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Sixth Circuit: Proper copyright infringement test applied, finding of no infringement affirmed
July 30, 2007

In a decision Friday, the Sixth Circuit affirmed a district court's finding of no copyright infringement, holding that the lower court had applied the proper legal standard. Specifically, while the district court characterized the test for substantial similarity in a different manner, the application of the test was proper insofar as the court removed from consideration elements which were not protectible, and instead compared only the plaintiff's protectible expression to the allegedly infringing work.

The plaintiff, Tiseo, asserted that certain architectural plans for an addition to a building owned by one of the defendants infringed its copyrighted work. B & B Pools enlisted the plaintiff firm to draw up plans for the addition pursuant to B & B's requirements (and a rough sketch provided by B & B) as well as the various zoning requirements, and used those plans to obtain zoning approval. Eventually, however, B & B hired a different architect to prepare the final construction plans.

Tiseo sued, alleging copyright infringement, as well as some other claims that were eventually dismissed. As there was no direct evidence of infringement, Tiseo sought to prove infringement through a showing of access to the copyrighted plans and substantial similarity between the plans Tiseo prepared and the final plans produced by the competing architect. While the defendants conceded access existed, they contested the presence of substantial similarity.

The district court found no substantial similarity. Specifically, the court noted that both drawings were derived from B & B's original sketches and incorporated various suggested revisions. Because of this, the amount of original expression in the plaintiff's work was small, because the majority of expression was dictated either by B & B (whether through the original drawings or specific requests) and the various zoning requirements. As stated by the district court:

there are very few ways that this idea can be expressed consistent with the specific requests made by [B & B], and I think that balances, if not outweighs the substantial similarity between the floor plans.

The district court then noted the differences between the plans, including "differences in materials used, [ ] differences in the roof line . . ., [and] differences in the windows."

The Sixth Circuit affirmed, finding that it was appropriate for the district court to "filter out" unprotectable elements before assessing the similarity of the works. As described by the court:

[T]he substantial similarity analysis of a copyright infringement claim is divided into two steps: the first step requires identifying which aspects of the artist's work, if any, are protectible by copyright; the second involves determining whether the allegedly infringing work is 'substantially similar' to protectible elements of the artist’s work. The essence of the first step is to filter out the unoriginal, unprotectible elements—elements that were not independently created by the inventor, and that possess no minimal degree of creativity—through a variety of analyses.

The court held that the district court properly took this analysis into account. Because the Tiseo did not contest the factual determination of no substantial similarity, but instead just contended that the wrong test was applied, the court affirmed the finding of no infringement.

To read the full decision in Tiseo Architects, Inc. v. B & B Pools, Serv. & Supply Co., click here.

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