Design Basics, LLC v. Lexington Homes, Inc.
858 F.3d 1093
7th Cir.2017Background
- Design Basics (plaintiff) is a prolific seller/licensor of ~2,700 single‑family home plans and has pursued numerous copyright suits since a 2009 ownership change; litigation revenue is a significant part of its business.
- Design Basics sued Lexington Homes (defendant) alleging four Lexington designs infringed four Design Basics plans; suit was filed on the eve of the limitations period.
- Design Basics offered a conclusory declaration from in‑house draftsman Carl Cuozzo and pointed to DesignBasics.com as evidence of dissemination; Cuozzo did not provide side‑by‑side analysis or traffic data and admitted uncertainty about upload dates.
- Lexington submitted detailed expert analysis (Dr. Robert Greenstreet) identifying dozens of differences between each paired plan and produced unrebutted declarations from employees denying prior exposure to the specific plans.
- The district court granted summary judgment for Lexington, finding no proof of access and no substantial similarity of protectable elements; the Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Substantial similarity of protectable expression | Designs are "substantially similar" in too many ways to be independent creation (Cuozzo) | Expert showed numerous material differences; similarities arise from common, unprotectable house features | No substantial similarity of protectable elements; plaintiff failed to raise a jury question |
| Access (opportunity to copy) | DesignBasics.com and other dissemination (trade associations, plan books) gave Lexington a reasonable possibility of access | No direct evidence Lexington or its agents saw the specific plans; Lexington employees deny exposure; alleged dissemination was remote or outdated | No evidence of access; mere website presence is insufficient to prove access |
| Whether internet publication alone can establish access | Website availability makes access reasonably possible | Internet publication without evidence of actual viewing or prominence is at best speculative | Internet posting alone does not establish access; plaintiff must offer more than mere publication |
| Credibility of in‑house expert testimony / reliance on conclusory opinions | Cuozzo’s declaration should be enough to show similarity | Cuozzo’s conclusory, self‑interested testimony is insufficient to rebut a detailed, unrebutted expert report | Court treated Cuozzo’s conclusory opinions as inadequate to create a genuine dispute of material fact |
Key Cases Cited
- eBay Inc. v. MercExchange, 547 U.S. 388 (2006) (noting industries that use IP primarily to extract fees)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (copyright protects only original expression)
- Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984) (access is required to infer copying absent direct evidence)
- Peters v. West, 692 F.3d 629 (7th Cir. 2012) (access plus substantial similarity required; high access does not lower similarity standard)
- JCW Investments, Inc. v. Novelty, Inc., 482 F.3d 910 (7th Cir. 2007) (elements of infringement and proof of access examples)
- Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167 (7th Cir. 1997) (striking similarity can substitute for access in rare cases)
- Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (2d Cir. 2014) (architectural copyrights are thin; only close copying of protected elements actionable)
- Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502 (7th Cir. 1994) (ordinary observer test for substantial similarity)
- Home Design Servs., Inc. v. Turner Heritage Homes Inc., 825 F.3d 1314 (11th Cir. 2016) (in customary industry styles, subtle differences can preclude infringement)
- Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923 (7th Cir. 2003) (unprotectable, standard elements and the merger/scenes a faire doctrines limit copyright scope)