Addressing the standard to show copying through circumstantial evidence rather than direct evidence, the U.S. Court of Appeals for the Fourth Circuit reiterated that a plaintiff must show a “reasonable possibility” of access, not a “mere possibility,” and affirmed summary judgment holding of no infringement.  Building Graphics, Inc. v. Lennar Corp., Case No. 11-2200 (4th Cir., Feb. 26, 2013) (Davis, J.)  The Fourth Circuit agreed with the district court that plaintiff failed to show access, but did not address the separate holding that there was no substantial similarity between the infringed and accused works.

Building Graphics accused Lennar of infringing three of its copyrighted home designs in the Charlotte, North Carolina, area.  The protected designs were available on Building Graphics’ website and distributed on sales handouts, but Building Graphics was only aware of one unit having been built in the Charlotte area for two of the models and none for the third.  While Lennar had conducted due diligence before entering the Charlotte market, a Lennar employee testified that the due diligence was limited to a review of competitive homes then on the market.

The district court granted Lennar’s motion for summary judgment of no infringement, concluding that the due diligence process only showed a “mere possibility” that Lennar had viewed Building Graphics’ home designs and that the availability of the designs on the internet and sales sheets were likewise insufficient to show a reasonable possibility of access.  Addressing the substantial similarity element, the district court treated the home designs as “compilations” having only “thin” copyright protection requiring “supersubstantial similarity” to show infringement.  Based on this standard, the court granted summary judgment in favor of Lennar on this issue as well.  Building Graphics appealed. 

Reviewing the grant of summary judgment de novo, the Fourth Circuit noted certain “apparent” similarities between the protected and accused floor plans, but affirmed the grant of summary judgment based on the access element.  The Court reiterated that attempting to show copying by circumstantial rather than direct evidence requires a “reasonable possibility” of access, not a “mere possibility.”  The Court distinguished the facts at issue from those in Bouchat v. Baltimore Ravens, where a reasonable possibility of access was found based on evidence that a copyrighted proposed Ravens logo was presented to the chairman of the Maryland Stadium Authority who said he would present it to the Ravens for consideration. 

While Lennar had failed to adequately explain how it obtained its similar floor plans, the Court explained that that failure did not absolve Building Graphics, which had the burden on the issue, of meeting its burden to show access, and that Building Graphics had not shown a reasonable chain of events or a wide enough dissemination sufficient to establish a reasonable possibility of access