UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PINNACLE ALLIANCE GROUP, 

LLC, a Washington limited 

liability company, 

Plaintiff, 

v. 

EUGENE DIVISION 

AMBIENT ARCHITECTURE LLC dba 

ASCENT ARCHITECTURE AND INTERIORS, 

an Oregon limited liability company, 

SETH E. ANDERSON, an Oregon citizen, 

and KRISTA APPLEBY, an Oregon citizen, 

Defendants. 

JEFFREY M. EDELSON 

Markowitz Herbold PC 

1211 SW Fifth Ave. Suite 3000 

Portland, OR 97204-3730 

Attorney for Plaintiff 

ROGER A. LENNEBERG 

DAVID H. BROWER 

Jordan Ramis PC 

Two Centerpointe Dr. 6th Floor 

Lake Oswego, OR 97035 

Attorneys for De£eridant; 

Case No. 6:15-cv-451-AA 

OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 1 of 21
AIKEN, Chief Judge: 

Pinnacle Alliance Group, LLC ("plaintiff") brings this action 

for copyright infringement against Ambient Architecture LLC dba 

Ascent Architecture and Interiors, Seth E. Anderson, and Krista 

Appleby ("defendants"). Defendants move to dismiss the complaint 

for failure to state a claim upon which relief can be granted 

pursuant to Fed.R.Civ.P. 12 (b) (6). For the reasons that follow, 

defendant's motion is denied. 

BACKGROUND 

Plaintiff is a Washington-based company who hired an 

architecture firm to prepare plans for a senior housing facility 

planned for Sisters, Oregon on McKinney Butte Road ("Site") . 

Plaintiff's Second Amended Complaint ("Pl.'s Compl. ") , <[<[ 1, 6. 

Plaintiff owns the full rights to the plans in question. Id. The 

plans are registered by the United States Copyright Office as 

"archi teet ural work" and "technical drawings." Pl.'s Compl. <[8. The 

U.S. Copyright Office's certificates for the plans are dated 

February 24, 2015, with first publication on April 3, 2012. Id. 

Defendants are an Oregon limited liability company with 

offices in Bend, Oregon, as well as two of its employees. Defendant 

Anderson is the principal architect for the company, while 

defendant Appleby is the project archi teet for the Site. Pl.'s 

Compl. <[<[ 2, 3, 4. 

Plaintiff "lost its opportunity" to proceed with the project 

Page 2 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 2 of 21
in August 2013. Pl.'s Compl. ~12. Plaintiff alleges that defendants 

were provided plaintiff's plans prior to groundbreaking for the 

project. Pl.'s Compl. ~13. Later, defendants prepared plans for the 

project Site. Pl.'s Compl. ~14. Plaintiff contends that the 

defendants' plans "are substantially similar to and clearly derived 

from" plaintiff's original plans such that they constitute 

infringement in violation of the Copyright Act, 17 U.S.C. § 501. 

Id., ~18. 

STANDARD 

Under Fed.R.Civ.P. 12(b) (6), a complaint is construed in favor of 

the plaintiff, and its factual allegations are taken as true. 

Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 

2010). "[F]or a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that 

content, must be plausibly suggestive of a claim entitling the 

plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 

962, 969 (9th Cir. 2009). "A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the 

misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 680-81 

(2009). "[O]nce a claim has been stated adequately, it may be 

supported by showing any set of facts consistent with the 

allegations in the complaint." Bell Atlantic Corp. V. Twombly, 550 

u.s. 544, 563 (2007). 

Page 3 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 3 of 21
When considering a 12 (b) ( 6) motion, the scope of review is 

generally limited to the parties' pleadings (the complaint and 

answer.) See, e.g., Lee v. City of L.A., 250 F. 3d 668, 688 (9th 

Cir. 2001). However, a court may consider materials that are 

attached to the complaint and materials upon which the plaintiff's 

case necessarily relies, assuming the authenticity of the documents 

is not in question, and there are no disputed issues as to the 

documents' relevance. Coto Settlement v. Eisenberg, 593 F.3d 1031, 

1038 (9th Cir. 2010). In copyright infringement cases, the works 

themselves may be incorporated by reference into the complaint. 

Erickson, 839 F.Supp.2d at 1135; see also Peter F. Gaito 

Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 

2010) ("[i]n copyright infringement actions, the works themselves 

supersede and control contrary descriptions of them, including any 

contrary allegations, conclusions or descriptions of the works 

contained in the pleadings") (citations and internal quotations 

omitted) . 

DISCUSSION 

I. The Pleadings 

Attached to plaintiff's Second Amended Complaint are two 

Exhibits. Exhibit A contains 35 pages of architectural plans and 

diagrams which are purportedly plaintiff's copyrighted plans for 

the Site. Pl.'s Compl. ~10. Exhibit B consists of eight pages of 

architectural plans and diagrams which are purportedly defendants' 

infringingplans for Site. Id. at ~15. Defendants do not question 

Page 4 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 4 of 21
the authenticity or relevance of Exhibits A and B. Accordingly, the 

exhibits are incorporated by reference. Coto Settlement, 593 F.3d 

at 1038. 

Defendants' Memorandum in Support of,its motion includes four 

exhibits, purportedly architectural plans and diagrams of both of 

plaintiff's and defendants' designs for the Site. However, 

defendants' inclusion of the plans goes outside of the pleadings, 

and the court therefore declines to consider them. Exhibits A and 

B, as incorporated by the Second Amended Complaint, are sufficient 

representations of the works at issue. 

In addition to an opposition to defendants' motion, plaintiff 

submitted declarations of Donald A. Crosby and Mark Adolf, with six 

corresponding exhibits. These declarations and exhibits go beyond 

the pleadings. Moreover, defendants dispute the relevance of the 

declarations. Thus, the court similarly declines to consider 

plaintiff's declarations and accompanying exhibits. 

Settlement, 593 F.3d at 1038; Apple Computer, Inc. v. Microsoft 

Corp., 35 F.3d 1435, 1443 (9th Cir. 1994) ( [u] sing analytic 

dissection, and, if necessary, expert testimony, the court must 

determine whether any allegedly similar features are protected by 

copyright) (emphasis added). To the extent plaintiff references the 

declarations and exhibits in its arguments relative to the instant 

motion, the court will refer to Exhibits A and B as incorporated by 

Plaintiff's Second Amended Complaint. 

Page 5 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 5 of 21
II. Copyright Infringement 

Copyright protection exists in order to preserve an author's 

rights to original works of expression. See 17 U.S.C. § 102(a). In 

order to establish copyright infringement, plaintiff must prove (1) 

ownership of the copyright; and (2) copying by defendants of "the 

constituent elements of the work that are original." Feist Publ'ns, 

Inc. V. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). 

Plaintiff's ownership of the copyright is not disputed. To prove 

that defendants copied the work at issue, plaintiff may rely on 

circumstantial evidence that ( 1) defendants had access to the 

copyrighted work; and (2) there is a substantial similarity between 

the copyrighted work and defendants' work. Sid & Marty Krofft 

Television Prods. Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 

(9th Cir. 1977). Plaintiff has alleged facts that could establish 

defendants had access to the copyrighted material. Thus, the 

remaining question before the court is whether the complaint states 

a plausible claim that the copyrighted work and the allegedly 

infringing work are substantially similar. 

Substantial similarity is established by demonstrating that 

the alleged infringing work is both objectively (extrinsically) and 

subjectively (intrinsically) similar to the copyrighted work. Id.; 

see also Erickson v. Blake, 839 F.Supp.2d 1132, 1135 (D.Or. March 

14, 2012). While the subjective/intrinsic test is typically 

reserved for a jury, the objective/extrinsic test may be decided as 

Page 6 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 6 of 21
a matter of law. Id. at 1135-36 (citations omitted). The extrinsic 

test involves analytically dissecting the works at issue to 

evaluate similarities on an element-by-element basis. Apple 

Computer, 35 F.3d at 1443. 

Even when a work is protected by copyright certification, not 

every individual element of the work is necessarily protected. 

Feist, 499 U.S. at 348. Rather, copyright protection extends only 

to the "components of a work that are original to the author." Id. 

Therefore, in undertaking an element-by-element comparative 

analysis of two works, the court must distinguish between protected 

and non-protected elements. Apple Computer, 35 F. 3d at 14 4 3. 

Unprotected elements of a copyrighted work may include: 

(1) ideas (as opposed to the expression of ideas); 

(2) expressions that are indistinguishable from ideas; 

(3) standard or stock elements; or 

(4) facts and other public information. 

Erickson, 839 F.Supp.2d at 1136. 

Perhaps the most important, and most challenging, aspect of 

determining whether infringement has occurred is that a copyright 

protects only the expression of ideas, not the ideas themselves. 17 

U.S.C. § 102(b) ("In no case does copyright protection for an 

original work of authorship extend to any idea, procedure, process, 

system, method of operation, concept, principle, or discovery[.]"). 

Additionally, when a non-protectable idea can only be expressed in 

Page 7 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 7 of 21
one manner, the resulting expression is not protected by copyright, 

because the expression is essentially indistinguishable from the 

underlying idea. Erickson, 839 F.Supp.2d at 1137 (citing CDN v. 

Kapes, 197 F. 3d 1256, 1261 (9th Cir. 1999)). Expressions that are 

standard, stock, or common elements of architectural design may not 

be protectable in isolation, but may be protectable when 

constituent standard elements are arranged in novel ways. Satava v. 

Lowry, 323 F.3d 805, 810 (9th cir. 2003); see also Zalewski v. 

Cicero Builder Dev., Inc., 754 F. 3d 95, 103-04 (2nd Cir. 2014) 

(architectural designs "like the Guggenheim, will include standard 

features, but also present something entirely new"). 

After the court has identified which of the alleged 

similarities relate to unprotected elements, it can determine the 

appropriate scope of the copyright. Erickson, 839 F.Supp.2d at 1138 

(citing Apple Computer, 35 F.3d at 1443). "If few similarities 

remain after the unprotected elements are set aside . . . the scope 

of the copyright is 'thin,' which means that it only protects the 

copyrighted work from virtually identical copying." 

Alternatively, "[i]f many of the similarities relate to protected 

elements . then the scope of the copyright is 'broad,'" such 

that it is "easier" to demonstrate that two works are substantially 

similar. Id. 

II 

II 

Page 8 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 8 of 21
III. Evaluation of the Instant Plans 

A. Scope of Protection 

Plaintiff argues that the scope of protection for their 

footprint is broad, because "[l]arger, more complex buildings . 

. receive greater protection than simple structures." Pl.'s Br. 20 

(citing Ronald Mayotte & Assoc. v. MGC Building Co., 885 F.Supp. 

148, 153 (E.D.Mich. 1994)). The court disagrees with plaintiff that 

the size of a structure is a factor in the breadth of copyright 

protection; however, complexity is often a factor, as complex 

designs allow for more opportunity for an architect to create 

original expressions. Indeed, simple structures, such as a singleroom log cabin, will include standard features presented in a 

standard manner, whereas an architectural work such as the 

Guggenheim Museum is a complex amalgamation of standard and novel 

features, arranged in unique ways. See Zalewski, 754 F.3d at 103-

04. 

Initially, the court notes obvious similarities between the 

structures designed by the parties. For example, plaintiff's front 

elevation drawings depict a wide, single-story structure, topped 

with several gabled roofs, with the largest gable at the center 

above the main entrance, which itself is covered by a port 

cochere. 1 Ex. A-1,21. Similarly, defendants' design depicts a wide, 

1 A porte cochere is defined as "a roofed structure 

extending from the entrance of a building over an adjecent 

driveway and sheltering those getting in or out of vehicles." 

Page 9 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 9 of 21
single-story structure, also topped by a number of gabled roofs, 

th~ largest at the center over the main entrance, which is also 

covered by a port cochere. Ex. B-6,7. However, the front elevations 

are not identical; there are differences in the relative size of 

the gabled rooftops, the orientation of the center gables, and the 

locations and sizes of windows along the front of the structures. 

However, plaintiff does not take issue with the similarities 

described above in its response. Rather, the crux of plaintiff's 

argument is the alleged similarity between the two architectural 

"footprints." Exhibit A includes various versions of plaintiff's 

Site footprint, which consists of five symmetrical wings (or "pods" 

per the parties' parlance) connected by corridors. Ex. A2,4,6,16,28. The central pod includes the entrance area, two pods 

on either side sandwich the central pod and connect to it via a 

wide but short hallway or passthrough, and the two outside pods 

then connect to the middle pods, each by narrow corridors. Id. 

Other characteristics of the plaintiff's footprint are the central 

pod is shorter than the other 4 pods, and the outer pods each have 

their own "hammerheads" at the top and bottom that extend away from 

the center of the structure. Id. Plaintiff describes the shape of 

its footprint as that of a "starship:" "[plaintiff's] design is . 

original in that the 5-pod layout arranges the pods so that 

Merriam-Webster Dictionary, available at 

http://www.merriam-webster.com/dictionary/porte%20cochere (last 

visited September 8, 2015). 

Page 10 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 10 of 21
they are adjacent and roughly parallel ... there is no doubt that 

[the] arrangement is a nov~l and highly expressive motif." Pl.'s 

Br. 19. 

Defendants' footprint plan is included in Exhibit B. Ex. B1,4,8. Defendants' design consists of pods arranged in a similar 

way, with a central pod sandwiched between to middle pods, and then 

an outer pod, each interconnected by corridors. Id. The footprint 

appears to be oriented on the Site relative to McKinney Butte Road 

in the same direction and roughly the same location as plaintiff's 

footprint. Notably, the plans incorporated into the complaint show 

that defendants' plans appear to include only four pods. Id. 

However, plaintiff contends that defendants' design will ultimately 

include five pods at an unspecified time the future, a point 

defendants do not contest. 2 Defs.' Reply 8. Construing the issue in 

favor of plaintiff and assuming the factual allegation is true, the 

court finds for this motion that defendants' design indeed includes 

five pods. Additionally, the court accepts as true plaintiff's 

contention that the widths of the footprints are identical when 

measured from the center of the outer pods; and that the pods, 

though different shape and size, are situated at essentially the 

same location on the Site. Pl.'s Br. 3, 17. 

2 The court notes that careful inspection of Exhibit B-8 

reveals what may be the very faint outline of a fifth pod in 

defendants' design. 

Page 11 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 11 of 21
Plaintiff posits 

footprint make it the 

the design 

"Guggenheim" 

motif of its architectural 

of 

Pl.'s Br. 21. The court agrees that 

senior living facilities. 

plaintiff's design shows 

complexity. Rather than a single rectangular building, the plan 

includes the five aforementioned pods. The placement of the pods on 

the Site is symmetrical, an arrangement which is arguably an 

original expression. Hallways connect the pods, which are also 

symmetrical. The outside pods have "hammerheads" which provide 

further symmetry, and depart from the simple box-like shape of many 

buildings. Indeed, the outside pods connect to the central pods in 

a fashion reminiscent, in plaintiff's view, of a "starship." Pl.'s 

Br. 19. 

Defendants contend that "naming a simple arrangement of five 

rectangular buildings connected by corridors a 'starship' or some 

other fanciful term does not make a simple arrangement 

protectable." Defs.' Reply 2. The court agrees that denoting the 

design a "starship" is irrelevant to copyright protection. However, 

defendants err in arguing that an arrangement of standard shaped 

buildings is not protectable; as noted supra, it is a basic tenet 

of copyright law that even standard components, when arranged in a 

unique way, may warrant protection. See Zalewski, 754 F.3d at 104 

("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."). 

Page 12 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 12 of 21
Defendants further argue that plaintiff "fails to identify 

any precedent that a simple two-dimensional figure, comprised of 

basic shapes, can be sufficient in and of itself for copyright 

protection of architectural works." Defs.' Reply 2. Essentially, 

defendants contend that plainti£f's architectural footprint is not 

protectable because it is a "simple geometric shape." However, 

defendants' opening brief explains "[p] lain tiff's plan is very 

proportional and symmetrical with connection near the center 

[whereas] [d] efendants' plan calls for a more odd shape that has 

multiple protrusions and indentions [sic] the protected 

expressions are just substantially different." Defs.' Br. 15 

(emphasis added) The court understands that the arguments are 

aimed at different aspects of copyright law (i.e. originality 

versus copying), but defendants cannot persuasively argue that the 

"starship" design is a simple, unprotectable geometric shape while 

simultaneously contending the footprints represent substantially 

different, protectable, expressions. 

Moreover, defendants' reliance on Oravec v. Sunny Isles Luxury 

Ventures, L.C., 469 F.Supp.2d 1148 (S.D.Fla. 2006) is unavailing. 

Defendants argue Oravec supports its contention that plaintiff's 

design is not protectable because "copyright will not protect the 

mere idea of a convex/concave building, any more than it would 

protect the idea of an arch or dome or tower." Id. at 1165. 

Defendants, despite quoting the entire passage, fail to track the 

Page 13 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 13 of 21
remainder of the court's analysis, which explains "this does not 

mean that the particularized expression of a dome, arch, or tower 

cannot be protected within the context of a particular 

design." Id. While the concept of an arch, dome, or tower cannot be 

protected, the particular expression of an arch, dome, or tower can 

be protected so long as it is an original expression. Id. 

Accordingly, Oravec held that the plaintiff's expression of concave 

and convex portions of its architecture were protectable due to 

their unique "concrete manifestations." 3 Id. 

As in Oravec, plaintiff's design consists of non-protectable 

elements: ( 1) a series of buildings; ( 2) buildings of rectangular 

shape; ( 3) connecting corridors · between buildings; and ( 4) a 

symmetrical layout. Like Oravec, the particular pieces of the 

design are not individually unique; however, when the components 

are arranged in a novel fashion, in this case the "starship" 

design, the manner of the arrangement is arguably protectable. 

Defendants contend that the "starship" design is a simple geometric 

shape, presumably along the lines of a circle, rectangle, · or 

octagon, as discussed in Oravec. Id. Plaintiff's "starship" is cnot 

a simple or standard shape, but rather the result of a combination 

3 Although the court found the concave/convex concepts 

protectable as expressed, it nonetheless found no substantial 

similarity in designs, as "the similarities between the competing 

designs exists only at a conceptual level." Id. at 1172. These 

findings were upheld on appeal. See Oravec v. Sunny Isles Luxury 

Ventures, L.C., 527 F.3d 1218 (11th Cir. 2008). 

Page 14 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 14 of 21
of geometric elements. The "starship" design, contrary to 

defendants' argument, is roughly the equivalent of the integration 

of non-protectable shapes that were found to be protectable in 

Oravec. 

The parties disagree as to whether a building footprint is per 

se protectable. Plaintiff's contention that Nelson-Salabes, Inc. v. 

Morningside Dev., LLC, 284 F.3d 505 (4th Cir. 2002) stands for the 

proposition that an "assisted care facility's footprint is 

protected" is inaccurate. Pl.'s Br. 3. The district court decision 

underlying the damages awarded in Nelson-Salabes found that the 

building footprint, along with other distinctive elements, created 

a unique design. Nelson-Salabes, Inc. v. Morningside Dev. LLC, 

available at 2001 WL 419002, *4. Nonetheless, defendants' 

contention that Nelson-Salabes "holds that the footprint is not 

protectable and needs to be combined with other elements" is also 

inaccurate. Defs.' Reply 5. The district court did not rule on 

whether the footprint alone was protectable; instead, it found that 

"bay windows" and an "octagonal entrance" were not individually 

protectable, and that the combination of elements, including the 

footprint, was protectable. See id. This case does not offer any 

conclusion regarding whether a footprint is protectable. 

The parties' opposing interpretations of Sparaco v. Lawler, 

Matusky, Skelly, Engineers LLP, 303 F.3d 460 (2nd Cir. 2002) are 

similarly inapposite. The court agrees with defendants that the 

Page 15 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 15 of 21
case does not hold that a building footprint is protected. Pl.'s 

Br. 9. However, defendants' argument that the case supports the 

proposition that "general indications of shape and placement" were 

not protected is also inaccurate. Defs.' Reply 6. Sparaco .held that 

a plan for the preparation of a site was protectable because it 

included sufficiently specific expressions of components, including 

building footprint, parking lots, elevation renderings, and 

landscaping. See id. at 469. As in Oravec, the Sparaco made no 

specific findings regarding the protectability of building 

footprints alone. 

The court further agrees that the additional cases plaintiff 

proffers in support of its contention that "footprints are 

protected" are not dispositive. In Bruemmer v. Reardon, available 

at 2012 WL 5989355, *7 (W.D.Mich. November 29, 2012), the court 

found that "similarities in the footprint, the roof lines, and the 

room layouts" presented an issue of material fact in a summary 

judgment motion. Id. The court's finding, therefore, was focused 

primarily on substantial similarity rather than unique expression. 

However, to the extent the court found that the similarity in the 

footprints created an issue of material fact, it follows that some 

aspect of the original footprint was a unique expression which was 

allegedly copied, and therefore must have been protectable. Id. The 

other cases relied on by plaintiff similarly do not stand for the 

proposition that footprints are necessarily protected. See Pl.'s 

Page 16 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 16 of 21
Br. 9. 

The key inquiry for copyright protection is whether an element 

of a work is sufficiently attributable to its designer based on its 

unique expression, even if the expression is the unique arrangement 

of standard elements. Zalewski, 753 F.3d at 103-04. As noted above, 

it appears that defendants appear to agree plaintiff's footprint 

design is composed of at least some "protected expressions." Defs.' 

Br. 15. Moreover, contrary to defendants' assertion, plaintiff's 

plan is not merely an outline, but rather includes many other 

details pertaining to the interior makeup of the proposed 

retirement center, including floor plans, parking, and landscape 

features. Ex. B-4,5,6,7,8; see also Sparaco, 303 F.3d at 468-69. 

Further, when analyzing the scope of copyright protection for 

architectural plans or works, courts have also evaluated external 

factors that may impact a design. Zalewski cexplained that "design 

elements attributable to building codes, topography, structures 

that already exist on the construction site, or engineering 

necessity" should not be protectable for policy reasons. Zalewski, 

754 F.3d at 105. Additionally, recognizable styles of architecture 

(e.g. neoclassical government structures, American Craftsman 

bungalow homes) contain characteristic elements and characteristic 

element arrangements that, due to market expectations and ubiquity, 

do not warrant protection. See id. at 105; see also Gaito, 602 F.3d 

at 55. The rationale is that when external constraints dictate 

Page 17 -OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 17 of 21
certain expression of elements, those expressions cannot be said to 

originate with the architect, and therefore are not protectable. 17 

U.S.C. § 102(a) (copyright law protects only aspects of a work that 

originate with the author) . Thus, where there are few external 

constraints on an architectural work, the protection for the work 

will be broader. See Apple Computer, 35 F.3d at 1442-43; see also 

Erickson, 839 F.Supp.2d at 1138. Alternatively, where an 

architectural work is constrained by virtue of its particular 

style, geography, or municipal regulations, the protection will be 

thinner. Id. 

Here, there are few external constraints on plaintiff's 

design. Defendants do not dispute plaintiff's assertion that there 

are no topographical constraints which would require defendants to 

place their footprint virtually on the identical location of the 

Site. Pl.'s Br. 17. Defendants have not alleged that the building 

footprint, or any other feature, has been substantially affected by 

municipal building codes. Similarly, the parties have not argued 

that preexisting structures are an issue. 

With regard to the architectural style depicted in the plans, 

defendants do not contend that there are particular market 

expectations for how a retirement center should look or feel, or 

that have influenced their design. Nor do defendants argue that the 

architectural plans are burdened by any architectural style 

requirements. Essentially, defendants have not presented any 

Page 18 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 18 of 21
cognizable argument supporting a thin scope of copyright protection 

due to external constraints of the Site. 

For these reasons, the scope of protection for plaintiff's 

design is broad, and plaintiff has provided a plausible claim that 

its design, and particularly the architectural footprint element, 

is worthy of copyright protection. There may yet be other elements 

of plaintiff's design that also warrant protection; however, for 

purposes of the instant motion, the court need not address every 

possible protectable element. 

B. Copying 

As described above, the parties' plans include a number of 

similarities and differences. Perhaps the most striking 

similarities are seen in the parties' architectural footprint 

designs (five roughly symmetrical pods connected by corridors) and 

nearly identical placement upon the Site. Nonetheless, there are 

differences between the designs, also explained herein. For 

example, plaintiff's outside pods have "hammerhead" shapes, while 

defendants' outer pods do not. The pods do not share precisely the 

same outline, though both are roughly rectangular, nor are they 

exactly the same size ~plaintiff's design shows slightly longer 

and wider pods. Additionally, the center pod containing the main 

entrance is relatively larger in defendants' design. Even so, the 

width of the footprints, aside from the hammerheads, is virtually 

identical. Moreover, the overall look and feel of the two footprint 

Page '19 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 19 of 21
designs are similar, even though defendants' is not as symmetrical. 

Compare Ex. A-2 to Ex. B-8; see also Pl.'s Br. 3. 

As discussed, plaintiff has provided an adequate showing that 

their "starship" footprint is more than a simple geometric shape; 

it is complex and arguably original, and therefore plausibly 

protectable. The scope of protection for plaintiff's design is, 

therefore, broad; accordingly, the designs need not be virtually 

identical in order to plausibly deserve protection. Few external 

constraints affect the footprint design or placement, further 

supporting broad protection. Thus, to the extent defendants' design 

strongly resembles elements of plaintiff's design, including but 

not limited to the "starship" footprint, the court finds plaintiff 

has successfully supported its claim of copyright infringement. The 

court is satisfied the parties' Site plans are 

extrinsically I objectively similar enough to survive defendants' 

motion. 

II 

II 

II 

II 

II 

II 

II 

II 

Page 20 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 20 of 21
CONCLUSION 

Plaintiff has sufficiently stated a plausible claim for 

copyright infringement pursuant to Fed. R. Ci v. P. 12 (b) ( 6) . 

Accordingly, defendants' motion to dismiss is DENIED. 

IT IS SO ORDERED. 

'1'2. w . Dated this~ day of September, 2015. 

Ann Aiken 

United States District Judge 

Page 21 - OPINION AND ORDER 

Case 6:15-cv-00451-AA Document 35 Filed 09/23/15 Page 21 of 21