1 WO 2 3 4 5
9 Biltform Architecture Group Incorporated, No. CV-25-02764-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 BMA Architecture LLC and Brian M Andersen, 13 Defendants. 14 15 Before the Court is Defendants BM Architecture, LLC (“BMA”) and Brian M. 16 Andersen’s Partial Motion to Dismiss (Doc. 17). The Court grants the Motion for the 17 reasons below. 19 This is a copyright case regarding architectural designs. Plaintiff Biltform 20 Architecture Group, Inc.’s (“Biltform”) Complaint alleges as follows. 21 IDM Companies, a real estate developer, hired Biltform to design three apartment 22 complexes: Cooley Station, Estrella Commons, and Canyon Crossroads. (Id. at 3–6.) In 23 2018, IDM and Biltform entered into an Architectural Proposal Agreement for each 24 complex. (Id.) Each Agreement includes an identical provision confirming Biltform’s 25 proprietary ownership of its designs, drawings, documents, and instruments of service 26 (collectively, the “Copyrighted Designs”): 27 Ownership of Documents 28 The Drawings and other documents, as instruments of service, are and shall 1 remain the property of the Architect. They shall not be used on other projects or as the basis for drawings by others without written authorization from the 2 Architect. 3 (Id. at 3, 4, 6.) Biltform registered the Copyrighted Designs as architectural works with 4 the United States Copyright Office (“USCO”) and received a Certificate of Registration 5 effective November 16, 2022. (Id. at 3, 5, 6.) 6 On October 2, 2019, IDM and Biltform entered a Mutual Termination Agreement 7 (“MTA”). The MTA provides: 8 Client may continue to use the Architect’s Instruments of Service solely and 9 exclusively for purposes of constructing, using, maintaining, altering and 10 adding to the Project, and to authorize the general contractor, subcontractors, sub-subcontractors, and supplies, as well as the Client’s other consultants and 11 separate contractors for the Project. Architect will deliver the complete Plans 12 and Specifications in CAD format immediately upon execution of this Agreement. 13 (Id. at 6–7.) Accordingly, Biltform delivered its Copyrighted Designs and specifications 14 in CAD format to IDM for Cooley Station, Canyon Crossroads, and Estrella Commons. 15 (Id. at 7.) 16 Biltform later discovered that IDM used the Copyrighted Designs to construct five 17 separate apartment complexes (the “First Five Complexes”) in Maricopa County. (Id.) 18 The First Five Complexes are designated as: Algodon, Glendale, Val Vista, Eastmark, and 19 Queen Creek. (Id. at 7–8.) 20 In February 2023, Biltform sued IDM for, among other things, copyright 21 infringement (the “IDM Lawsuit”). (Id. at 8.) During the IDM Lawsuit, Biltform 22 discovered that Defendants BMA and Andersen held themselves out as the architects of 23 record for the First Five Complexes. (Id.) Biltform also discovered that IDM used the 24 Copyrighted Designs to construct six more apartment complexes: one in Washington state 25 and five in Arizona (the “Additional Six Complexes”). (Id. at 8–9.) Two of the Additional 26 Six Complexes are designated as: Haagen II, and Estrella II. (Id. at 8.) Defendants also 27 held themselves out as the architects of record for the Additional Six Complexes. (Id. at 9.) 28 Biltform refers to the First Five Complexes and the Additional Six Complexes collectively 1 as the “Infringing Complexes.” (Id. at 9.) 2 Defendants did not perform any material design work on the Infringing Complexes. 3 (Id.) The Infringing Complexes were all “based upon and substantially similar to 4 Biltform’s Copyrighted Designs.” (Id.) Further, Defendants “knowingly obtained the 5 Copyrighted Designs from IDM, replaced Biltform’s name and logo on the designs and 6 plans, and passed off the material portions of the designs and plans for the Infringing 7 Complexes as their own.” (Id.) 8 Biltform also alleges the following infringements. The Algodon agreement between 9 IDM and BMA attached the Copyrighted Designs, and required Algodon to be based upon 10 it. (Id.) For Haagen II, IDM directed Defendant Andersen to “use the Algodon footprints” 11 because it wanted “basically the Algodon buildings as drawn.” (Id.) For Estrella II, IDM 12 expressly directed Defendant Andersen to “use the Algodon/Glendale plans including 13 metal canopies on select buildings.” (Id. at 10.) As to the First Five Complexes, BMA 14 admitted that it utilized the Copyrighted Designs. (Id.) Defendants also represent on 15 BMA’s website that Algodon, Glendale, and Val Vista are “BMA Architecture Projects.” 16 (Id.) 17 Biltform subsequently sued Defendants BMA and Andersen in August 2025. (Doc. 18 1.) Biltform brings three claims: (1) copyright infringement; (2) violation of the Digital 19 Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1201 et seq.; and (3) tortious 20 interference. (Id. at 10–15.) Pursuant to Federal Rule of Civil Procedure 12(b)(6), 21 Defendants move to dismiss Biltform’s DMCA claim. (Doc. 17.) After Defendants filed 22 the present Motion, the Court consolidated this case with the IDM Lawsuit. (Doc. 22.) 24 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 25 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 26 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 27 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 28 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 1 47 (1957)). This notice exists if the pleader sets forth “factual content that allows the court 2 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 4 cause of action, supported by mere conclusory statements, do not suffice.” Id. 5 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 6 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 7 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 8 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 9 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 10 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal 11 “probability,” but requires “more than a sheer possibility that a defendant has acted 12 unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a 13 defendant’s liability, it ‘stops short of the line between possibility and plausibility . . . .’” 14 Id. (quoting Twombly, 550 U.S. at 557). 15 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pleaded factual allegations 16 are taken as true and construed in the light most favorable to the nonmoving party. Cousins 17 v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 18 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 19 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 20 v.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5
9 Biltform Architecture Group Incorporated, No. CV-25-02764-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 BMA Architecture LLC and Brian M Andersen, 13 Defendants. 14 15 Before the Court is Defendants BM Architecture, LLC (“BMA”) and Brian M. 16 Andersen’s Partial Motion to Dismiss (Doc. 17). The Court grants the Motion for the 17 reasons below. 19 This is a copyright case regarding architectural designs. Plaintiff Biltform 20 Architecture Group, Inc.’s (“Biltform”) Complaint alleges as follows. 21 IDM Companies, a real estate developer, hired Biltform to design three apartment 22 complexes: Cooley Station, Estrella Commons, and Canyon Crossroads. (Id. at 3–6.) In 23 2018, IDM and Biltform entered into an Architectural Proposal Agreement for each 24 complex. (Id.) Each Agreement includes an identical provision confirming Biltform’s 25 proprietary ownership of its designs, drawings, documents, and instruments of service 26 (collectively, the “Copyrighted Designs”): 27 Ownership of Documents 28 The Drawings and other documents, as instruments of service, are and shall 1 remain the property of the Architect. They shall not be used on other projects or as the basis for drawings by others without written authorization from the 2 Architect. 3 (Id. at 3, 4, 6.) Biltform registered the Copyrighted Designs as architectural works with 4 the United States Copyright Office (“USCO”) and received a Certificate of Registration 5 effective November 16, 2022. (Id. at 3, 5, 6.) 6 On October 2, 2019, IDM and Biltform entered a Mutual Termination Agreement 7 (“MTA”). The MTA provides: 8 Client may continue to use the Architect’s Instruments of Service solely and 9 exclusively for purposes of constructing, using, maintaining, altering and 10 adding to the Project, and to authorize the general contractor, subcontractors, sub-subcontractors, and supplies, as well as the Client’s other consultants and 11 separate contractors for the Project. Architect will deliver the complete Plans 12 and Specifications in CAD format immediately upon execution of this Agreement. 13 (Id. at 6–7.) Accordingly, Biltform delivered its Copyrighted Designs and specifications 14 in CAD format to IDM for Cooley Station, Canyon Crossroads, and Estrella Commons. 15 (Id. at 7.) 16 Biltform later discovered that IDM used the Copyrighted Designs to construct five 17 separate apartment complexes (the “First Five Complexes”) in Maricopa County. (Id.) 18 The First Five Complexes are designated as: Algodon, Glendale, Val Vista, Eastmark, and 19 Queen Creek. (Id. at 7–8.) 20 In February 2023, Biltform sued IDM for, among other things, copyright 21 infringement (the “IDM Lawsuit”). (Id. at 8.) During the IDM Lawsuit, Biltform 22 discovered that Defendants BMA and Andersen held themselves out as the architects of 23 record for the First Five Complexes. (Id.) Biltform also discovered that IDM used the 24 Copyrighted Designs to construct six more apartment complexes: one in Washington state 25 and five in Arizona (the “Additional Six Complexes”). (Id. at 8–9.) Two of the Additional 26 Six Complexes are designated as: Haagen II, and Estrella II. (Id. at 8.) Defendants also 27 held themselves out as the architects of record for the Additional Six Complexes. (Id. at 9.) 28 Biltform refers to the First Five Complexes and the Additional Six Complexes collectively 1 as the “Infringing Complexes.” (Id. at 9.) 2 Defendants did not perform any material design work on the Infringing Complexes. 3 (Id.) The Infringing Complexes were all “based upon and substantially similar to 4 Biltform’s Copyrighted Designs.” (Id.) Further, Defendants “knowingly obtained the 5 Copyrighted Designs from IDM, replaced Biltform’s name and logo on the designs and 6 plans, and passed off the material portions of the designs and plans for the Infringing 7 Complexes as their own.” (Id.) 8 Biltform also alleges the following infringements. The Algodon agreement between 9 IDM and BMA attached the Copyrighted Designs, and required Algodon to be based upon 10 it. (Id.) For Haagen II, IDM directed Defendant Andersen to “use the Algodon footprints” 11 because it wanted “basically the Algodon buildings as drawn.” (Id.) For Estrella II, IDM 12 expressly directed Defendant Andersen to “use the Algodon/Glendale plans including 13 metal canopies on select buildings.” (Id. at 10.) As to the First Five Complexes, BMA 14 admitted that it utilized the Copyrighted Designs. (Id.) Defendants also represent on 15 BMA’s website that Algodon, Glendale, and Val Vista are “BMA Architecture Projects.” 16 (Id.) 17 Biltform subsequently sued Defendants BMA and Andersen in August 2025. (Doc. 18 1.) Biltform brings three claims: (1) copyright infringement; (2) violation of the Digital 19 Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1201 et seq.; and (3) tortious 20 interference. (Id. at 10–15.) Pursuant to Federal Rule of Civil Procedure 12(b)(6), 21 Defendants move to dismiss Biltform’s DMCA claim. (Doc. 17.) After Defendants filed 22 the present Motion, the Court consolidated this case with the IDM Lawsuit. (Doc. 22.) 24 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 25 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 26 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 27 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 28 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 1 47 (1957)). This notice exists if the pleader sets forth “factual content that allows the court 2 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 4 cause of action, supported by mere conclusory statements, do not suffice.” Id. 5 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 6 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 7 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 8 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 9 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 10 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal 11 “probability,” but requires “more than a sheer possibility that a defendant has acted 12 unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a 13 defendant’s liability, it ‘stops short of the line between possibility and plausibility . . . .’” 14 Id. (quoting Twombly, 550 U.S. at 557). 15 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pleaded factual allegations 16 are taken as true and construed in the light most favorable to the nonmoving party. Cousins 17 v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 18 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 19 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 20 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 21 outside the pleadings when ruling on a Rule 12(b)(6) motion to dismiss. See United States 22 v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider 23 materials—documents attached to the complaint, documents incorporated by reference in 24 the complaint, or matters of judicial notice—without converting the motion to dismiss into 25 a motion for summary judgment.” Id. at 908. 27 The DMCA makes it unlawful to “intentionally remove or alter any copyright 28 management information” “knowing . . . that it will induce, enable, facilitate, or conceal 1 an infringement of any right under this title.” § 1202(b)(1). The DMCA defines copyright 2 management information (“CMI”) to mean eight categories of information “conveyed in 3 connection with copies . . . of a work or performances or displays of a work.” § 1202(c). 4 Relevant here, CMI includes “[t]he name of, and other identifying information about, the 5 author of a work.” § 1202(c)(2). Therefore, to allege a violation of § 1202(b)(1), a plaintiff 6 must allege that a defendant intentionally removed or altered identifying information about 7 the author of a work from a copy of that work. 8 Given this requirement, many courts in this Circuit have found that “no DMCA 9 violation exists where the works are not identical.” Kirk Kara Corp. v. W. Stone & Metal 10 Corp., No. CV 20-1931-DMG (EX), 2020 WL 5991503, at *6 (C.D. Cal. Aug. 14, 2020) 11 (citing cases); Advanta-STAR Auto. Rsch. Corp. of Am. v. Search Optics, LLC, 672 F. Supp. 12 3d 1035, 1057 (S.D. Cal. 2023) (finding the cases cited in Kirk Kara “to be persuasive” 13 and therefore ruling that plaintiff failed to state a claim for a violation of § 1202 of the 14 DMCA because plaintiff “has not plausibly alleged that Defendants distributed identical 15 copies” of plaintiff’s work); Andersen v. Stability AI Ltd., 744 F. Supp. 3d 956, 971 (N.D. 16 Cal. 2024) (recognizing that “this issue is unsettled,” but agreed with “other district court 17 decisions within the Ninth Circuit” and dismissed plaintiff’s DMCA claim because there 18 were “no allegations that any output from [defendant] was identical to a plaintiff’s work”). 19 The Court applied this standard in the IDM Lawsuit, and dismissed Biltform’s DMCA 20 claim against the IDM Defendants for this reason. (Case No. 23-cv-00297-PHX-SMB, 21 Doc. 22 at 7 (finding that “because Biltform does not allege that the original designs and 22 copied designs are identical, the Court will grant IDM’s motion to dismiss as to Count 2”).) 23 Here, Biltform’s DMCA claim fails for the same reason. The Complaint states: 24 “BMA and Andersen knowingly obtained Biltform’s Copyrighted Designs and CAD files 25 from IDM, replaced Biltform’s name and logo on the designs and plans, and passed off the 26 material portions of the designs and plans for the Infringing Complexes as their own.” 27 (Doc. 1 at 9 (emphasis added).) The Complaint also alleges Defendant’s works “were all 28 based upon and substantially similar to Biltform’s Copyrighted Designs and apartment 1 || model.” (Doc. 1 at9.) These allegations are insufficient to satisfy the identical 2|| requirement. See Doe I v. GitHub, Inc., No. 22-CV-06823-JST, 2024 WL 235217, at *9 (N.D. Cal. Jan. 22, 2024) (“Even where the underlying works are similar, courts have found that no DMCA violation exists unless the works are identical.” (citation modified)). 5 Accordingly, the Court grants Defendants’ Motion and dismisses Biltform’s DMCA 6 || claim with prejudice because Biltform cannot cure this defect by amendment. IV. CONCLUSION 8 Accordingly, 9 IT IS HEREBY ORDERED granting Defendants’ Partial Motion to Dismiss (Doc. 17) and dismissing Biltform’s DMCA claim with prejudice. 11 Dated this 16th day of July, 2026. 12 .
14 A lonorable Susan M. Brnovich United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-6-