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2008 Intervest Abridged

2008 Intervest Abridged - INTERVEST CONSTRUCTION INC a...

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1 INTERVEST CONSTRUCTION, INC., a Florida corporation, Plain- tiff-Appellant, versus CANTERBURY ESTATE HOMES, INC., a Florida corporation, Defendant-Appellee. 554 F.3d 914 (11 th Cir. 2008) Before BIRCH and DUBINA, Circuit Judges, and GOLDBERG, * Judge. * Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by designation. BIRCH, Circuit Judge: In this copyright infringement action the appellant contends that the district court erred when it examined the two floor-plans at issue, and, emphasizing the differences between the two, concluded "that, as a matter of law, no reasonable fact-finder could conclude" that appellant's floor-plan ("The Kensington") was substantially similar to appellee's floor-plan ("The Westminister"). More specifi- cally, appellant ("Intervest") argues that the district court employed a "heightened 'substantial simi- larly' standard" by itself focusing upon certain dissimilarities between the two floor-plans at issue, based upon a misinterpretation of Howard v. Sterchi, 974 F.2d 1272 (11th Cir. 1992). For the rea- sons that follow we find no error and AFFIRM the judgment of the district court. I. BACKGROUND In point of time, the floor plan for The Westminster was created in 1992 as a work-made-for- hire by Intervest Construction, Inc. ("Intervest"). The putatively infringing floor-plan, The Kensing- ton, was created in 2002 by Canterbury Estate Homes, Inc. ("Canterbury"). Each floor-plan depicts a four-bedroom house, with one bedroom being denominated as a "master" bedroom or suite. Each floor plan includes a: two-car garage; living room; dining room; "family" room; foyer; "master" bathroom; kitchen; second bathroom; nook; and porch/patio. Each floor-plan also reflects certain "elements" common to most houses: doors; windows; walls; bathroom fixtures (toilet, tub, shower, and sink); kitchen fixtures (sink, counter, refrigerator, stovetop, and pantry/cabinets); utility rooms and fixtures (washer, dryer, and sink); and closets. A cursory examination of the two floor-plans reveals that the square footage of both is approximately the same. Also, as is common to houses, there are placements of entrances, exits, hallways, openings, and utilities (furnace, air conditioner, hot water heater, and telephone hardware). After identifying all of these unassigned components and elements of the floor-plans, the district court undertook a careful comparative analysis of the selection, coordination, and arrangement of these common components and elements. The district court focused upon the dissimilarities in such coordination and arrangement: First, Canterbury represents that the square footage of the rooms in the two [*917] designs is different, and visual examination of the floor plans appears to confirm that. In any event, Intervest seemingly does not contest the point. Second, the garage in The Westminster has a front entrance, while The Kensing- ton's has a side entrance. Further, Intervest's design has an attic access from the garage,
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2 while Canterbury's version has a "bonus room" above the garage, something The Westminster lacks entirely. Moreover, the inside air conditioning unit and water heater
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