

9 Of course, differences besides those in Intervest can indicate the absence of copyright 

infringement between floor plans drawn in the same customary style and to industry standards. 

The differences in Zalewski, for example, fit the bill. 754 F.3d at 106–07.

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submit[s] that Intervest’s assumption about a district court’s superior ability to 

identify protected features of an architectural work should be revisited.” After all, 

Home Design reminds us, “[j]udges are not generally students of architecture. Nor 

are they, by their position, smarter than jurors.”

Home Design also distinguishes Intervest from this case in terms of 

procedural posture. One postural distinction is that, in Intervest, we reviewed the 

district court’s grant of summary judgment. No jury verdict was involved. By 

contrast, in this case, we review the district court’s grant of judgment 

notwithstanding the jury’s verdict. A second difference is that, in this case, the 

district court denied Turner’s prior motion for summary judgment before changing 

course following the jury’s verdict. According to Home Design, one or both of 

these differences portend a change in result.

We are not convinced. Although we agree with Home Design that judges 

are neither architecture students nor bestowed by rite with special intelligence, we 

stand by the core premise that judges can, in certain cases, remove the question of 

substantial similarity from jury consideration. We have repeatedly sanctioned 

summary judgment determinations that one architectural work does not infringe on 

another as a matter of law. Miller’s Ale House, 702 F.3d at 1326; Intervest, 554 

F.3d at 920–21; Oravec, 527 F.3d at 1223; Beal v. Paramount Pictures, Corp., 20 

F.3d 454, 459–60 (11th Cir. 1994). This practice should be unremarkable to all: 

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The whole purpose of summary judgment and judgment as a matter of law is to 

allow judges to remove questions from the jury when the evidence can support 

only one result. And we have further held that identifying floor plans’ unprotected 

portions is a question of law. See Intervest 554 F.3d at 919–20. We are not alone: 

Zalewski squarely backs this holding. Cf. Zalewski, 754 F.3d at 102. Interpreting 

the law is for a judge, not a jury. If a judge concludes that floor plans are drawn in 

a customary style and to industry standards, then differences between the floor 

plans can relegate the plans’ similarities to the level of noncopyrightable elements. 

A judge faced with such a situation can and should remove substantial similarity 

from the jury, just as the district court did below.

In light of judges’ role in sometimes removing the question of substantial 

similarity from the jury, Home Design’s postural distinctions between this case and 

Intervest are immaterial. All the jury’s verdict in favor of Home Design shows is 

that the jury reached an unsupportable result. Rule 50(b) operates as an escape 

valve for precisely this situation. And the district court’s change of heart between 

summary judgment and judgment as a matter of law is equally irrelevant. A “prior 

denial of summary judgment does not rule out the possibility of a subsequent 

directed verdict.” Gross v. Southern Ry. Co., 446 F.2d 1057 (5th Cir. 1971).10 We 

 10 Decisions of the Fifth Circuit handed down before September 30, 1981 are binding on 

the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).

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agree with the result that the district court ultimately reached after the jury’s 

verdict: The Turner plans do not infringe on HDS-2089 as a matter of law.

11

CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment 

notwithstanding the jury’s verdict.

AFFIRMED.

 11 Home Design also argues that the district court misapplied the Rule 50 standard. We 

disagree. Finally, because we agree with the district court that no reasonable jury could find 

HDS-2089 and the Turner plans substantially similar, we do not reach Home Design’s subsidiary 

argument that the jury awarded insufficient damages.

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ROSENBAUM, Circuit Judge, concurring:

I agree with the panel’s conclusion that our decision in Intervest Construction, 

Inc. v. Canterbury Estate Homes, Inc. (“Intervest”), 554 F.3d 914 (11th Cir. 2008), 

drives this case and requires affirmance of the district court’s entry of judgment 

under Rule 50. But I think that Intervest represents a wrong turn in our Circuit’s 

copyright jurisprudence. Specifically, Intervest holds that judges are necessarily 

better able than juries to resolve whether the “average lay observer” would find 

“substantial similarity” between two architectural works. But we ask juries to 

answer this same question in all kinds of other copyright cases. Because I do not 

see a basis for exempting copyright cases involving architectural works from jury 

trials simply because the question of “substantial similarity” may be close, I 

respectfully disagree with Intervest and would steer clear of its holding, were we not 

bound by it.

To establish copyright infringement, a plaintiff must prove (1) that it owns a 

valid copyright and (2) that the defendant copied original—meaning “protectable”—

elements of the work. Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 

1223 (11th Cir. 2008). As the Supreme Court has explained, “The mere fact that a 

work is copyrighted does not mean that every element of the work may be protected. 

Originality remains the sine qua non of copyright; accordingly, copyright protection 

may extend only to those components of a work that are original to the author.” Feist 

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Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S. Ct. 1282, 1289 

(1991).

Where, as here, a plaintiff lacks direct proof of copying, the plaintiff may 

establish the element of copying by showing that the defendant “had access to the 

copyrighted work and that the works are ‘substantially similar.’” Herzog v. Castle 

Rock Entm’t, 193 F.3d 1241, 1248 (11th Cir. 1999). The test for “substantial 

similarity” is not at all technical. To the contrary, “substantial similarity” exists 

where “an average lay observer would recognize the alleged copy as having been 

appropriated from the copyrighted work.” Original Appalachian Artworks, Inc. v. 

Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir. 1982) (emphasis added). 

Because a copyright owner holds the rights to only those portions of his or her 

work that are original, the copyright owner must demonstrate “both [that] the 

similarities between the works are substantial from the point of view of the lay 

observer and [that] those similarities involve copyrightable material.” Oravec, 527 

F.3d at 1224 (internal alteration omitted); see id. n.5. In other words, the “substantial 

similarity” must exist at “the level of protected expression.” Id. at 1227.

Whether two works are “substantially similar” at the level of protected 

expression seems to me to be an inherently subjective and fact-bound inquiry. “At 

the most narrow, focused level, two works will almost always be distinguishable, 

and at the broadest level of abstraction they will almost always appear identical.” 

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Baby Buddies, Inc. v. Toys R Us, Inc., 611 F.3d 1308, 1316 (11th Cir. 2010). As a 

result, “[l]ists of similarities between the two works are inherently subjective and 

unreliable, particularly where the list contains random similarities, and many such 

similarities could be found in very dissimilar works.” Herzog, 193 F.3d at 1257 

(internal quotation marks omitted). 

Indeed, long ago, Judge Learned Hand explained why the “substantially 

similar” inquiry will nearly always be subjective and ad hoc:

Upon any work . . . a great number of patterns of 

increasing generality will fit equally well, as more and 

more of the incident is left out. The last may perhaps be 

no more than the most general statement of what the 

[copyrighted work] is about, and at times might consist 

only of its title; but there is a point in this series of 

abstractions where they are no longer protected, since 

otherwise the [copyrighter] could prevent the use of his 

ideas, to which, apart from their expression, his property 

is never extended. Nobody has ever been able to fix that 

boundary, and nobody ever can.

Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930). Because 

“substantial similarity is an extremely close question of fact” the determination of 

which is by necessity subjective and ad hoc, “summary judgment has traditionally 

been frowned upon in copyright litigation.” Latimer v. Roaring Toyz, Inc., 601 F.3d 

1224, 1232 (11th Cir. 2010) (internal citation omitted); see also Peter Letterese and 

Assocs., Inc. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1302 (11th Cir. 

2008) (“Historically, courts have hesitated to make determinations as to 

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infringement or non-infringement on a summary judgment motion because of their 

reluctance to make subjective determinations regarding the similarity between two 

works.” (internal quotation marks and alteration omitted)).

Nor is the question of whether “substantial similarity” exists at the level of 

“protectable expression” a question unique to copyright actions involving 

architectural works. Rather, it is one that we must answer in every copyright action, 

regardless of whether the object of the copyright is a book, a piece of artwork, or an 

architectural work. 

Books and movies, for example, often include non-copyrightable elements 

such as scènes à faire—“sequences of events which necessarily follow from a 

common theme,” or “[i]ncidents, characters, or settings that are indispensable or 

standard in the treatment of a given topic.” Herzog, 193 F.3d at 1248. So in cases 

involving those media, juries regularly must separate the unprotected elements from 

those that are copyrighted before determining whether “substantial similarity” exists 

between the original and the alleged copy.

Cases involving “compilations”—“work[s] formed by the collection and 

assembling of preexisting materials or of data that are selected, coordinated, or 

arranged in such a way that the resulting work as a whole constitutes an original 

work of authorship,” 17 U.S.C. § 101—likewise require the factfinder to determine 

whether “substantial similarity” exists between the protectable elements of a 

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compilation and an alleged copy. We have had no problem finding juries capable of 

distinguishing between protected elements and unprotected elements in these types 

of cases. See, e.g., BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129 (11th 

Cir. 2007).

In Intervest, however, we departed from the rule of having juries decide the 

inherently fact-bound issue of whether two works are “substantially similar” and 

crafted a new rule for cases involving “architectural works.” 554 F.3d at 920-21. 

Specifically, we held that judges are generally better able to conduct this inquiry at 

summary judgment than jurors are at trial. Id. at 919-20. 

In arriving at this new rule, we first opined that the Copyright Act of 1976’s 

definition of “architectural work” “closely parallels that of a ‘compilation’”; so, as 

with compilations, “any similarity comparison of [architectural works] . . . must be 

accomplished at the level of protected expression—that is, the arrangement and 

coordination of” “common windows, doors, and other staple building components.” 

Id. at 919. Based on this analogy, we cited the Supreme Court’s decision in Feist 

Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349, 111 S. Ct. 

1282, 1289 (1991), for the proposition that copyright protection in an architectural 

work, like a compilation, is “thin.” Intervest, 554 F.3d at 919. 

Then we opined that judges, not jurors, are best equipped to conduct the 

“substantial similarity” inquiry in cases involving architectural works. Id. at 920-

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21. We reasoned,

[A] judge is better able to separate original expression 

from the non-original elements of a work where the 

copying of the latter is not protectable and the copying of 

the former is protectable. The judge understands the 

concept of the idea/expression dichotomy and how it 

should be applied in the context of the works before him. 

As we have observed: “This distinction—known as the 

idea/expression dichotomy—can be difficult to apply, as 

there is no bright line separating the ideas conveyed by a 

work from the specific expression of those ideas.” Oravec

[v. Sunny Isles Luxury Ventures, L.C., 527 F.3d [1218, 

1224 (11th Cir. 2008)]. Moreover, in examining 

compilations wherein only the arrangement and 

coordination of elements which by the nature of the work 

(here architectural floor plans) are sure to be common to 

each of the works and are not copyrightable themselves 

(special [sic] depictions of rooms, doors, windows, walls, 

etc.), the already difficult tasks may become even more 

nuanced. Because a judge will more readily understand 

that all copying is not infringement, particularly in the 

context of works that are compilations, the “substantialsimilarity” test is more often correctly administered by a 

judge rather than a jury—even one provided proper 

instruction. The reason for this is plain—the ability to 

separate protectable expression from non-protectable 

expression is, in reality, a question of law or, at the very 

least, a mixed question of law and fact. It is difficult for a 

juror, even properly instructed, to conclude, after looking 

at two works, that there is no infringement where, say, 

90% of one is a copy of the other, but only 15% of the 

work is protectable expression that has not been copied.

Id. 

I think we lost our way in Intervest. While I agree with the majority that our 

decision in Intervest compels us to affirm the district court’s decision in this case, I 

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believe the unique rule we crafted for architectural works is unmoored from 

traditional copyright jurisprudence. I find no reason that survives scrutiny which 

warrants treating the “substantially similar” inquiry in copyright cases involving 

“architectural works” differently than the “substantially similar” inquiry in other 

copyright cases. 

True, in Feist, the Supreme Court explained that the protection afforded 

factual compilations is “thin” in the sense that the raw materials of a compiler’s 

medium—namely, facts—are not themselves copyrightable. 499 U.S. at 349, 111 

S. Ct. at 1289. But this is just another way of saying that the factfinder must consider 

whether “substantial similarity” exists at the level of protectable expression—

original content—only, and the amount of protectable expression relative to total 

content in a compilation is less than in a more original type of work. Whatever 

protectable expression a compilation contains, however, remains subject to the same 

copyright protection as the original content in all other types of copyrighted work. 

See id. at 349, 111 S. Ct. at 1290 (“[C]opyright assures authors the right to their 

original expression, but encourages others to build freely upon the ideas and 

information conveyed by a work. . . . This principle, known as the idea/expression 

or fact/expression dichotomy, applies to all works of authorship.”) (emphasis 

added).

Indeed, when Congress amended the Copyright Act to include “architectural 

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33

works” in 1990, it did so because it recognized that “[a]rchitecture is not unlike 

poetry” and “concluded that the design of a work of architecture is [therefore] a 

‘writing’ under the Constitution and fully deserves protection under the Copyright 

Act.” H.R. Rep. No. 101–735 (1990), as reprinted in 1990 U.S.C.C.A.N. 6935, 

6941. Put simply, the protectable elements of an “architectural work,” though they 

may be fewer and therefore “thin” relative to other works, are nonetheless entitled 

to the full protection of the Copyright Act.

So the “thinness” or “thickness” of protected expression in a type of work 

merely defines the frame of reference for the “substantial similarity” inquiry. See 

Oravec, 527 F.3d at 1224 (explaining that the similarity inquiry targets the similarity 

between the protectable expression of a copyrighted work and the expression in an 

allegedly infringing work). But once we are looking at protectable expression, I see 

no meaningful difference in the substance of the “substantially similar” inquiry 

applicable to works entitled to “thick” protection, such as novels, and that inquiry 

applicable to works entitled to “thin” protection, such as architectural works. 

Regardless of the type of work at issue, a copyright plaintiff will always be required 

to demonstrate substantial similarity “at the level of protected expression.” Id. at 

1227. 

To the extent that Intervest suggests that the protectable expression in an 

architectural plan is somehow subject to less protection than the protectable 

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34

expression in any other kind of copyright-protected content, the Second Circuit aptly 

summed up the problems with our approach in Intervest: 

Labeling architecture a compilation obscures the real 

issue. Every work of art will have some standard 

elements, which taken in isolation are un-copyrightable, 

but many works will have original elements—or original 

arrangements of elements. The challenge in adjudicating 

copyright cases is not to determine whether a work is a 

creative work, a derivative work, or a compilation, but to 

determine what in it originated with the author and what 

did not. Intervest fails to do this. . . .

Courts should treat architectural copyrights no differently 

than other copyrights. This is what Congress envisioned . 

. . .

Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 104 (2d Cir. 2014). 

But the most troubling aspect of our decision in Intervest is our conclusion 

that judges are more able to conduct the inherently factual and subjective 

“substantially similar” inquiry in architectural-works cases than jurors. Intervest, 

554 F.3d at 920-21. I respectfully disagree with this determination.

The Seventh Amendment guarantees parties like Turner a jury trial. While 

the Copyright Act does not explicitly provide copyright plaintiffs a right to a jury 

trial, it does permit plaintiffs to recover either actual or statutory damages for 

violations of the Act. 17 U.S.C. § 504. And when a plaintiff seeks to recover either 

actual or statutory damages under the Act, the Seventh Amendment guarantees that 

plaintiff a right to a jury trial. Feltner v. Columbia Pictures Television, Inc., 523 

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35

U.S. 340, 355, 118 S. Ct. 1279, 1288 (1998); see id. at 346, 118 S. Ct. at 1284. 

The Seventh Amendment, in turn, requires, where it applies, “that enjoyment 

of the right of trial by jury be not obstructed, and that the ultimate determination of 

issues of fact by the jury be not interfered with.” In re Peterson, 253 U.S. 300, 310, 

40 S. Ct. 543, 546 (1920). Of course, it has long been recognized “that when the 

evidence given at the trial, with all inferences that the jury could justifiably draw 

from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if 

returned, must be set aside, the court is not bound to submit the case to the jury, but 

may direct a verdict for the defendant” without violating the Seventh Amendment. 

Randall v. Baltimore & O.R. Co., 109 U.S. 478, 481, 3 S. Ct. 322, 324 (1883); see 

also Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S. Ct. 580, 585 (1899) 

(“‘Trial by jury,’ in the primary and usual sense of the term at the common law and 

in the American constitutions, . . . is a trial by a jury of 12 men in the presence and 

under the superintendence of a judge empowered to instruct them on the law and to 

advise them on the facts, and . . . to set aside their verdict, if, in his opinion, it is 

against the law or the evidence.”).

But we do not remove factual determinations from a jury simply because the 

factual inquiry is “nuanced” or “difficult.” Cf. Intervest, 554 F.3d at 920. Instead, 

we issue specific instructions to educate the jury on the nature of its inquiry and 

presume that the jury follows those instructions. Fed. R. Civ. P. 51; Jamerson v. 

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36

Sec’y for Dep’t of Corr., 410 F.3d 682, 690 (11th Cir. 2005) (“[W]e presume that 

juries follow instructions . . . .”). And, where necessary, we ask the jury to return 

special verdicts breaking out each factual determination the jury must make to guide 

the jury in its task. Fed. R. Civ. P. 49. Parties also may present expert testimony to 

assist the jury in its evaluation of the evidence. See Fed. R. Evid. 702.

In fact, we routinely entrust juries with highly technical and complex factual 

inquiries, including, for instance, issues such as whether one party infringed 

another’s software patent, see Telecom Tech. Servs., Inc. v. Rolm Co., 388 F.3d 820 

(11th Cir. 2004); whether a party possesses monopoly power in a relevant market or 

has sufficient economic power to coerce another into buying a tied product in 

Sherman Antitrust Act cases, see Tech. Res. Servs., Inc. v. Dornier Med. Sys., Inc., 

134 F.3d 1458, 1465-66 (11th Cir. 1998); and whether a party has established loss 

causation in a § 10(b) case under the Securities and Exchange Act of 1934, see 

Rousseff v. E.F. Hutton Co., 843 F.2d 1326, 1329 (11th Cir. 1988).

And we ask juries to make significantly weightier factual determinations than 

whether two works are “substantially similar,” including, for instance, a criminal 

defendant’s liability. Indeed, the Sixth Amendment demands that juries, not judges, 

make the weightiest of all factual determinations: whether capital punishment is 

warranted. Ring v. Arizona, 536 U.S. 584, 589, 122 S. Ct. 2428, 2432 (2002). 

In short, when factual determinations are “nuanced” or “difficult,” we educate 

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37

juries and provide them with the tools necessary to do the job. We do not take the 

issues away from the jury and defer to judges. I am aware of no case law that stands 

for the proposition that we may more readily remove factual determinations from 

the jury’s purview when those determinations are, in the view of the judge, 

“difficult.”

But even if such precedent existed, I would not see the sense in generally 

removing the issue of “substantial similarity” from the jury in any kind of copyright 

case, including those involving architectural works. The standard for whether two 

works are “substantially similar” is whether “an average lay observer would 

recognize the alleged copy as having been appropriated from the copyrighted work.” 

Original Appalachian Artworks, Inc., 684 F.2d at 829 (emphasis added). 

It is not clear to me why judges would be “better able to separate original 

expression from the non-original elements of a work where the copying of the latter 

is not protectable and the copying of the former is protectable.” Intervest, 554 F.3d 

at 920. I think it unlikely that many judges have architectural or even design 

experience. So we have no more practical, real-world understanding of the 

significance of particular design elements necessary to make a determination about 

whether a given architectural work is substantially similar to another at the level of 

protected expression than does a jury. 

That is not to say that we cannot make informed decisions regarding these 

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issues, upon reviewing appropriate evidence and applying the correct standard. Of 

course we can. But so can juries. Indeed, the very nature of the standard—“average 

lay observer”—suggests as much.1

I likewise respectfully disagree with any notion that judges have a special 

grasp on “the concept of the idea/expression dichotomy and how it should be applied 

in the context of the works before [them].” Id. No degree of mastery of the “concept 

of the idea/expression dichotomy” renders a judge better able to determine whether 

an average lay observer would recognize an alleged copy as having been 

appropriated from a copyrighted work.

Here, had we applied the same rules of copyright law that we use in cases 

involving copyrights on other types of works, the Rule 50 motion would have been 

properly denied because a material issue of fact existed. Specifically, an average lay 

observer could have concluded that the Turner plans are substantially similar to 

HDS-2089, evidencing unlawful copying. 

Even a cursory glance at the blueprints reveals that, as HDS’s CEO testified 

at trial, the Turner plans are “virtually line for line” copies of HDS-2089. See App. 

This fact led HDS’s expert witness2 to testify that “the overall organization of traffic 

 1 Ironically, it seems more likely that at least some members of a jury would have 

architectural or design experience or training of some type and therefore actually have a practical 

understanding of the significance of various protectable design elements in an architectural work.

2 HDS relied on the expert-witness testimony of Kevin Samuel Alter, Associate Dean for 

Graduate Programs and Professor of Architecture at the University of Texas at Austin.

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patterns for the home[s]” appears to be identical. HDS’s expert further testified that 

“the overall shape, the massing, the individual layout of the rooms is the same. They 

all have the same shape, width, and length. They have essentially the same massing 

. . . . They have the same organization . . . .” In other words, the selection and 

arrangement of common building elements in the Turner plans, in general, is nearly 

identical to the selection and arrangement in HDS-2089.

And beyond that, HDS’s expert also noted that the plans contain certain odd 

features that are hard to explain if Turner did not unlawfully copy from HDS-2089. 

For example, one of the bathroom walls in both HDS-2089 and the Laurent plan is 

slightly thicker than the surrounding walls. This feature has a practical purpose in 

HDS-2089, but it makes no sense in the Laurent plan: in the HDS-2089, the thicker 

wall provides a way to accommodate the plumbing for a bath tub, but in the Laurent 

plan, the tub is turned, so the plumbing for the tub necessarily would not run through 

the thicker wall.

True, as the Majority points out, the plans have differences. The Majority 

notes, among others, that the door to the laundry room in the garage swings inwards 

in HDS-2089 and outwards in the Turner plans, and the plans’ respective secondary 

bathrooms feature different countertops. See id. In Intervest, we held that similar 

sorts of differences as those identified by the Majority would have precluded a 

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reasonable jury from finding “substantial similarity.” See 554 F.3d at 916-17. 

Respectfully, I disagree.

Instead, I would hold that “an average lay observer” could find these 

differences between the HDS-2089 and Turner plans to be immaterial in light of the 

plans’ otherwise “substantial similarity” at the level of protected expression. Indeed, 

the first trial judge denied Turner’s summary-judgment motion because the judge 

concluded that “there are . . . myriad similarities in areas of protectable expression,” 

so a reasonable jury could find the works “to be substantially or even strikingly 

similar.” And, after a five-day jury trial, a jury of average lay observers did just that, 

concluding that all 165 of the Laurent and Dakota houses at issue are “substantially 

similar” to HDS-2089. To second guess the jury at this stage based on nothing more 

than a list of modest dissimilarities—the very sort of list that we have already 

rejected as “inherently subjective and unreliable,” Herzog v. Castle Rock 

Entertainment, 193 F.3d 1241, 1257 (11th Cir. 1999)—seems to me to unjustifiably 

usurp the role of the jury in copyright cases and deny owners of architectural work 

copyrights the full protection of the Copyright Act. 

So while I agree with the majority that our decision in Intervest dictates that 

we uphold the district court’s decision granting Appellee’s Rule 50 motion, I think 

it time to revisit Intervest.

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TJOFLAT, Circuit Judge, Concurring:

I join the panel’s opinion in full. I write separately to address the 

purportedly untenable infirmities of Intervest Construction, Inc. v. Canterbury 

Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008)—which I agree compels our 

decision today—that Judge Rosenbaum identifies. Specifically, I deny that our 

decision in Intervest either requires or suggests an impermissibly broad role for 

judges at the expense of the jury right secured by the Seventh Amendment1 in 

cases alleging copyright infringement of architectural works.

As an initial matter, Intervest in no way “holds that judges are necessarily 

better able than juries to resolve whether the ‘average lay observer’ would find 

‘substantial similarity’ between two architectural works.” Ante at 1 (Rosenbaum, 

J., concurring) (emphasis added); cf. Edwards v. Prime, Inc., 602 F.3d 1276, 1298 

(11th Cir. 2010) (“We have pointed out many times that regardless of what a court 

says in its opinion, the decision can hold nothing beyond the facts of that case. . . . 

And dicta is not binding on anyone for any purpose.” (citations omitted)). What 

Intervest suggests (and rightfully so), however, is that claims of copyright 

infringement are “often more reliably and accurately resolved in a summary 

 1 The Seventh Amendment to the United States Constitution provides, “In Suits at 

common law, where the value in controversy shall exceed twenty dollars, the right of trial by 

jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of 

the United States, than according to the rules of the common law.” U.S. Const. amend. VII.

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judgment proceeding” when the “crucial question” requires assessing “substantial 

similarity at the level of protectable expression” over types of works warranting 

only “‘thin’” protection, like architectural works. See 554 F.3d at 919 (quoting 

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349, 111 S. Ct. 1282, 

1289, 113 L. Ed. 2d 358 (1991)). Far from warranting reconsideration from this 

Court sitting en banc, that notion is both commonsensical and utterly 

unremarkable. Nothing in Intervest strips from juries their historically and 

constitutionally critical responsibility to make factual determinations. Rather, 

Intervest simply recognizes that when there are more legal determinations to be 

made relative to factual ones, judges will have relatively more to do. The role to 

be played by judges—who are, of course, responsible for delineating these legal 

boundaries—will necessarily be greater at summary judgment in cases in which the 

scope of the protectable expression is “thin” because “the ability to separate 

protectable expression from non-protectable expression is, in reality, a question of 

law or, at the very least, a mixed question of law and fact.” Id. at 920. And this is 

especially so when, as is often true of these types of cases, the scope of the legally 

protectable expression at issue may be less than crystal clear. 

In my view, there is no reason to revisit our holding in Intervest because 

Intervest was, and remains, correctly decided.

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APPENDIX

HDS-2089

The Laurent

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