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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KB HOME, §

§

Plaintiff, §

§

v. § Civil Action No. 3-04-CV-1031-L

§

ANTARES HOMES, LTD., ANTARES §

HOMES LLC, ANTARES GP, LLC, §

and RONALD F. FORMBY, §

an individual, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the court is Defendants’ Motion for Summary Judgment, filed August 5, 2005. After

careful consideration of the motion, response, reply, briefs, appendices, competent summary

judgment evidence, record, and applicable law, the court grants in part and denies in part

Defendants’ Motion for Summary Judgment. 

I. Factual and Procedural Background

Plaintiff KB Home (“KB Home” or “Plaintiff”) is an architectural design and home-building

company that designs and builds residential developments. It is the owner of a set of architectural

floor plan designs for single-family homes. KB Home has certificates of copyrights for the designs,

and the drawings are deposited with the United States Copyright Office. Defendants Antares

Homes, Ltd., (“Antares Ltd.”), Antares Homes LLC (“Antares LLC”), Antares GP, LLC (“Antares

GP”) and Ronald F. Formby (“Formby”) (collectively “Defendants”) are also residential

homebuilders.

 

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1

Rayco was a homebuilder in San Antonio, Texas.

2

The architectural blueprints are titled Plan H-2871-R1 Design, Plan H-3288-R1 Design, Plan H3265-R1 Design, Plan H-2334-R3 Design, Plan 240.2162.A2R Design, and Plan 240.2693 Design.

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 In 1996, KB Home (known at that time as Kaufman & Broad) acquired Rayco1 and all of

Rayco’s assets, including its copyrighted designs. On March 1, 1997, KB Home hired Formby as

Vice-President of Sales for the Dallas Division. Formby’s job was to take the old Rayco business

model and implement it in the Dallas Division. His responsibilities included working closely with

Rayco employees in San Antonio, and dealing hands-on with old Rayco plans that KB Home began

to sell in Dallas. KB Home terminated Formby on September 30, 1998. In December 1998, Formby

established Antares Homes.

KB Home filed this lawsuit on May 12, 2004, alleging copyright infringement by

Defendants. It seeks a permanent injunction in addition to damages. KB Home alleges that Formby

copied six of Rayco’s, now KB Home’s, copyrighted designs, and created architectural technical

drawings in “virtually all significant respects, including overall form arrangement and composition

of spaces and elements.”2

 Plaintiff’s Complaint at 7-8. KB Home also alleges that Defendants

“marketed single family homes by publishing simplified abridged plans, based on copies of the KB

Home [c]opyrighted [d]esigns, in brochures and on the internet.” Id. KB Home further alleges that

Defendants “constructed, marketed and sold single family houses that were substantially similar to

each of the KB Home [c]opyrighted [d]esigns with respect to, and without limitation, the overall

form and the arrangement and composition of spaces and elements.” Id. 

Defendants filed their motion for summary judgment contending that: (1) their house plans

are not sufficiently similar to Plaintiff’s plans to support a finding of infringement; (2) two of

Plaintiff’s house plans are not afforded copyright protection because “they were published without

 

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copyright notice during a period of time when such notice was required under law;” and (3) no

evidence exists that they had access to one of the house plans at issue – Plan 240.2693 Design.

Defendants’ Brief at 1-2. 

II. Analysis

A. Summary Judgment Standard

Summary judgment shall be rendered when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v.

Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact

is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a

motion for summary judgment, the court is required to view all inferences drawn from the factual

record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court “may not make

credibility determinations or weigh the evidence” in ruling on motion for summary judgment.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-

55.

Once the moving party has made an initial showing that there is no evidence to support the

nonmoving party’s case, the party opposing the motion must come forward with competent summary

judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere

conclusory allegations are not competent summary judgment evidence, and thus are insufficient to

 

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defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent

summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513

U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence

in the record and to articulate the precise manner in which that evidence supports his claim. Ragas,

136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search

of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see

also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.), cert. denied, 506 U.S. 832

(1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws

will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact

issues which are “irrelevant and unnecessary” will not be considered by a court in ruling on a

summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to

establish the existence of an element essential to its case and on which it will bear the burden of

proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

B. Copyright Infringement

To establish a claim for copyright infringement, a plaintiff must prove that: (1) he owns a

valid copyright and (2) the defendant copied constituent elements of the plaintiff's work that are

original. Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004)

(citing General Universal Sys. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004)). With respect to the first

element, “[c]opyright ownership is shown by proof of originality and copyrightability in the work

as a whole and by compliance with applicable statutory formalities.” Engineering Dynamics v.

Structural Software, Inc., 26 F.3d 1335, 1340 (5th Cir. 1994). To establish the second element, a

 

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plaintiff must prove: (1) factual copying and (2) substantial similarity. Bridgmon v. Array Sys.

Corp., 325 F.3d 572, 576 (5th Cir. 2003). Factual copying “can be prove[d] by direct or

circumstantial evidence.” Id. “As direct evidence of copying is rarely available, factual copying may

be inferred from (1) proof that the defendant had access to the copyrighted work prior to creation

of the infringing work and (2) probative similarity.” Peel & Co. v. The Rug Market, 238 F.3d 391,

394 (5th Cir. 2001). If a plaintiff establishes an inference of factual copying (by showing access and

probative similarity), the defendant can rebut that inference, and thus escape liability for

infringement, if he can prove that he independently created the work. Id. at 398. If a plaintiff has

established factual copying (and the defendant does not establish independent creation), the plaintiff

must also prove that the copyrighted work and the alleged infringing work are substantially similar.

Bridgmon, 325 F.3d at 577. To answer the question of substantial similarity, a side-by-side

comparison must be made between the original and the copy to determine whether a layman would

view the two works as substantially similar. Id. at 576-77 (internal citation and quotation marks

omitted). The question of substantial similarity should typically be left to the fact finder, however,

summary judgment may be appropriate if the court can conclude, after viewing the evidence and

drawing inferences in a manner most favorable to the nonmoving party, that no reasonable juror

could find substantial similarity of ideas and expression. Peel, 238 F.3d at 395. 

C. KB Home’s Plan H-3288-R1 Design and Plan H-2334-R3 Design are Not

Entitled to Copyright Protection

Defendants contend that KB Home’s Plans H-3288-R1 and H-2334-R3 are not entitled to

copyright protection, as plans published prior to March 1989 without notice of copyright are not

 

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To establish ownership of copyright in work published prior to March 1, 1989, the claimant must

show that the work was published with adequate notice of copyright. 17 U.S.C. § 10 (1976 ed.) (“Any person

entitled thereto by this title may secure copyright for his work by publication thereof with the notice of

copyright [.]”); see also 17 U.S.C. § 405(a) (stating notice requirements for works published before the

effective date of the Berne Convention Implementation Act of 1988). On March 1, 1989, the United States’

adherence to the Berne Convention abolished affixation of notice as a statutory requirement for securing

copyright. The Berne Convention Implementation Act of 1988, Pub.L. No. 100-568, 102 Stat. 2853 § 7

(1988) (effective March 1, 1989); 17 U.S.C. § 401(a) (“[A] notice of copyright may be placed on publicly

distributed copies[.]”) (emphasis added). 

4

Plaintiff maintains that, although it concedes that these plans are precluded from copyright

protection, the striking similarity of these plans to Defendants’ corresponding designs is “relevant evidence

that Defendants had access to KB Home’s remaining copyrighted designs and did not independently create

the four designs that are still at issue.” Plaintiff’s Response at 15. The court makes no ruling at this time as

to the relevance of this evidence with respect to issues that remain for trial.

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entitled to such protection.3 KB Home concedes that these plans are precluded from copyright

protection, and therefore they do not oppose summary judgment as to these plans.4 Plaintiff’s

Response at 15. Accordingly, there is no genuine issue of material fact with respect to whether these

plans are entitled to copyright protection. Defendants are therefore entitled to judgment as a matter

of law regarding claims related to KB Home’s Plan H-3288-R1 Design and Plan H-2334-R3 Design.

D. Plaintiff’s Infringement Claim 

The parties do not dispute that KB Home has a valid copyright to the remaining four designs.

The issue to be decided, therefore, is whether Defendants copied constituent elements of the KB

Home’s designs that are original. To establish this element, KB Home must prove factual copying

and substantial similarity. See Bridgmon, 325 F.3d at 576. For the reasons set out below, the court

determines that KB Home has raised a genuine issue of material fact that Defendants copied

elements of their home designs that would preclude summary judgment.

 

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1. Copying

Factual copying may be inferred from proof that: (1) the defendant had access to the

copyrighted work prior to creation of the infringing work; and (2) probative similarity. See Peel,

238 F.3d at 394.

a. Access

Defendants assert that there is no evidence that they copied any of the plans in question, and

specifically contend that there is no evidence that they had access to KB Home’s Plan 240.2693,

because it was created after Formby was terminated. Defendants state:

The earliest evidence of the existence of a drawing for KB plan 2693

is September 9, 1999 in the form of a blueprint. The earliest evidence

of the existence of a drawing of Antares Plan 2743 is sometime in

October 1999, in the form of a blueprint. There is no evidence that

any defendant had access to KB Plan 2693 between September and

October of 1999, thus there is no evidence that Antares had access to

KB plan 2693 prior to the creation of Antares plan 2743.

Defendant’s Brief at 22 (footnotes omitted). Plaintiff maintains, however, that there is a disputed

fact as to Defendants’ access to KB Home’s Plan 240.2693, as there is a “reasonable possibility” that

Defendants had access. Plaintiff asserts, therefore, that this issue should be decided by a jury.

Plaintiff’s Response at 16. 

To determine access, the court considers whether the person who

created the allegedly infringing work had a reasonable opportunity to

view the copyrighted work. A bare possibility will not suffice;

neither will a finding of access based on speculation or conjecture.

In this court, “[i]f the two works are so strikingly similar as to

preclude the possibility of independent creation, ‘copying’ may be

proved without a showing of access.”

 

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Peel, 238 F.3d at 394-95 (quoting Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 113 (5th Cir. 1978))

(emphasis in original).

 The court determines that Plaintiff has raised a genuine issue of material fact that Formby

had access to the copyrighted designs prior to creation of the alleged infringing work. Plaintiff’s

summary judgment evidence shows that Formby worked for KB Home from March 1, 1997, to

September 30, 1998. During that period, Formby had access to the KB Home’s designs. After he

was terminated, Formby established his own company within a few months, and began building

houses that are arguably substantially similar to KB Home’s designs. Formby also admits in his

deposition that he visited KB Home models and took their brochures after he established Antares

Homes. Plaintiff’s App. at 186-88. Plaintiff, therefore, has presented evidence of factual copying

by establishing, through circumstantial evidence, that Formby had access to the copyrighted work

prior to creation of the alleged infringing work.

Regarding KB Home’s Plan 240.2693, Plaintiff has presented evidence that the plan existed

in schematic form before the detailed construction drawings of September 9, 1999; and that it

existed before Defendants’ alleged infringing design that was created in October 1999. A reasonable

person could infer that because of Formby’s position with KB Home, he had access to this plan in

some form prior to his termination. Further, as KB Home correctly points out, copying may be

proved without showing access, if the two works are so strikingly similar as to preclude the

possibility of independent creation. See Peel, 238 F.3d at 395. Plaintiff presents evidence to show

that the plans are not just similar, but that they are allegedly identical. Plaintiff’s Response at 22-

23. Plaintiff has thus presented evidence to raise a fact question regarding factual copying with

respect to KB Home’s Plan 240.2693.

 

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b. Probative Similarity 

Probative similarity “requires only that certain parts of the two works are similar, such that

the jury may infer factual copying in light of the defendant’s access to the plaintiff’s work.” Positive

Black Talk Inc., 394 F.3d at 369.

[A] jury may find that two works are probatively similar if it finds

any similarities between the two works (whether substantial or not)

that, in the normal course of events, would not be expected to arise

independently in the two works and that therefore might suggest that

the defendant copied part of the plaintiff's work. 

Id. at 370. The court determines that Plaintiff has presented evidence of probative similarity to

defeat summary judgment. As more fully discussed in Section II(D)(2), infra, Plaintiff has presented

competent summary judgment evidence of the similarities of Plaintiff’s and Defendants’ home

designs to raise a genuine issue of material fact that the designs have probative similarity.

Specifically, because of Defendants’ access to KB Home’s designs, and the similarities between the

floor plans, a reasonable jury could find that the similarities did not arise independently, but because

Defendants copied part of Plaintiff’s work.

c. Independent Creation

A defendant can rebut an inference of factual copying if he can prove that he independently

created the work. Peel, 238 F.3d at 398. Defendants make no specific argument, or point to any

specific evidence of independent creation, other than their contentions that the home designs are not

substantially similar or virtually identical. As the court has determined that there is a genuine issue

of material fact as to factual copying and substantial similarity, there is also a genuine issue of

material fact regarding independent creation. 

 

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2. Substantial Similarity

If a plaintiff establishes factual copying (and the defendant does not establish independent

creation), the plaintiff must also prove that the copyrighted work and the allegedly infringing work

are substantially similar. Bridgmon, 325 F.3d at 576. This essential element of an infringement

claim is defined as “copying of constituent elements of the work that are original.” Peel, 238 F.3d

at 398 (quoting Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). A sideby-side comparison between the original and the copy is required to determine whether a layman

would view the two works as substantially similar. Bridgmon, 325 F.3d at 576-77.

Defendants contend that sufficient differences exist between their plans and KB Home’s

plans to support summary judgment in their favor. Defendants maintain that in assessing the

similarity between the plans, the court should use the standard established by the Eleventh Circuit

that the plans must have the following identical or nearly identical elements: (1) layouts, placement

and room dimensions; (2) outside appearances; (3) placement, types, and sizes of windows and

doors; and (4) placement of fixtures. See Mitek Holdings, Inc. v. Arce Eng’g Co., Inc., 89 F.3d

1548, 1558-59 (11th Cir. 1996); Howard v. Sterchi, 974 F.2d 1272, 1275-76 (11th Cir. 1992).

Alternatively, Defendants contend that even if the substantial similarity test is used and not the

nearly identical test, their plans are still sufficiently different from the KB Home’s plans to warrant

a finding of non-infringement as a matter of law. Defendants’ Brief at 19. 

KB Home responds that Defendants’ designs are substantially and strikingly similar to their

designs; and that the many similarities “create a disputed issue of fact regarding ‘substantial

similarity.’” Plaintiff’s Response at 12. KB Home further maintains that the Eleventh Circuit

standard is inapplicable in the Fifth Circuit for copyright infringement cases, and that the appropriate

 

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On October 5, 2005, United States Magistrate Judge Paul D. Stickney granted Plaintiff’s Motion to

Exclude the Reports and Testimony of Defendants’ Expert Witness Jack P. Friedman. The magistrate judge

determined that Friedman’s proposed testimony “is not based on sound scientific principles, would invade

the province of the jury, and would not reasonably assist the jury’s deliberation.” The magistrate judge also

granted in part and denied in part Plaintiff’s Motion to Strike and Exclude the Opinion of Defendants’ Expert

Witness Jim W. Sealy. The magistrate judge determined that Sealy is permitted to testify; however, he cannot

“testify as to what constitutes the law pertaining to copying because this testimony would invade the province

of the Court.” Docket No. 64. Accordingly, the court did not consider those excluded expert reports in this

opinion and order. Defendants did not file objections to the magistrate judge’s ruling within 10 days pursuant

to Fed. R. Civ. P. 72. 

6

On October 5, 2005, United States Magistrate Judge Paul D. Stickney granted Defendants’ Motion

to Exclude Expert Testimony and Opinion of Phillip M. Hove. The magistrate judge determined that Hove’s

“proposed testimony is not based on sound scientific principles, would invade the province of the jury, and

would not reasonably assist the jury’s deliberation.” Docket No. 64. Accordingly, the court did not consider

this excluded expert report in this opinion and order. Plaintiff did not file objections to the magistrate judge’s

ruling within 10 days pursuant to Fed. R. Civ. P. 72. 

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standard of “‘substantial similarity of ideas and expression’” should typically be left to the fact

finder. Id. at 7 (citing Peel, 238 F.3d at 395). The court agrees that the Eleventh Circuit standard

is inapplicable here. 

In their brief, Defendants present 14 pages of comparisons of its plans and those of KB

Home, contending that there are sufficient differences to support summary judgment in their favor.

Differences include shelf width, window design, door swing direction, closet size, ceiling type, room

location and room dimension. Some of the dimension differences are a matter of inches, and others

a matter of feet. Likewise, Defendants’ appendix contains approximately 300 pages of architectural

designs and experts reports5

 in support of their motion. 

Plaintiff has submitted in excess of 150 pages of architectural designs to support its

contention that the plans are substantially similar, along with their expert reports.6 Plaintiff also

presented transparency overlays of Antares designs on their designs, as evidence of substantial

similarity. The court concludes that the overwhelming evidence from both sides presents a classic

 

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question of fact for the fact finder. Reasonable minds, particularly minds of reasonable laypersons,

could differ as to whether the designs are substantially similar. In light of Plaintiff’s summary

judgment evidence, and drawing all inferences in Plaintiff’s favor, the court determines that a

reasonable juror could find substantial similarity of the home designs. See Peel, 238 F.3d at 395.

Thus Plaintiff has raised a genuine issue of material fact that Defendants’ home designs are

substantially similar to their home designs. Such evidence precludes summary judgment. 

III. Conclusion

For the reasons stated herein, a genuine issue of material fact exists with respect to factual

copying by Defendants, and substantial similarity between the Antares Plans and the KB Home Plan

H-2871-R1 Design, Plan H-3265-R1 Design, Plan 240.2162.A2R Design, and Plan 240.2693

Design. The court denies Defendants’ Motion for Summary Judgment as to these four plans, and

this action, unless resolved by the parties, will proceed to trial on these plans. The court grants

Defendants’ Motion for Summary Judgment as to KB Home’s Plan H-3288-R1 Design and Plan H2334-R3 Design, and dismisses with prejudice all claims related to these two plans. 

In light of this opinion, the court directs the parties to inform it in writing, on or before

January 12, 2006, whether they believe a second mediation is in order and, if so, the date when

such mediation can occur. Once the court receives this information, it will issue a new scheduling

order as to pretrial and trial matters. 

 

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It is so ordered this 29th day of December, 2005.

_________________________________

Sam A. Lindsay

 United States District Judge

 

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