T-Peg v . Vermont Timber, et a l . 03-CV-462-SM 03/27/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
T-Peg, Inc. and Timberpeg East, Inc., Plaintiffs
v. Civil N o . 03-cv-462-SM Opinion N o . 2009 DNH 034 Vermont Timber Works, Inc. and Douglas Friant, Defendants
O R D E R
Defendants move for partial reconsideration of the court’s
order of March 2 8 , 2008, denying their motion for summary
judgement (document n o . 3 0 ) . Plaintiffs object.
The Legal Standard
“Under Fed. R. Civ. P. 59(e), a court may alter or amend a
judgment based on a manifest error of law or fact or newly
discovered evidence.” Zukowski v . S t . Lukes Home Care Program,
326 F.3d 2 7 8 , 282 n.3 (1st Cir. 2003) (internal quotation marks
omitted) (quoting Aybar v . Crispin-Reyes, 118 F.3d 1 0 , 16 (1st
Cir. 1997)).
Question of Law: The Abstract/Filtration Test
Defendants argue that summary judgment was improperly denied
because the court failed to apply the “separation” or “dissection” test. In reliance upon Johnson v . Gordon, 409 F.3d
1 2 , 17 (1st Cir. 2005), defendants argue that a “court ‘must
engage in dissection of the copyrighted work by separating its
original, protected, expressive elements from those aspects that
are not copyrightable.’” (Defs.’ Mot. for Recons. (document 149)
at 6.) Moreover, defendants argue that “this dissection or
separation process has never been addressed in this case either
by this Court or the First Circuit.” (Id. at 7.) Ultimately,
defendants contend that after “filtering out” the protectible
elements from the non-protectible, there are no similarities
between the copyrighted work and the alleged infringing work.
Plaintiffs, on the other hand, object to defendants’ motion
for reconsideration, arguing that: (1) defendants’
“‘separation/filtration’ argument is contrary to the definition
of architectural works under the Copyright Act and decisional law
interpreting the Architectural Works Protection Act;” and (2)
“[i]t also fails to overcome the factual question of substantial
similarity identified by the First Circuit.” (Pls.’ O b j .
(document n o . 151) at 2.)
Under the Copyright Act, as amended by the Architectural
Works Protection Act (“AWCPA”), an “architectural work” is
defined a s :
2 the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.
17 U.S.C. §101. The First Circuit explained that the definition
includes the “design of a building as embodied in any tangible
medium of expression,” T-Peg, Inc. v . V t . Timber Works, Inc., 459
F.3d 9 7 , 109 (1st Cir. 2006), as well as “the overall form as
well as the arrangement and composition of spaces and elements in
the design,” id. at 1 1 0 , but “does not include the individual
standard features.” Id. The legislative history sheds light on
the second component:
[t]he phrase ‘arrangement and composition of spaces and elements’ recognizes that: (1) creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectible elements into an original, protectible whole; (2) an architect may incorporate new, protectible design elements into otherwise standard, unprotectible building features; and (3) interior architecture may be protected.
Id. (quoting H.R. Rep. N o . 101-735, reprinted in 1990
U.S.C.C.A.N. at 6949). Thus, it is clear that an architectural
work can be comprised of otherwise unprotectible standard
features. See T-Peg, 459 F.3d at 110 (“while individual standard
features may not be individually copyrightable . . . the
combination of such standard features may be copyrightable”).
3 Under traditional copyright principles, a court separates a
copyrighted work’s “original, protected expressive elements from
those aspects that are not copyrightable because they represent
unprotected ideas or unoriginal expressions.” Johnson, 409 F.3d
at 19 (citing Concrete Mach. C o . v . Classic Lawn Ornaments, 843
F.2d 6 0 0 , 608 (1st Cir. 1988)). The rationale behind this
procedure is that “[w]hile a finding of substantial similarity
vel non derives from an examination of the juxtaposed works as a
whole, that examination must focus on ‘what aspects of the
plaintiff’s work are protectible under copyright laws and whether
whatever copying took place appropriated those [protected]
elements.’” Id. (quoting Matthews v . Freedman, 157 F.3d 2 5 , 27
(1st Cir. 1998)).
Defendants ask this court to adopt the reasoning employed by
the courts in Tiseo Architects, Inc. v . B & B Pools Service &
Supply Co., 495 F.3d 344 (6th Cir. 2007), and Trek Leasing, Inc.
v . United States, 66 Fed. C l . 8 (Fed. C l . 2005), in which the
dissection test was applied in copyright cases involving
architecture. These decisions are unhelpful here for several
reasons.
4 In Tiseo, “[t]he trial court filtered out many elements of
Tiseo Architects’ site plan drawings because they were
unoriginal.” 495 F.3d at 348 (internal quotations omitted). On
appeal, the Sixth Circuit affirmed the district court’s legal
analysis and conclusion. Id. Tiseo, however, is not on point
because it does not appear to have been brought under the AWCPA,
see id. at 346-47, which Act established, for architectural
works, “a standard of copyrightability more generous than that
accorded pictorial, graphic, or sculptural works.” T-Peg, 459
F.3d at 110.
In Trek Leasing, the trial court filtered out the
unprotectible aspects of an architectural work, concluding that
“[b]ecause of the constraints of the BIA Pueblo Revival style,
and the other external factors, the copyright of [p]laintiff’s
architectural work is necessarily a ‘thin’ one,” 66 Fed. C l . at
1 7 , and, on that basis, granted summary judgement for the
defendant. Id. at 2 3 . Among the elements filtered out by the
trial court were those depicted in a set of drawings titled
“Standard Post Office Building Design USPS 65A.” Id. at 1 6 .
Those drawings specified, among other things, “dimensions,
placement of windows and doors, etc.,” id. at 1 1 , and there was
“no dispute that the USPS standard drawings [made] up at least
50% of the [allegedly infringed] design,” id. at 1 6 . The USPS
5 65A drawings would appear, for all intents or purposes, to depict
an arrangement and composition of spaces and elements.
The facts of Trek Leasing are readily distinguishable from
the case at hand. In Trek Leasing, the court, which filtered out
the arrangement and composition of spaces and elements depicted
in the 65A drawings, still went on to determine whether there was
substantial similarity between what remained after filtration and
the allegedly infringing design. The court explained that,
Free access — add to your briefcase to read the full text and ask questions with AI
T-Peg v . Vermont Timber, et a l . 03-CV-462-SM 03/27/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
T-Peg, Inc. and Timberpeg East, Inc., Plaintiffs
v. Civil N o . 03-cv-462-SM Opinion N o . 2009 DNH 034 Vermont Timber Works, Inc. and Douglas Friant, Defendants
O R D E R
Defendants move for partial reconsideration of the court’s
order of March 2 8 , 2008, denying their motion for summary
judgement (document n o . 3 0 ) . Plaintiffs object.
The Legal Standard
“Under Fed. R. Civ. P. 59(e), a court may alter or amend a
judgment based on a manifest error of law or fact or newly
discovered evidence.” Zukowski v . S t . Lukes Home Care Program,
326 F.3d 2 7 8 , 282 n.3 (1st Cir. 2003) (internal quotation marks
omitted) (quoting Aybar v . Crispin-Reyes, 118 F.3d 1 0 , 16 (1st
Cir. 1997)).
Question of Law: The Abstract/Filtration Test
Defendants argue that summary judgment was improperly denied
because the court failed to apply the “separation” or “dissection” test. In reliance upon Johnson v . Gordon, 409 F.3d
1 2 , 17 (1st Cir. 2005), defendants argue that a “court ‘must
engage in dissection of the copyrighted work by separating its
original, protected, expressive elements from those aspects that
are not copyrightable.’” (Defs.’ Mot. for Recons. (document 149)
at 6.) Moreover, defendants argue that “this dissection or
separation process has never been addressed in this case either
by this Court or the First Circuit.” (Id. at 7.) Ultimately,
defendants contend that after “filtering out” the protectible
elements from the non-protectible, there are no similarities
between the copyrighted work and the alleged infringing work.
Plaintiffs, on the other hand, object to defendants’ motion
for reconsideration, arguing that: (1) defendants’
“‘separation/filtration’ argument is contrary to the definition
of architectural works under the Copyright Act and decisional law
interpreting the Architectural Works Protection Act;” and (2)
“[i]t also fails to overcome the factual question of substantial
similarity identified by the First Circuit.” (Pls.’ O b j .
(document n o . 151) at 2.)
Under the Copyright Act, as amended by the Architectural
Works Protection Act (“AWCPA”), an “architectural work” is
defined a s :
2 the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.
17 U.S.C. §101. The First Circuit explained that the definition
includes the “design of a building as embodied in any tangible
medium of expression,” T-Peg, Inc. v . V t . Timber Works, Inc., 459
F.3d 9 7 , 109 (1st Cir. 2006), as well as “the overall form as
well as the arrangement and composition of spaces and elements in
the design,” id. at 1 1 0 , but “does not include the individual
standard features.” Id. The legislative history sheds light on
the second component:
[t]he phrase ‘arrangement and composition of spaces and elements’ recognizes that: (1) creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectible elements into an original, protectible whole; (2) an architect may incorporate new, protectible design elements into otherwise standard, unprotectible building features; and (3) interior architecture may be protected.
Id. (quoting H.R. Rep. N o . 101-735, reprinted in 1990
U.S.C.C.A.N. at 6949). Thus, it is clear that an architectural
work can be comprised of otherwise unprotectible standard
features. See T-Peg, 459 F.3d at 110 (“while individual standard
features may not be individually copyrightable . . . the
combination of such standard features may be copyrightable”).
3 Under traditional copyright principles, a court separates a
copyrighted work’s “original, protected expressive elements from
those aspects that are not copyrightable because they represent
unprotected ideas or unoriginal expressions.” Johnson, 409 F.3d
at 19 (citing Concrete Mach. C o . v . Classic Lawn Ornaments, 843
F.2d 6 0 0 , 608 (1st Cir. 1988)). The rationale behind this
procedure is that “[w]hile a finding of substantial similarity
vel non derives from an examination of the juxtaposed works as a
whole, that examination must focus on ‘what aspects of the
plaintiff’s work are protectible under copyright laws and whether
whatever copying took place appropriated those [protected]
elements.’” Id. (quoting Matthews v . Freedman, 157 F.3d 2 5 , 27
(1st Cir. 1998)).
Defendants ask this court to adopt the reasoning employed by
the courts in Tiseo Architects, Inc. v . B & B Pools Service &
Supply Co., 495 F.3d 344 (6th Cir. 2007), and Trek Leasing, Inc.
v . United States, 66 Fed. C l . 8 (Fed. C l . 2005), in which the
dissection test was applied in copyright cases involving
architecture. These decisions are unhelpful here for several
reasons.
4 In Tiseo, “[t]he trial court filtered out many elements of
Tiseo Architects’ site plan drawings because they were
unoriginal.” 495 F.3d at 348 (internal quotations omitted). On
appeal, the Sixth Circuit affirmed the district court’s legal
analysis and conclusion. Id. Tiseo, however, is not on point
because it does not appear to have been brought under the AWCPA,
see id. at 346-47, which Act established, for architectural
works, “a standard of copyrightability more generous than that
accorded pictorial, graphic, or sculptural works.” T-Peg, 459
F.3d at 110.
In Trek Leasing, the trial court filtered out the
unprotectible aspects of an architectural work, concluding that
“[b]ecause of the constraints of the BIA Pueblo Revival style,
and the other external factors, the copyright of [p]laintiff’s
architectural work is necessarily a ‘thin’ one,” 66 Fed. C l . at
1 7 , and, on that basis, granted summary judgement for the
defendant. Id. at 2 3 . Among the elements filtered out by the
trial court were those depicted in a set of drawings titled
“Standard Post Office Building Design USPS 65A.” Id. at 1 6 .
Those drawings specified, among other things, “dimensions,
placement of windows and doors, etc.,” id. at 1 1 , and there was
“no dispute that the USPS standard drawings [made] up at least
50% of the [allegedly infringed] design,” id. at 1 6 . The USPS
5 65A drawings would appear, for all intents or purposes, to depict
an arrangement and composition of spaces and elements.
The facts of Trek Leasing are readily distinguishable from
the case at hand. In Trek Leasing, the court, which filtered out
the arrangement and composition of spaces and elements depicted
in the 65A drawings, still went on to determine whether there was
substantial similarity between what remained after filtration and
the allegedly infringing design. The court explained that,
“[a]lthough each [element] in isolation might be subject to
exclusion from the court’s calculus, the conceptual
interrelationship of [elements] should remain present for the
court’s analysis even after filtering out particular concrete
objects, thus subjecting the defendant to potential liability
should copying of those elements be proven.” Trek Leasing, 66
Fed. C l . at 22-23 (quoting 3 MELVILLE B . NIMMER & DAVID NIMMER, NIMMER
ON COPYRIGHT § 13.03(F)(5)). The court then concluded that the
plaintiff could not seek protection in the arrangement and
compilation of spaces “because the arrangement [was] dictated by
the U S P S standards and because the combination of elements [was]
standard in the B I A Pueblo Revival style.”1 Id.
1 The B I A Pueblo Revival style was characterized as a scène à faire. The doctrine of scènes à faire applies when the similarity of expression results from stock scenes or elements that necessarily flow from a common idea. See generally 3 NIMMER & NIMMER, supra, § 13.03[B][3], at 13-76 (2008); § 13.03[B][4], at 13-82.
6 Here, by contrast, defendants propose to filter out
individual elements, but not consider the overall arrangement and
composition of spaces and elements, i.e., the architectural work
at issue. Defendants’ analysis fails to take full account of the
definition of an architectural work. Trek Leasing involved
filtering out unprotectible elements that included the
arrangement and composition of spaces and elements. But here,
defendants have not made any effort to filter out the arrangement
and composition of spaces and elements in the designs at issue.
Thus, Trek Leasing is not analogous to this case and does not
support a grant of summary judgement in defendants’ favor.
Conclusion
For the reasons given, defendants’ motion for
reconsideration (document n o . 149) is denied.
SO ORDERED.
Steven J./McAuliffe ^hief Judge
March 2 7 , 2009
cc: Daniel E . Will, Esq. Jonathan M . Shirley, Esq. W . E . Whittington, Esq.