417 So. 2d 798 | Fla. Dist. Ct. App. | 1982
In December of 1977, appellee filed suit against appellant seeking damages for appellant’s infringement of appellee’s common law copyright by the unauthorized use of a set of appellee’s building plans. Although the trial court initially found for the appellant, this court reversed that judgment, directed that judgment be entered for appel-lee, and remanded the case to the trial court for determination of the compensatory damages due the appellee. Kisling v. Rothschild, 388 So.2d 1310 (Fla. 5th DCA 1980), review denied, 397 So.2d 779 (Fla.1981). On remand, the trial court awarded the appellee damages in the amount of ten percent of the cost of construction of each of three houses the appellant had built using the plans. We reverse.
There was various testimony at the original trial going towards the damages the appellee had suffered. Appellant testified that if he had acquired the plans from a planning service, the cost would have been
In the previous appeal from this case, this court aligned itself with the majority of jurisdictions when it held appellee had a common law copyright in his architectural plans and designs and that the appellant’s unauthorized use of those plans constituted an infringement. Kisling v. Rothschild, 388 So.2d 1310 (Fla. 5th DCA 1980), review denied, 397 So.2d 779 (Fla.1981). However, the correct measure of damages in such a situation was not addressed.
When a defendant infringes upon the plaintiff’s common law copyright in an architectural plan, the correct measure of damages has been stated variously as “the fair market value of his set of ... plans,”
The first method is to determine what the plan’s worth is to the owner. Under this concept, several considerations would be material: (1) the value of the work of the owner in creating the plan, (2) the decrease in the value of the plan to the owner because of the infringement, and (3) any loss of profit the owner would have made from using the plan in the future on account of the infringement.
A second method for determining damages would be to determine the infringed plan’s worth to the infringer. Under this method, a plaintiff would recover the percentage of the infringer’s profit which was attributable to the plan.
Finally, a third method for determining the fair market value for an architectural plan is to determine what a willing buyer would pay a willing seller for the plan. Under this method, there does not appear to be any clear industry preference between a flat fee or a percentage of the cost of the construction of the building encompassed in the plan. However, there was evidence in the instant case that the percentage of the cost of construction was one permissible method and this method has been used elsewhere.
. Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886, 896 (1964).
. Nucor Corp. v. Tennessee Forging Steel Service, Inc., 513 F.2d 151, 153 (8th Cir. 1975).
. Masterson v. McCroskie, 194 Colo. 460, 573 P.2d 547, 551 (1978).
. Jones v. Spindel, 122 Ga.App. 390, 177 S.E.2d 187, 190 (1970), cert. dismissed, 227 Ga. 264, 180 S.E.2d 242 (1971), affirmed on appeal after remand, 128 Ga.App. 88, 196 S.E.2d 22 (1973).
. Ashworth v. Glover, 20 Utah 2d 85, 433 P.2d 315, 320 (1967).
. See, e.g., Read v. Turner, 239 Cal.App.2d 504, 48 Cal.Rptr. 919, 40 A.L.R.3d 237 (1966).
.See, e.g., Read v. Turner, 239 Cal.App.2d 504, 48 Cal.Rptr. 919, 40 A.L.R.3d 237 (1966). This measure of damages is often used in copyright infringement cases involving other types of literary properties. For example, in Smith v. Little, Brown and Co., 273 F.Supp. 870 (S.D.N. Y.1967), affirmed, 396 F.2d 150 (2d Cir. 1968), plaintiff sued defendant for infringement of her manuscript. In this situation, plaintiff was required to show the money the defendant had received from the sale of the book and the defendant was allowed to show the costs incurred in publishing the book. Even when the net profits were arrived at, defendant was allowed to attempt to show that the profit should be apportioned between the plagiarized portion of the published work and the nonplagiarized portion. Accord, Sammons v. Colonial Press,
. See, e.g., Doup v. Almand, 212 Ark. 687, 207 S.W.2d 601 (1948); Read v. Turner, 239 Cal. App.2d 504, 48 Cal.Rptr. 919, 40 A.L.R.3d 237 (1966); Jones v. Spindel, 122 Ga.App. 390, 177 S.E.2d 187 (1970), cert. dismissed, 227 Ga. 264, 180 S.E.2d 242 (1971), affirmed on appeal after remand, 128 Ga.App. 88, 196 S.E.2d 22 (1973).
. See, e.g., Read v. Turner, 239 Cal.App.2d 504, 48 Cal.Rptr. 919, 40 A.L.R.3d 237 (1966); Masterson v. McCroskie, 194 Colo. 460, 573 P.2d 547 (1978); Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886 (1964).