Good Job Ned! Whittington Law Associates

1 - Complaint + Summons
4 - Defs Mot t Ext Time
5 - Defs Mot t Dismiss
6 - Assented Mot t Ext Time
8 - Pltf Obj t Mot to Dismiss
9 - Defs Answer t Cmplt
10 - Pltf Ans + Aff Defs t CC
11 - Prop Discovery Plan
12 - Pltf Mot t Ext Time
13 - Defs Resp t Mot Ext Time
14 - Defs Disclosure Stme
15 - Defs MTC
16 - Stip of Dismissal
17 - Defs Addendum Notice
18 - Pltf Obj t MTC
19 - Order re MTC
20 - Defs Reply t Obj to MTC
22 - Vol Stip Dismiss Isbitski
23 - Defs MSJ
24 - Pltfs Obj to MSJ
26 - Notice re NonConforming Doc
27 - Pltfs Mot to Amend
28 - Defs Reply to Obj
29 - Defs Mot to Strike
32 - Defs 2d Mot to Compel
33 - Defs Mot f Judgment re Pleadings
34 - Pltfs Obj to Mot to Strike
35 - Plts Mot f Leave to Reply
36 - Defs Obj to Mot to Amend Cplt
37 - Defs Prelim Obj
38 - Defs Mot to Suppl Obj
40 - Defs Obj to Mot f Leave
41 - Pltf Obj t Mot f Judgment
42 - Pltf Obj to MTC
44 - Defs MSJ
45 - Pltfs Obj t Mot to SUpp Obj
47 - Defs Add Clarif
48 - Defs Supp to Prel Obj
50 - Pltfs Reply t Obj to MSJ
51 - Defs Return Svc
52 - Order
53 - Pltfs Resp to Mot
54 - Defs Obj t Pltfs Testimony
55 - Defs Mot to Clarify

19 - Order 04-29-04
52 - Order 11-19-04
90 - Order Granting VTW MSJ
97 - Order
98 - Order 04-06-05
99 - Judgment Voluntary Stip Dismiss Isbitski
102 - Order Extend Time t Appeal
108 - Order Grant VTW Mot f Atty Fees
110 - Pltf Notice o Appeal
111 - Clerk Certif t Circuit Ct Appeals
112 - Appeal Cover Sheet
113 - Clerk Suppl Certif t Circuit Ct Appeals
114 - Order Opinion T-Peg v VTW
115 - Judgment 08-18-06
116 - T-Peg Bill of Costs
116 - T-Peg Memo of Law re Bill of Costs
117 - Mandate of US Ct Appeals
118 - Updated Discovery Plan
119 - Notice Change Address Whittington Law
120 - Exhbit 4 - Order
120 - Exhibit A - Timberpeg
120 - Timberpeg Objection
121 - Defs Response
122 - Assented to Motion Protective Ord
122 - Stip Protective Order
123 - Protective Order -signed by Judge
124 - Ex C - Part 2
124 - Ex A - Affidavit Neroni
124 - Ex B - Deposition Friant
124 - Ex C - part 3
124 - Ex C - part 4
124 - Ex C - Plaintiffs Exp Disclosure - Vincent
124 - Ex D - Timberpeg Plans
124 - Ex E - VTW Shop Drawings
124 - Ex F - Design Agreement
124 - Ex G - Affidavit Cole
124 - Ex H - Hentschell Stmt
124 - Ex I - Welch Letter
124 - Ex J - Timberpeg Copyright Registration
124 - Memo of Law
124 - T-Peg MSJ (partial)
125 - Def Motion for Judgmt Pldgs
125 - 2 Memo of Law
125 - 3 - Certificate o Registration
125 - 4 - Application Form VA
126 - Def MSJ
126 - 10 Vincent Depo part 2
126 - 11 Copyright Inst form VA
126-12 Contract TEI + T-Peg
126 - 13 Affidavit WEW
126 - 2 Memo of Law
126 - 3 App + Certif Reg
126 - 4 1st Ins + RTP
126-5 - Memo Meet+ Conf
126 - 6 Supp Ans t Ins
126-7 Drawings part 1
126 - 8 Drawings Part 2
126 - 9 Vincent Depo part 1
127 - Def Status Report
128 - Mot to Continue Trial - Assented
129 - Def Memo in Opposition to Pltf MSJ (Partial)
130 - Notice of Intent to Reply to Obj
131 - Ex A Hentschel Depo
131 - Timberpeg Memo in Opposition
132 - Plaintiffs Reply to Def Oppos to Pltf Partial MSJ
133 - Defs Notice o Intent to Reply
134 - Defs Reply t Obj t Motion
135 - Ex A Neroni Affidavit
135 - Ex B Neroni Affidavit 2nd
135 - Ex C - Cole Affidavit
135 - Pltfs Memo in Opposition
136 - Defs Notice o Intent t Reply
137 - Def Reply to Obj to Mot Lack Standing
137 - Ex 8 Cole sketches 2nd part
137 - Ex 8 Cole Sketches137 - Ex 9 Yankee Barn
138 - Order Mooting in Part & Denying in Part
139 - Def mt leave to file addl citations
140 - jt mt continue
141 - mt revive MSJ on profits
142 - Friant mt join MSJ (profits)
143 - Obj to m t cite addl authority
144 - Memo Support - Suppl Citation
145 - Mot f Leave t File
145-2 Def Suppl Memo
146 - T-Peg obj to suppl memo
147 - Order on 4 MSJs
148 - Def Suppl Memo
149 - VTW mf Reconsideration
149 - 2 VTW mf Reconsid MEMO
150 - Pltf Assented Mot Set Briefing Sched
151 - T-Peg obj to mtr
152 - Pltf Brief
152 - 2 - Affidavit - Neroni
152 - 3 Registration Certif
153 - Def Brief o Standing

154 - Notice o Intent t Reply
155 - obj to intent to reply
156 - Mot f Leave
156 - 2 - proposed reply br
157 - Def Obj t Pltf MLF
158 - Pltf Reply t Def Standing Brief
159 - Mot f Hrg + Oral Argument
160 - Def Mot t Revive MSJ etc
161 - TPeg response to mf oral argument
162 - TPEG response
163 - Order
164 - Order
165 - Defs Mot t Reopen Discovery
166 - Defs Mot for Certif Interloc Appeal
167 - Defs Status Report
168 - Order
169 - Notice of Mediation
170 - Mediation Report 07-23-09
171 - Defs Renewed Mot to Reopen Discovery
171 - 2 Ex 1 Mot to Reopen Disc
172 - Mot to Expedite Renewed Mot re Disc
173 - Notice of Trial Conflict
174 - Ex. A Hentschel Aff
174 - Obj to MT Reopen Disc
174 - 3 Ex B Deft Disc Req
175 - Pltf Obj t Mot t Expedite Disc
176 - Defs Final Pretrial Stmt
177 - Defs Witness List
178 - Defs Mil to Bifurcate Damages
179 - Defs Mil Other Drawings
180 - Pltf Final Pretrial Stmt
181 - Pltfs Propose Voir Dire
182 - Pltfs Jury Instruc + Verdict Form
183 - Pltfs MiL Excl Evid re Copyright No.1
183 - 2 - Phillips Expert Report
184 - Pltfs Mil to No. 2
185 - Pltfs Mil No. 3
186 - Pltfs Mil No. 4
187 - Pltf Mil No. 5
188 - Pltf Mil No. 6
189 - Pltf Mil No. 7
190 - Defs Jury Instructions
190 - 2 Defs Fed Jury Inst Copyright 1
190 - 3 Defs Fed Jury Inst Copyright 2
191 - Defs Mil Exclude Evidence View 199 Plans
192 - Defs w draw Mil t bifurcate
193 - Defs Obj to Mil No. 1
193 - 10 Foundation plan 2001
193 - 2 Fed Jury Instr
193 - 3 Tpeg fax 05-02-01
193 - 4 Tpeg fax 08-09-01
193 - 5 Tpeg memo 08-31-01
193 - 6 Fed Jury Copyright 160.1
193 - 7 Tpeg fax 08-06-01
193 - 8 Tpeg plan 09-19-01
193 - 9 Cole depo p 54-56
194 - Defs Obj t Mil No. 2
195 - Defs Obj to Mil 3
196 - Defs obj to Mil 4
197 - Defs obj to Mil 5
198 - Pltf Obj t Mil t exclud evid 199 plans
199 - Pltf obj to Mil offer evid non-regis plans
200 - Pltfs Obj to Mil t bifur liab + dam phases o trial
201 - Pltfs Obj Prop Jury Instruc
202 - Defs Obj to Mil No. 6
203 - Defs Obj to Mil No. 7
204 - Final Pretrial Order
205 - Defs Witness List - Will Call
206 - Pltfs Witness List
207 - Pltf Suppl Jury Instr
208 - Defs Mot to Admit Ex L
209 - Ex 1 Foundation Plan to 208
209 - Ex 2 Timberpeg Fax
209 - Ex 3 Timberpeg Order
209 - Ex 4 Excerpt fr Cole Deposition
210 - Defs Mot to Expedite
211 - Defs Addl Jury Instruc
211 - Ex 1 Tpeg 459 G 3d 97 - 112
212 - Defs Mot f Judgment Matter o Law
212 - 1 TPeg Articles o Inc212-3 Ex 2
212 - 4 Ex 3 Direc to Copyright Off Form VA
212 - 5 Ex 4 Def Not re Authen Ex 62
212 - 6 Ex 5 Cert o Registration
213 - Jury Instructions
214 - Jury Q 1 + Response
215 - Jury Verdict
216 - Judgment
217 - Pltf Final Exhibit List
219 - Plaintiffs' Final Witness List
218 - Defs Final Exhibit List
224 - Defs MF Atty Fees

Ex A
Ex B
Ex C
Ex D
Ex E
Ex F
Ex G
Ex H
Ex I
Ex J
Ex K
Ex L
Ex M
Ex N Def + Pltf + Codes
Ex N - Def
Ex N - Pltf
Ex N - side x side
Ex N
Ex O
Ex P
Ex Q
Ex R
Ex S
Ex U
Ex W - VTW Demonstratives 3
Ex X Def
Ex X Pltf + Def
Ex X Pltf Codes
Ex X Pltf

United States Court of Appeals

For the First Circuit

No. 05-2866

T-PEG, INC.; TIMBERPEG EAST, INC.,

Plaintiffs, Appellants,

v.

VERMONT TIMBER WORKS, INC.; DOUGLAS S. FRIANT,

Defendants, Appellees,

STANLEY J. ISBITSKI,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

 Torruella, Lynch, and Howard,

Circuit Judges.

    Daniel E. Will, with whom Devine, Millimet & Branch, P.A. was on brief, for appellants.

    W.E. Whittington, with whom Whittington Law Associates, PLLC was on brief, for appellees.

         LYNCH, Circuit Judge. This case is the first occasion for us to address a copyright infringement suit under the Architectural Works Copyright Protection Act ("AWCPA"), Pub. L. No. 101-650, §§ 701-706, 104 Stat. 5089, 5133-34 (1990) (codified in scattered sections of 17 U.S.C.), which created a new category of copyrightable subject matter for "architectural works." 17 U.S.C. § 102(a)(8).

         The plaintiffs, T-Peg, Inc. and Timberpeg East, Inc. (collectively, "Timberpeg"), sell both architectural designs and the associated packages of material for the construction of timberframed homes. Timberpeg created architectural plans for a home for Stanley Isbitski in Salisbury, New Hampshire. The central feature of those plans was the timberframed main house, although the plans did not show a completed final architectural design for the actual timberframe. The plaintiffs registered their second set of preliminary plans as an architectural work with the Copyright Office, and maintained ownership over the copyright in the work embodied in the plans.

         Isbitski, however, never purchased a construction materials package and final plans from Timberpeg. He did file the registered plans with the Town of Salisbury in order to get a building permit. Isbitski hired defendant, Vermont Timber Works, Inc. ("VTW"), to erect a timberframe for his home. VTW erected its timberframe, but Isbitski never completed his home. A later owner bought the property and completed the home.

         Timberpeg filed suit against both Isbitski and VTW, claiming, inter alia, that the timberframe designed through shop drawings and constructed by VTW for Isbitski infringed Timberpeg's copyright in the architectural work. This appeal concerns only the copyright infringement claim against VTW. Isbitski could not be found and was never served.

         The district court granted summary judgment to VTW, finding that no reasonable jury could conclude that VTW copied Timberpeg's architectural work, or that VTW's frame was "substantially similar" to Timberpeg's registered plans. The district court also awarded attorneys' fees to VTW.

         We reverse the judgment of the district court, finding that there is a genuine issue of material fact as to Timberpeg's copyright infringement claim under the AWCPA. As a result, we also vacate the award of attorneys' fees and remand.

I.

         We recount the facts, taking all reasonable inferences in favor of Timberpeg, the party that opposed the entry of summary judgment. See Senior v. NSTAR Elec. & Gas Corp., 449 F.3d 206, 208 (1st Cir. 2006).

         Stanley Isbitski owned a plot of land in Salisbury, New Hampshire, on which he wanted to build a home featuring a "timberframe." A timberframe is a house frame using wooden posts and beams which remain visible inside the building. The more common "stick built" home, by contrast, is framed using two-inch lumber rather than posts and beams. Isbitski dealt both with Timberpeg and with VTW, two companies that are, broadly speaking, in the timberframe business, but have different sorts of operations. Douglas Friant is one of the founders and co-owners of VTW, and is responsible for the drafting of timberframe shop drawings if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote1 ); document.write( '
Close' ); document.write( '' ); } for VTW. Isbitski's dealings with Timberpeg and VTW, and his own work on his house (he was acting as his own general contractor for the construction of the home), ran somewhat in parallel. We describe his dealings with each company separately.

A.       Isbitski's Dealings with Timberpeg

         Timberpeg markets and sells designs and its own brand of "packages" for the construction of timberframe homes. A Timberpeg package consists of the materials used for the construction of a home's timberframe and exterior building envelope (including windows, exterior doors, insulation, siding, exterior trim, and cedar roof shakes). Timberpeg does not erect the packages it sells; instead, a customer must hire a builder or contractor to assemble and erect the package.

         Timberpeg provides architectural design services for customers, and has a staff of architects and designers who can create all the necessary designs and architectural plans to build a home. Timberpeg's business model is not based on selling design services or architectural plans. Rather, Timberpeg makes its money on the sale of its packages of construction material based on its architectural plans. Timberpeg provides architectural design services as a way to facilitate the sale of its packages.

         Sometime in 1999 or perhaps earlier, Isbitski approached Timberpeg to consider the purchase of a Timberpeg package. Isbitski, working with a Timberpeg employee, filled out a "design information sheet" about what he wanted the house to look like. The actual design information sheet is not in the record. On November 15, 1999, Isbitski and Timberpeg entered into a "Deposit Agreement for TIMBERPEG Preliminary Plans and Drawings." Under this deposit agreement, Isbitski paid a $2500 deposit to Timberpeg, in exchange for which Timberpeg would and did create preliminary architectural plans and construction plans for the house. The preliminary architectural plans would consist of a basement plan, floor plans, four elevations (external, vertical views of the house from different angles showing exterior features such as window and door locations, roof pitches, and ceiling heights), and a building cross section. After Isbitski's approval of the preliminary plans, Isbitski would receive construction plans, including foundation plans and details of Timberpeg's standard construction techniques. According to the contract, the construction plans could "be used for planning the construction process, ordering materials, obtaining contractor bids, and securing a building permit." Final plans, which included the complete frame drawings, would not be prepared as part of the deposit agreement, but would be prepared as part of the final contract for the purchase of a Timberpeg package. Timberpeg, in all, provided Isbitski with two versions of the preliminary plans and then construction plans. No final plans were ever provided.

         Under the contract, Isbitski represented to Timberpeg that "any house plans, specifications, drawings or sketches of any kind (the 'Drawings') provided to [Timberpeg were] the result of an original design (the 'Design')," represented that he (Isbitski) was the "sole owner of the Design and has exclusive rights, including copyright, in and to the Design as represented in the Drawings," and agreed to indemnify and hold harmless Timberpeg from use of the drawings and design. Timberpeg would own the copyright in the "Preliminary Plans, Construction Plans, specifications, drawings, and other material (the 'Plans')." Isbitski could use the plans "solely in connection with the evaluation and construction of one (1) Package purchased from [Timberpeg]," and

[a]ny other use of the Plans, including, but not limited to, the following, is an unauthorized appropriation of copyright by Customer and a breach of this Agreement: a) the copying of all or any part of the Plans; b) the utilization or partial utilization of the Plans for the construction of a similar building or structure; or c) any transfer or delivery of the Plans to another person without written authorization from [Timberpeg].

         Isbitski was under no obligation to purchase a Timberpeg package after seeing the preliminary plans or even the construction plans. If he chose to purchase a package, the $2500 deposit would be credited against the price of the package. If he chose not to purchase a package, Isbitski would have to return the plans, and Timberpeg would return the deposit minus a fee for design time, billed at $49 per hour, and other incidental costs.

         Timberpeg created a first set of preliminary plans on December 29, 1999 and gave them to Isbitski. These plans showed the design of a house with a timberframed main portion and a wing that would be stick built. The record does not contain this first set of plans, and these plans were never registered with the Copyright Office.

         In early 2001, Isbitski met again with Timberpeg, saying that he was unsatisfied with the first set of preliminary plans. Timberpeg completed a new design for Isbitski on April 20, 2001 "based on [its] interpretation of Mr. Isbitski's rough ideas and preferences." The plans were given to Isbitski. Timberpeg registered these plans with the Copyright Office on May 18, 2001. The registration certificate shows that these second preliminary plans were registered as an "architectural work." It is only this second, registered set of preliminary plans that is at issue here.

         Based on these plans, Isbitski applied for a building permit from the Town of Salisbury. As part of the permitting process, in April 2001, Isbitski submitted the second preliminary plans to the Town of Salisbury, where they were placed in a public file.

         The second set of preliminary plans contained elevations and floor plans. The plans showed a two-floor main house connected via a covered breezeway to a three-car garage with a lofted space above it. The first floor of the main house was nine feet tall; the second floor was eight feet tall. The main house consisted, broadly speaking, of two major portions. One portion -- the portion which would be timberframed -- was backwards-L-shaped. A great room (with two-floor ceilings on the northern end of the house), kitchen, breakfast room, and dining room were on the first floor, and a den was on the lofted second floor (which occupied only the southern portion of the house). The plans for this portion of the house did not contain a complete design of the timberframe, but the floor plans did show where the vertical posts would connect to the foundation and the location of at least some of the internal horizontal beams. The timberframing in this portion of the house used a particular style featuring common rafters with principal purlins (horizontal timbers supporting the rafters). The roof in this portion was oriented north-to-south, if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote2 ); document.write( '
Close' ); document.write( '' ); } with a particular pitch (roof angle) referred to as a "twelve-by-twelve" pitch.

         The exact dimensions of the timberframed portion of the main house were 44 feet by 28 feet, with a 14-foot-by-8-foot section cut out in the northwest corner to form the L shape, where a screen porch would be located. There was also a "bump-out" in the kitchen on the western side of the house -- an approximately eight-foot portion of the western wall containing windows that jutted out one foot beyond the rest of the wall. The timberframed portion of the house also featured a central switchback staircase located in the center of the timberframed portion of the home. In addition to labels denoting the various rooms, the floor plan showed the location of various fixtures, including a kitchen sink (located at the "bump-out"), a stove, and a fireplace.

         The second major component of the main house -- containing bedrooms, bathrooms, and the foyer -- was connected to the eastern side of the timberframed portion, and was to be stick-built. The roof in this portion of the house was oriented east-to-west, and had a pitch of nine-by-twelve. There was a covered porch on the northern part of this portion, which connected to the covered breezeway and the three-car garage.

         In May 2001, Isbitski asked Timberpeg to modify its preliminary plans so that they reflected a timberframe in a "bent" style rather than the style previously used (which is variously referred to in the record as a "purlin" style or a "purlin with common rafters" style). He gave Timberpeg a picture clipped from a magazine showing a bent frame (this was the same picture he later gave to VTW). No modifications were undertaken until the construction plans were drafted.

         Later, in August 2001, Isbitski asked Timberpeg for a set of foundation plans showing the location of various support posts and steel girders, so he could start pouring the concrete foundation. Timberpeg agreed, but asked Isbitski to send in $1500 to cover past due and future design fees. Timberpeg asserts that it continued to assume that Isbitski would eventually buy a package from Timberpeg. On September 20, 2001, Timberpeg sent its "construction plans," reflecting a timberframe in a bent-frame style (although not containing a complete frame design), and the foundation plan. This third set of plans, which reflected the bent frame, was never registered with the Copyright Office. Sometime thereafter, Isbitski poured the foundation of the home and also began construction of the three-car garage.

B.       Dealings with VTW

         In December 2000, a year after Isbitski had seen the first preliminary Timberpeg plans but before Isbitski had asked Timberpeg for a second set of preliminary plans, Isbitski approached VTW. VTW is located in Vermont, and specializes in timberframing. It has no architects on staff, and does not design buildings or create architectural plans. Instead, it uses specifications provided by the customer to create shop drawings of the frame of the building. These specifications typically are in the form of architectural plans, but VTW also can draw frames based on rough sketches, as long as VTW receives information about the building's footprint (the outline of the building as it sits on the ground) and wall height. VTW also has an in-house frame assembly crew that actually erects the frame on site.

          According to VTW, Isbitski stated that he had developed a layout for a house plan with his then-deceased wife. Isbitski stated that his plan was to have VTW draw and construct only the timberframe for the timberframed main portion of the home. Isbitski was going to act as the general contractor for the remainder of the home, subcontracting work to other people or companies as needed. Starting at the end of 2000, VTW began drawing a timberframe for Isbitski.

         It is undisputed that in his first meeting with VTW in December 2000, Isbitski provided VTW with a copy of the first, unregistered set of preliminary plans created by Timberpeg. VTW asserts that its personnel only saw this first set of preliminary plans, not the second, registered plans, on which the claim here is brought. VTW also claims that those first preliminary plans did not even factor into its creation of its timberframe for Isbitski's home because Isbitski said he was unhappy with the plans, and that VTW, in fact, asked Isbitski to consult an architect to develop floor plans and elevations for the home. This, VTW says, would not have been necessary had VTW been relying even on Timberpeg's first, unregistered plans. Timberpeg counters that VTW could have obtained the second, registered preliminary plans, either through Isbitski himself or through the Town of Salisbury. Timberpeg points to a letter written by VTW's attorney after litigation had commenced, which stated that Isbitski asked VTW "to design a frame to fit a portion of the floor plans of his house" and that Isbitski had "represented to [VTW] that he paid for and owned a set of plans, which he provided to [VTW] that were drawn by Timberpeg." The letter does not say whether the plans referred to were the first set or the second set of plans created by Timberpeg.

         VTW's position is that it took its directions only from Isbitski and that Isbitski provided substantial guidance in determining VTW's shop drawings of the timberframe. According to Douglas Friant at VTW, Isbitski said that he had been "planning this house for years and [was] working on the design for years." At the first meeting in December 2000, Isbitski provided the dimensions of his plan (although the record does not reveal the exact dimensions that he gave to VTW). He also brought pictures clipped from a magazine and a catalog (not from Timberpeg) showing how he wanted the frame to look. The pictures showed a bent-style frame. Friant stated that during the drafting process (starting from December 2000 until May 2002) Isbitski frequently would drop by or call VTW's shop unexpectedly, and would talk with Friant about his ideas about what he wanted for the timberframe. As an example, Friant testified at his deposition that Isbitski was "very concerned about how the stairway looked" and "absolutely emphatic about . . . making sure that he was able to hang a chandelier in the stairway area," and this instruction required Friant to modify the shop drawings. According to VTW, some of Isbitski's instructions were very specific. Isbitski would tell VTW where to place posts within an eighth of an inch, and asked VTW to change the roof pitch in VTW's original designs to a precise pitch he provided. During the time VTW was working on its shop drawings, Isbitski received the second preliminary plans and the construction plans from Timberpeg.

         Isbitski agreed to purchase the VTW timberframe on March 8, 2002. By this time, Timberpeg's second preliminary plans, the registered plans, had been in his hands for nearly one year, and publicly available for about the same amount of time. Isbitski also had had possession of the construction drawings from Timberpeg for nearly six months. VTW completed final revisions to its shop drawings of the timberframe design in May 2002. The shop drawings showed a bent-style frame which was in some ways similar to, and in other ways different from, the timberframed portion of the main house in Timberpeg's registered preliminary plan. We consider these similarities and differences in detail below.

         By June 2002, Isbitski had completed the foundation and the three-car garage with the loft. VTW erected, on that foundation, the frame as provided for in the shop drawings. The parties assume that the erected frame reflected the shop drawings.          In September 2002, Isbitski informed Timberpeg that he was not going to be purchasing a Timberpeg package. According to Timberpeg, Isbitski said the reason was that he was going to build a stick-built, rather than a timberframed, house. Timberpeg in response asked for the remainder of the design fees due (which fees had, by that point, exceeded Isbitski's total deposit), amounting to approximately $1000. It is unclear whether Isbitski ever paid this amount. Soon thereafter, Timberpeg learned that Isbitski was building a house, using VTW's timberframe, that looked like the house it had designed.

C.       The Aftermath

         Isbitski never completed the home, apparently because he ran into financial difficulty. Isbitski had begun enclosing the timberframe built by VTW with exterior wall panels, but never completed that task, and the frame was left open to the elements. Timberpeg sold a license to its registered design to Sugar River Savings Bank in October 2003 in order to assist with the completion of construction of the home. Under the terms of the license, the bank was free to re-sell to any party other than Isbitski or VTW. Sometime in 2004, a representative from Timberpeg visited the Isbitski site. The property had been purchased by a Mr. Dupee, who had largely completed construction of the house in a manner which, according to Timberpeg, was similar to the design as reflected in the second set of preliminary plans created for Isbitski.

II.      Timberpeg filed suit against VTW and Isbitski in the U.S. District Court in New Hampshire on October 23, 2003. Timberpeg asserted, inter alia, copyright infringement claims against VTW under 17 U.S.C. §§ 501 et seq. Timberpeg's claim against VTW was that the timberframe designed in shop drawings and built by VTW was "substantially similar to the architectural work embodied in the" second preliminary plans, which it had registered as an architectural work. if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote3 ); document.write( '
Close' ); document.write( '' ); }

         On February 9, 2005, the district court granted summary judgment to VTW on all counts. As to the copyright infringement claim, the district court first held, incorrectly relying on pre-AWCPA law, that VTW's constructed frame could not be a copy of an architectural plan under copyright law. The district court, considering only whether VTW's shop drawings were an infringing copy of Timberpeg's architectural work, as embodied in the second preliminary plans, held as a matter of law that VTW had not actually copied Timberpeg's plans, and even assuming copying, that VTW's shop drawings were not substantially similar to Timberpeg's architectural plans.

         Timberpeg moved for reconsideration, pointing out that its claim was based on the AWCPA. It argued that the district court's holding that a building could not be a copy of an architectural plan under copyright law was contrary to the AWCPA. if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote4 ); document.write( '
Close' ); document.write( '' ); } It also argued that there was at least a genuine issue of material fact as to unlawful copying. Timberpeg relied, in part, on the letter from VTW's counsel, which it argued contained an admission that the defendants had copied Timberpeg's plans. Timberpeg emphasized that its "central theory . . . is that the timberframe, in the shop drawings and as constructed by the defendants[,] is an infringing copy of the architectural work reflected in Timberpeg's copyright[ed] architectural plans, as opposed to an infringing copy of the plans themselves" and that the claim squarely fell under the AWCPA. if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote5 ); document.write( '
Close' ); document.write( '' ); }

         The district court reconsidered, and on April 6, 2005, held that no reasonable jury could conclude that the timberframe as constructed according to VTW's shop drawings was substantially similar to the architectural work as embodied in Timberpeg's registered plans. In doing so, it rejected Timberpeg's reliance on the letters from VTW's counsel.

         VTW moved for attorneys' fees under the Copyright Act, 17 U.S.C. § 505. The district court granted VTW's motion for attorneys' fees and awarded $116,642.43.

III.

         Before turning to the specific arguments on appeal, we discuss the governing framework of copyright law and the AWCPA. The AWCPA extended copyright protection to a class of works called "architectural works," 17 U.S.C. § 102(a)(8), which are defined as

the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.

17 U.S.C. § 101. Timberpeg argues that this definition is broad, and that VTW's timberframe (as reflected in the shop drawings and as constructed) infringes Timberpeg's copyright in the architectural work as embodied in its second, registered preliminary plans and including a particular configuration of elements which together form the work.

         We first briefly lay out the requirements of a claim of copyright infringement.

A.       Copyright Infringement

         Under the Copyright Act, "[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a). An "architectural work" is a work of authorship. Id. § 102(a)(8). A copyright holder has certain exclusive rights to the work, including the right to reproduce all or any part of the copyrighted work. Id. § 106; see also Johnson v. Gordon, 409 F.3d 12, 17 (1st Cir. 2005). One infringes a copyright when he or she violates one of the exclusive rights to a work held by a copyright owner, and the owner has the right to sue for infringement. See 17 U.S.C. § 501.

         "To establish copyright infringement under the Copyright Act, 'two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'" Johnson, 409 F.3d at 17 (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)); see also Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 33 (1st Cir. 2001); Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 60 (1st Cir. 2000). Proving "copying of constituent elements of the work that are original" (the second element of the Feist test) itself involves two steps: the plaintiff must show (a) that the defendant actually copied the work as a factual matter, either through direct evidence or through indirect means, see Yankee Candle Co., 259 F.3d at 33; Segrets, 207 F.3d at 60, and (b) that the defendant's "copying of the copyrighted material was so extensive that it rendered the infringing and copyrighted works 'substantially similar,'" Johnson, 409 F.3d at 17-18 (quoting Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 813 (1st Cir. 1995), aff'd by an equally divided court, 516 U.S. 233 (1996)).

         In an infringement action, the burden is on the plaintiff to prove these elements. Id. VTW does not challenge Timberpeg's ownership of a valid copyright in this case. This leaves the question of whether VTW "cop[ied] constituent elements of the work that are original." Feist, 499 U.S. at 361.

B.       The Architectural Works Copyright Protection Act

         Historically, copyright law provided limited protection to works of architecture. Architectural plans, while not explicitly mentioned in the Copyright Act of 1976, were covered under a provision affording protection to "pictorial, graphic, and sculptural works." 17 U.S.C. § 102(a)(5); see also 1 Nimmer & Nimmer, Nimmer on Copyright § 2.08[D][2][a], at 2-117 (2006) (discussing legislative history of Copyright Act of 1976). But architectural structures themselves were afforded virtually no protection. See 1 Nimmer & Nimmer, supra, § 2.08[D][2][b], at 2-126; Ginsburg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 14 Colum.-VLA J.L. & Arts 477, 490 (1990).

         This began to change with the accession of the United States to the Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as last revised July 24, 1971 and amended Sept. 28, 1979, S. Treaty Doc. No. 99-27, 1161 U.N.T.S. 30. The Berne Convention requires protection for "works of . . . architecture" as distinct from "illustrations, maps, plans, sketches and three-dimensional works relative to . . . architecture." Id. art. 2. The United States joined the Berne Convention with the passage of the Berne Convention Implementation Act of 1988 ("BCIA"), Pub. L. No. 100-568, 102 Stat. 2853 (1988). While the BCIA amended the definition of "pictorial, graphic, and sculptural works" to explicitly include "architectural plans," id. § 4 (codified at 17 U.S.C. § 101), it did not explicitly extend protection to "architectural works," as distinct from architectural plans.

         To ensure United States' compliance with the requirements of the Berne Convention, the AWCPA was signed into law on December 1, 1990. Pub. L. No. 101-650, §§ 701-706, 104 Stat. 5089, 5133-34 (codified in scattered sections of 17 U.S.C.); see also H.R. Rep. No. 101-735 (1990), reprinted in 1990 U.S.C.C.A.N. 6935. The AWCPA added "architectural works" as a new category of copyrightable works. 17 U.S.C. § 102(a)(8). The legislative history makes it clear that "[p]rotection for architectural plans, drawings, and models as pictorial, graphic, or sculptural works under section 102(a)(5) . . . is unaffected by" the AWCPA. H.R. Rep. No. 101-735, reprinted in 1990 U.S.C.C.A.N. at 6950.

         The definition of an "architectural work," 17 U.S.C. § 101, quoted in full above, has three main components. First, an "architectural work" is the "design of a building as embodied in any tangible medium of expression." Id. The definition provides three exemplars of such a tangible medium of expression -- "a building, architectural plans, or drawings" -- although these are not the only possible media of expression. Id. As originally drafted, the bill only referred to architectural works as embodied in buildings. H.R. Rep. No. 101-735, reprinted in 1990 U.S.C.C.A.N. at 6950. According to the legislative history for the AWCPA, "there was concern that a defendant with access to the plans or drawings could construct an identical building but escape liability so long as the plans or drawings were not copied." Id. To close this potential gap, the bill was reworded to expand the definition of an architectural work to encompass a building design "as embodied in any tangible medium of expression." Id.

         This more expansive definition means that the holder of a copyright in an architectural plan (such as Timberpeg) has two forms of protection, one under the provision for an "architectural work" under 17 U.S.C. § 102(a)(8), and another under the provision for a "pictorial, graphical, or sculptural work" under 17 U.S.C. § 102(a)(5). The legislative history confirms this point. See H.R. Rep. No. 101-735, reprinted in 1990 U.S.C.C.A.N. at 6950 ("An individual creating an architectural work by depicting that work in plans or drawing will have two separate copyrights, one in the architectural work (section 102(a)(8)), the other in the plans or drawings (section 102(a)(5))."). The two avenues of protection are slightly different in scope, as discussed below. As Timberpeg made clear in its motion for reconsideration before the district court, its "central theory" is based on the protection afforded architectural works under § 102(a)(8) rather than the protection afforded architectural plans under § 102(a)(5).

         The second component of the definition is that an architectural work "includes the overall form as well as the arrangement and composition of spaces and elements in the design." 17 U.S.C. § 101. According to the legislative history,

[t]he phrase 'arrangement and composition of spaces and elements' recognizes that: (1) creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectible elements into an original, protectible whole; (2) an architect may incorporate new, protectible design elements into otherwise standard, unprotectible building features; and (3) interior architecture may be protected.

H.R. Rep. No. 101-735, reprinted in 1990 U.S.C.C.A.N. at 6949.

         Finally, the definition excludes from the protectable "architectural work" "individual standard features." 17 U.S.C. § 101. The legislative history provides examples of such individual standard features: "common windows, doors, and other staple building components." H.R. Rep. No. 101-735, reprinted in 1990 U.S.C.C.A.N. at 6949. Non-standard individual features reflecting some amount of originality are not necessarily excluded from copyright protection. Id. Furthermore, while individual standard features may not be individually copyrightable, as the quoted legislative history above confirms, the combination of such standard features may be copyrightable. Id.

         Under the Copyright Act, architectural works are, in at least one sense, "subject to a standard of copyrightability more generous than that accorded pictorial, graphic or sculptural works." Ginsburg, supra, at 491. Under 17 U.S.C. § 101,

pictorial, graphic, and sculptural works . . . include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

Id. (emphasis added). The requirement that the protectable elements of a pictorial, graphic, or sculptural work be separated from the "utilitarian aspects" of the work under 17 U.S.C. § 102(a)(5) is known as the "separability test." By contrast, there is no separability test for an architectural work. In the AWCPA, Congress purposefully did not impose such a separability test for determining the copyrightability of architectural works. See H.R. Rep. No. 101-735, reprinted in 1990 U.S.C.C.A.N. at 6951 ("[T]he copyrightability of architectural works shall not be evaluated under the separability test applicable to pictorial, graphic, or sculptural works.").

IV.

         We review the district court's entry of summary judgment de novo. Senior, 449 F.3d at 216. "Summary judgment is proper only if the record, read favorably to the non-moving party, reflects no genuine issues of material fact and the undisputed facts indicate that the movant is entitled to judgment as a matter of law." Hadfield v. McDonough, 407 F.3d 11, 15 (1st Cir. 2005) (citing Fed. R. Civ. P. 56(c)).

         On appeal, the arguments center around whether there is a genuine issue of material fact as to substantial similarity. The district court, at least in its first order, also concluded that no reasonable jury could conclude that VTW had actually copied Timberpeg's plans. Since copying is a necessary element of a copyright infringement claim, see Johnson, 409 F.3d at 17-18, we would uphold summary judgment if the district court were correct on this ground, and we may affirm on any ground supported by the record, see Senior, 449 F.3d at 216. We briefly discuss the evidence of copying and conclude that the district court was not correct.

A.       Actual Copying

         Copying may be proven through direct or circumstantial evidence. Johnson, 409 F.3d at 18. Timberpeg points both to direct and to circumstantial evidence of copying, sufficient to create a material issue of fact for a jury.

         For direct evidence, Timberpeg points to the letter from VTW's attorneys stating that Isbitski "represented to [VTW] that he paid for and owned a set of plans, which he provided to [VTW] that were drawn by Timberpeg." Timberpeg argues that this letter is an admission by VTW that it relied on the registered preliminary plans. VTW, like the district court, rejects Timberpeg's reliance on the letters, arguing that the letters were not admissions, but to the contrary, state that VTW did not copy Timberpeg's plans. The letter from VTW's attorney does not say whether the plans referenced are the second, registered preliminary plans (about which there is a dispute as to whether VTW saw the plans) or the first, unregistered preliminary plans (which VTW acknowledges it received, but states it did not rely on). This is a factual dispute about the meaning of the admission by counsel, and that issue cannot be resolved on summary judgment.

         In the absence of direct evidence of copying -- such direct evidence is rare, see Johnson, 409 F.3d at 18 -- one of the ways to indirectly establish that the defendant copied the plaintiff's work is to provide evidence that (1) the defendant "enjoyed access to the copyrighted work," and so had the opportunity to copy the work, and (2) "a sufficient degree of similarity exists between the copyrighted work and the allegedly infringing work to give rise to an inference of actual copying." Id. The similarity inquiry used to indirectly establish copying is referred to as "probative similarity" and is "somewhat akin to, but different than, the requirement of substantial similarity" that must be shown to prove copyright infringement. Id.

         As to access, Timberpeg argues that VTW had access to its registered preliminary plans both because Isbitski had made those plans public by filing them with the Town of Salisbury, and because VTW could have received the plans directly from Isbitski. A trier of fact may impute access when there is "evidence that a third party with whom both the plaintiff and defendant were dealing had possession of plaintiff's work," and the "plaintiff's and defendant's dealings took place concurrently." 4 Nimmer & Nimmer, supra, § 13.02[A]. That is the case here.

         As to whether there is a genuine issue of material fact as to "probative similarity" -- whether "a sufficient degree of similarity exists between the copyrighted work and the allegedly infringing work to give rise to an inference of actual copying" -- this analysis merges somewhat with the question of "substantial similarity" (although they are separate questions). We discuss below the similarities and dissimilarities between Timberpeg's registered plans and VTW's frame in the context of the substantial similarity inquiry. We conclude that a reasonable jury could find a sufficient degree of probative similarity exists between Timberpeg's architectural work and VTW's frame "to give rise to an inference of actual copying" for the same reasons a jury could find there is substantial similarity.

B.       Substantial Similarity

         The substantial similarity inquiry "entails proof that the copying was so extensive that it rendered the works so similar that the later work represented a wrongful appropriation of expression." Johnson, 409 F.3d at 18. The inquiry focuses not on every aspect of the copyrighted work, but on those "'aspects of the plaintiff's work [that] are protectible under copyright laws and whether whatever copying took place appropriated those [protected] elements.'" Id. at 19 (second alteration in original) (quoting Matthews v. Freedman, 157 F.3d 25, 27 (1st Cir. 1998)); see also Feist, 499 U.S. at 361 (noting that wrongful copying requires showing of "copying of constituent elements of the work that are original" (emphasis added)). Summary judgment on substantial similarity is "unusual" but can be warranted on the right set of facts. See Segrets, 207 F.3d at 62. "Summary judgment on [substantial similarity] is appropriate only when a rational factfinder, correctly applying the pertinent legal standards, would be compelled to conclude that no substantial similarity exists between the copyrighted work and the allegedly infringing work." Johnson, 409 F.3d at 18.

         The copyrighted work at issue is Timberpeg's architectural work as embodied in the second preliminary plans. As for the allegedly infringing works, there are both VTW's shop drawings and the frame as actually erected by VTW. The parties have assumed that the frame as erected matches VTW's shop drawings. VTW's shop drawings also reflect certain other features that VTW did not actually build -- the exterior walls and the actual staircase (although VTW did build the posts that define the stair bay). We include these features as part of the allegedly infringing work when conducting the similarity analysis.

         Substantial similarity can be measured by the "ordinary observer" test. Id. Under that test, two works will be said to be substantially similar if a reasonable, ordinary observer, upon examination of the two works, would "conclude that the defendant unlawfully appropriated the plaintiff's protectable expression." Id. The two works need not be exact copies to be substantially similar. Differences between the works have some effect on the inquiry, but the mere existence of differences is insufficient to end the matter in the defendant's favor. Id.; see also Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 608 (1st Cir. 1988) ("Slight or trivial variations between works will not preclude a finding of infringement under the ordinary observer test."). "If the points of dissimilarity not only exceed the points of similarity, but indicate that the remaining points of similarity are, within the context of plaintiff's work, of minimal importance, either quantitatively or qualitatively, then no infringement results." 4 Nimmer & Nimmer, supra, § 13.03[B][1][a].

         The record shows the following similarities between VTW's shop drawings and Timberpeg's registered plans:

1. VTW's shop drawings and the frame as constructed had a backwards-L-shaped footprint with exactly the same dimensions as the timberframed portion of the main house in Timberpeg's plans.

2. VTW's shop drawings and the constructed frame had a kitchen "bump-out" along the western wall, although the VTW bump-out was about two feet wider than the one in Timberpeg's plans.

3. VTW's shop drawings showed a central switchback staircase in precisely the same location as the staircase in Timberpeg's plans, and the constructed frame included the posts used to define the stair bay.

4. VTW's frame showed a lofted second floor in the same location and with the same dimensions as in Timberpeg's plans.

5. VTW's frame had the same roof pitch and dimensions as in Timberpeg's plans.

6. The plate (wall) height was the same in both Timberpeg's plans and VTW's shop drawings.

7. VTW's shop drawings appeared to contemplate a further wing attached to the eastern wall of the timberframe; the shop drawings showed the location of exterior wall panels (which VTW would not erect but were nonetheless reflected in the drawings), and there were no such panels along the eastern side. The Timberpeg plans showed a separate stick-built wing attached to the eastern side of the timberframed portion of the home.

         VTW and the district court pointed to a number of differences shown in the record between VTW's shop drawings and Timberpeg's registered plans:

1. VTW asserts that its frame was able to support any number of designs, depending on how the panels and walls were applied to the frame, while the Timberpeg design showed a particular internal floor plan and external features. Timberpeg acknowledges that the frame was not determinative, but points out that VTW's frame could accommodate Timberpeg's whole house design (if one chose to do so).

2. Timberpeg's registered plans did not show a complete timberframe design, while VTW's shop drawings showed only a timberframe, and VTW only erected a timberframe.

3. The frame components that were shown in Timberpeg's second, registered preliminary plans reflected a certain framing style with common rafters and principal purlins, if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote6 ); document.write( '
Close' ); document.write( '' ); } while VTW's shop drawings and frame were in a bent style.

4. While Timberpeg's plans and VTW's frame both had 27 posts, there are differences. There were two posts in the VTW shop drawings without any corresponding equivalents in the Timberpeg design. Of the twenty-five equivalent posts, only two were identical in size, orientation, notching, and location.

         VTW argues that these differences "preclude[] the existence of a material dispute on whether there was 'substantial similarity.'" Timberpeg argues that all of these differences are minimal, and are insufficient to overcome the similarities such that summary judgment for VTW is warranted.

         Keeping in mind the definition of an "architectural work" as "includ[ing] the overall form as well as the arrangement and composition of spaces and elements in the design," 17 U.S.C. § 101, we conclude that there are genuine issues of material fact as to substantial similarity.

         The district court erred in failing to consider those similarities that went to the "overall form" of the building as well as the "arrangement and composition of spaces and elements." if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote7 ); document.write( '
Close' ); document.write( '' ); } The district court found that the only similarities were in "the idea of a twenty-eight by forty-four foot part of a house, with a stair bay located in a particular position" if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote8 ); document.write( '
Close' ); document.write( '' ); } and so found that no reasonable jury could conclude that VTW's shop drawings were substantially similar to Timberpeg's registered plans.

         In fact, the relevant similarities here go beyond those recognized by the district court. At issue here is a particular combination of elements in Timberpeg's architectural work: a portion of a home featuring a timberframe with a backwards-L-shaped footprint, with a particular arrangement of posts, with certain dimensions and a bump-out along the western wall, featuring a central switchback staircase, with a lofted second floor of a certain floor area and in a certain location, with a certain roof pitch with certain dimensions, and certain wall heights. A reasonable jury, properly considering this combination of elements, could conclude that VTW's frame was substantially similar to Timberpeg's registered plans.

         The district court also concluded that the differences between VTW's frame and Timberpeg's registered plans were such that no reasonable jury could conclude there was substantial similarity. We disagree.

         The district court and VTW emphasized that VTW designed only a frame, while Timberpeg's plans did not contain a complete frame design. This emphasis wrongly assumes that the only question here is whether a reasonable jury could conclude that VTW's frame is substantially similar to Timberpeg's frame design, and that since Timberpeg never designed a complete frame, there can be no infringement. That is wrong. The question here is whether a reasonable jury could conclude that VTW's frame as drawn and built is substantially similar to Timberpeg's architectural work (which includes "the overall form as well as the arrangement and composition of spaces and elements in the design") as embodied in the second preliminary plans for the Isbitski house. This does not necessarily turn on whether Timberpeg created a complete frame design or not. if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote9 ); document.write( '
Close' ); document.write( '' ); }

         As to VTW's claim that it is a dispositive difference that the VTW frame could accommodate any number of internal layouts and external features other than those reflected in the architectural plans created by Timberpeg, this too stems from a misunderstanding of Timberpeg's claim. Copyright protection exists not only in the architectural work taken as a whole (which includes a particular floor plan and arrangement of external features), but also in protectable portions of the work. Timberpeg bases its claims here on a combination of elements, which, taken together, are protectable under the definition of an architectural work in 17 U.S.C. § 101. As the legislative history for the AWCPA states, "[t]he phrase 'arrangement and composition of spaces and elements' recognizes that . . . creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectible elements into an original, protectible whole." H.R. Rep. No. 101-735, reprinted in 1990 U.S.C.C.A.N. at 6949. A jury could reasonably conclude that VTW's frame is substantially similar to these protectable elements of Timberpeg's architectural work. The fact that VTW's frame might not necessarily result in other elements being taken from Timberpeg's architectural work is not dispositive.

         VTW also considers the differences in the posts between Timberpeg's plan and VTW's frame to be dispositive. This is an argument that can be addressed to the jury, but is not itself dispositive on summary judgment. Timberpeg argues that differences in almost all of the posts are measured on the scale of inches rather than feet. VTW has not argued that Timberpeg is wrong on this point, and has not demonstrated that no reasonable jury would find the differences insignificant. VTW makes general statements that certain posts have a different size, orientation, or notching, but the actual measure of the differences is important to evaluating substantial similarity; a difference of a few feet obviously weighs more strongly against substantial similarity than a difference of a few inches. Both the magnitude and significance of any differences present disputed issues of material fact that cannot be resolved on summary judgment.

         VTW also relies on the difference in the size of the kitchen bump-out and the fact that Timberpeg's second preliminary plan contemplated a common rafter style, whereas the VTW frame featured a bent style. While these differences may also weigh against a finding of substantial similarity by the fact finder, this is evidence for the jury to weigh.

         This analysis alone requires reversal. We also comment on one other point to give guidance to the district court and to clarify an earlier decision of ours.

         Timberpeg and VTW both introduced reports prepared by expert witnesses. The district court rejected any reference to expert affidavits in the context of substantial similarity, citing our Segrets case. if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote10 ); document.write( '
Close' ); document.write( '' ); } We have not, however, uniformly rejected the use of expert testimony on substantial similarity. See Johnson, 409 F.3d at 20 (noting that the plaintiff's "burden of establishing both probative similarity . . . and substantial similarity . . . [are] dependent on three purported similarities (points one, two, and seven in Mr. John's [expert] report)"). if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote11 ); document.write( '
Close' ); document.write( '' ); } Moreover, the need for expert testimony may be greater in cases involving complex subject matters where an ordinary observer may find it difficult to properly evaluate the similarity of two works without the aid of expert testimony. As Nimmer notes, "[a] special challenge is posed in adjusting the traditional categories of substantial similarity to the burgeoning areas of technology protected by copyright." 4 Nimmer & Nimmer, supra, § 13.03[E][4].

         We leave to the district court the determination of whether this may be a case in which expert testimony would be helpful on the issue of substantial similarity. We also note that the district court did not determine whether the expert reports otherwise met applicable standards for admissibility, see Fed. R. Evid. 702, 703, and we do not address this issue. If admissible, the conflicting reports indicate material issues of fact as to substantial similarity. Timberpeg's expert (who was also a Timberpeg employee) stated that "the outline and design of the Isbitski house in the [VTW] drawings matches almost exactly the architectural design represented in Timberpeg's plans" and that "the overall dimensions are the same, the stair is the same design in the same location, and the area shown as a loft is the same size in the same location." VTW's expert report, by contrast, noted a number of differences, including the fact that the VTW frame was a bent frame rather than a frame using common rafters with purlins as in Timberpeg's plans. It also noted that the VTW posts were placed on basement "footings" that were already in place when the frame was constructed.

V.

         The issue of whether VTW's shop drawings and constructed frame were substantially similar to Timberpeg's architectural work as embodied in the second preliminary plans for the Isbitski home is one for a jury to decide after trial. At present there are genuine issues of material fact both as to copying and as to substantial similarity, making the question one that cannot be resolved on summary judgment.

         We reverse the entry of summary judgment against Timberpeg, vacate the attorneys' fee award, and remand for further proceedings consistent with this opinion. Costs are awarded to T-Peg, Inc. and Timberpeg East, Inc.

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
T-Peg, Inc. and Timberpeg East, Inc., Plaintiffs
v. Civil No. 03-cv-462-SM
Opinion No. 2005 DNH 152 Vermont Timber Works, Inc. and Douglas S. Friant,
Defendants
 
O R D E R
Defendants (collectively “VTW”) prevailed in plaintiffs’ (collectively “Timberpeg”) copyright infringement suit. Defendants now move for costs and attorneys’ fees. Plaintiffs object. For the reasons given below, VTW’s motion for attorneys’ fees is granted.
Under the Copyright Act, “the court in its discretion . . . may . . . award a reasonable attorney’s fee to the prevailing party as a part of the costs.” 17 U.S.C. § 505. A number of factors are properly considered in determining fee awards.
These factors include “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in
particular circumstances to advance considerations of compensation and deterrence.” Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 ([3d Cir.] 1986). We agree that such factors may be used to guide courts’ discretion, so long as such factors are faithful to the purposes of the Copyright Act and are applied to prevailing plaintiffs and defendants in an evenhanded
1
manner.
Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994). When assessing factors such as frivolousness and objective unreasonableness, the analysis should focus on what a party knew when it pressed a claim or defense, rather than on what decisions that party might have made with the benefit of the court’s subsequent resolution of the case. See InvesSys, Inc. v. McGraw-Hill Cos., 369 F.3d 16, 21 (1st Cir. 2004) (citing Tang v. R.I. Dep’t of Elderly Affairs, 163 F.3d 7, 13 (1st Cir. 1998)).
Here, it might be a stretch to say that Timberpeg’s suit was patently frivolous from the outset. When Timberpeg filed suit, its agents knew that: (1) Stanley Isbitski was a former client/customer for whom Timberpeg prepared several sets of house
1 “[T]he overriding purpose of the Copyright Act [is] to encourage the production of original literary, artistic, and musical expression for the public good.” Lotus Dev. Corp. v. Borland Int’l, Inc., 140 F.3d 70, 73 (1st Cir. 1998) (citing Fogerty, 510 U.S. at 534).
plans; (2) one set of Timberpeg’s plans had been placed on file by Isbitski with the Town of Salisbury; (3) Isbitski showed Timberpeg’s plans to VTW; (4) VTW designed a post-and-beam frame to support a portion of the house designed by Timberpeg; and (5) the house ultimately built on the VTW frame was substantially similar in appearance and lay-out to the house Timberpeg designed for Isbitski. Based upon that knowledge, Timberpeg could have plausibly thought, initially at least, that VTW copied its architectural plans.
Objective reasonableness, however, is a different matter. The objective reasonableness inquiry includes an examination of both the factual basis and the legal basis for a party’s claim or defense. Fogerty, 510 U.S. at 534 n.19.
Timberpeg argues, based upon the undisputed fact that the VTW frame was capable of supporting a portion of the house Timberpeg designed, that it was objectively reasonable for it to conclude, as a factual matter, that VTW’s “timberframe must have been prepared on the basis of [Timberpeg’s] architectural plans.” The reasonableness of that conclusion was bolstered, Timberpeg
contends, by its discovery, prior to filing suit, that Isbitski had actually shown Timberpeg’s plans to a VTW frame designer. While it might have been objectively reasonable, as a factual matter, for Timberpeg to have concluded that VTW based its frame design on the floor plans and elevations Timberpeg had prepared for Isbitski, it was certainly not reasonable for Timberpeg to conclude that VTW copied a Timberpeg frame design, since Timberpeg never designed a frame.
Timberpeg also contends that its legal theory of liability was objectively reasonable. Relying upon language from Hunt v. Pasternack, 192 F.3d 877 (9th Cir. 1999), and the legislative history of the Architectural Works Copyright Protection Act (“AWCPA”), Timberpeg grounded its copyright infringement claim on VTW’s “mere use[] of the plans to design a structure, as opposed to first duplicating the plans [and] then using the duplicated plans to design/create a structure.” The question, then, is whether it was objectively reasonable for Timberpeg to assert that VTW’s timberframe design, or the timberframe itself, constituted an infringing copy of Timberpeg’s architectural plans
or the architectural work embodied in those plans. The answer, quite plainly, is “no.”
Academic support does exist for the proposition that a completed building or structure can itself constitute an infringing copy of an architectural work. See, e.g., Louis Altman, Copyright on Architectural Works, 33 IDEA 1, 61 (1992) (“In contrast to the pre-1990 law, building designs covered by the Architectural Works Copyright Protection Act can be infringed not only by copying the design in the form of two-dimensional plans or drawings or a three-dimensional model, but also by the construction of a full-sized building which embodies the protected design . . .”) (footnotes omitted); Andrew S. Pollock, Comment, The Architectural Works Copyright Protection Act: An Analysis of Probable Ramifications and Arising Issues, 70 NEB. L. REV. 873, 881-87 (1991). Moreover, as Timberpeg correctly notes, Hunt characterizes the House Report on the AWCPA as making it “clear that an unconstructed work, embodied only in plans or drawings, can be infringed by a structure that embodies the copied design.” 192 F.3d at 880 (emphasis added). And, H.R. REP. No. 101-735, reprinted in 1990 U.S.C.C.A.N. 6935, uses the
term “infringing buildings” at several points. Id. at 6944 & 6953 n.50.
So, it cannot be said that Timberpeg’s legal theory of liability – that a structure can itself constitute an infringing copy of an architectural work – was, in the abstract, objectively unreasonable. But the issue here is more focused. First, VTW did not design or construct a building that looked like the one designed by Timberpeg. Indeed, VTW did not design or construct any building at all; it designed and constructed a discrete component of a building - a post-and-beam frame. Timberpeg did not design a post-and-beam frame; it simply designed floor plans and elevations according to the general specifications provided by Isbitski. And, the record is clear that a number of alternative frame types and designs would suffice to support the building Timberpeg designed.
When Timberpeg filed suit it knew that it had not developed a frame design for Isbitski (that is, it never created an architectural work related to a post-and-beam frame). Timberpeg knew as well that it had not produced any drawing or plan related
to a frame design. And Timberpeg knew that VTW designed and built only a timberframe. And Timberpeg necessarily understood that its building design could be supported by any number of frame types and designs. Accordingly, Timberpeg’s copyright infringement claim consisted, essentially, of an assertion that its architectural work (the overall house design), embodied without a frame design, was infringed by VTW’s own timberframe design, unembellished by other architectural details.
Timberpeg’s theory of infringement ignored the reality that its frameless architectural work could be supported by a variety of different frame designs and framing systems.2 It also ignored the fact that the frame VTW designed and built was capable of supporting a variety of different architectural designs - any number of which would be non-infringing with respect to Timberpeg’s house design. In other words, there was no necessary infringing correlation between Timberpeg’s architectural work (the house plans) and VTW’s frame design, just as there is no
2 That Timberpeg’s architectural work could be supported by several different frame designs and framing systems is borne out by the fact that Timberpeg’s preliminary plans for Isbitski’s house called for (but did not depict) a purlin and rafter framing system while its construction plans for the same house called for (but did not depict) a frame employing a bent system.
necessary correlation between VTW’s frame design and Timberpeg’s architectural work.
It was, therefore, objectively unreasonable for Timberpeg to sue VTW based upon a claim that VTW’s frame constituted an embodiment of Timberpeg’s house plans. That VTW’s frame could accommodate Timberpeg’s house design hardly made that frame an infringing copy of Timberpeg’s house plans. Timberpeg’s legal theory - that VTW’s frame infringed - was objectively unreasonable in the context of this case, and amounted to an attempt by Timberpeg to extend its copyright protection substantially further than legally permissible. See Matthews v. Freedman, 157 F.3d 25, 29 (1st Cir. 1998) (affirming district court’s determination of objective unreasonableness when plaintiff tried “to extend her copyright protection far beyond what [was] allowed by law”).
The remaining Fogerty factors also support an award of costs and fees. Regarding Timberpeg’s motivation, the assertion of an objectively unreasonable claim goes beyond any legitimate attempt to clarify or extend the scope of copyright law but, rather,
suggests “a desire to discourage and financially damage a competitor by forcing it into costly litigation.” Yankee Candle Co. v. Bridgewater Candle Co., 140 F. Supp. 2d 111, 116 (D. Mass. 2001) (citing NLFC, Inc. v. Devcom Mid-America, Inc., 916 F. Supp. 751, 759-60 (N.D. Ill. 1996)).
Timberpeg’s commitment to protecting its intellectual property through litigation, or the threat of litigation, is apparently strong, as it should be. But this case crosses the line between vigorous protection and unwarranted intimidation. An award of costs and fees will serve the important purpose of deterring Timberpeg and others from the kind of imaginative overreaching represented by the legal theory it attempted to force upon the unsuitable facts of this case.
VTW has demonstrated its entitlement to costs and attorneys’ fees under 17 U.S.C. § 505. Accordingly, its motion for costs and fees (document no. 100) is granted. All that remains is to determine the amount.
VTW initially requested an award of $118,631.933 and has since requested an additional $1,840, representing fees generated by its review of and reply to Timberpeg’s objection to its fee request. Timberpeg counters that the amount requested by VTW is unreasonable, and seeks several specific reductions, each of which is addressed below.
Under the fee-shifting provisions of the Copyright Act, as “[u]nder most federal fee-shifting statutes . . . the trial judge must determine ‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.’” Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “In implementing this lodestar approach, the judge calculates the time counsel spent on the case, subtracts duplicative, unproductive, or excessive hours, and then applies prevailing rates in the community (taking into account the qualifications, experience, and specialized competence of the attorneys involved).” Gay Officers, 247 F.3d at 295 (citing Lipsett v.
3 This figure includes $772.50 in billings from two previous attorneys, plus 553 hours of Attorney Whittington’s time, billed at $200 per hour, and 56 hours of Attorney Whittington’s paralegal’s time, billed at $85 per hour.
Blanco, 975 F.2d 934, 937 (1st Cir. 1992); United States v. Metro. Dist. Comm’n, 847 F.2d 12, 15-17 (1st Cir. 1988); Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950-51 (1st Cir. 1984)).
Timberpeg correctly points out that VTW has not offered affidavits or other evidence supporting the reasonableness of Attorney Whittington’s hourly rate of $200. But based upon the court’s knowledge of legal practice in New Hampshire, $200 per hour falls comfortably within the range of reasonable billing rates for practitioners of Attorney Whittington’s level of experience and ability.
Timberpeg argues that $53,837 should be deducted from VTW’s award, to prevent VTW from realizing a windfall. Timberpeg points to the fee arrangement between VTW and Whittington, and suggests that the actual fee charged will be less than that claimed in the fee petition. But unlike the fee agreement in Jewish Employment & Vocational Service, Inc. v. Pleasantville Educational Supply Corp., 601 F. Supp. 224 (E.D. Pa. 1983), under which the attorney charged half his usual fee but promised to
pursue full reimbursement and allow the client to pocket the difference, the fee agreement between VTW and Attorney Whittington explicitly precludes any such outcome. All fees collected by VTW will be paid to Whittington’s firm, at the full billing rate. That the client might incur a reduced obligation if full fees are not recovered is a benefit that does not extend to Timberpeg, nor should it. Accordingly, the requested reduction, based upon Jewish Employment, is denied.
Timberpeg requests an additional reduction of ten percent, based upon the alleged lack of detail in Attorney Whittington’s billing records. This is not a case like Grendel’s Den, where there was an absence of contemporaneous billing records. 749 F.2d at 951. Nor is it a case like Yankee Candle, in which the prevailing defendant’s request for fees was reduced by ten percent primarily because of “the rather substantial amount of time [the defendant’s] attorneys spent in conferences with each other.” 140 F. Supp. 2d at 125. Timberpeg has not identified any specific “excessive hours, duplication of services, [or] fruitless pursuits,” id. (citation omitted), and it is not entitled to a ten-percent reduction in fees.
Timberpeg also argues that VTW’s fee award should be reduced by $4,640 - the amount billed for VTW’s unsuccessful motion to dismiss. But that motion, while denied, was neither tangential nor frivolous. Rather, work on the motion to dismiss, which focused on the same issues raised in the subsequent motion for summary judgment, contributed to VTW’s success on that latter motion and was, therefore, neither fruitless nor unproductive.
Timberpeg also contends that Attorney Whittington spent excessive time on VTW’s motion for summary judgment and that VTW’s request for $18,000 in fees for that motion should be reduced by fifty percent. In Timberpeg’s words, “[t]o a significant extent, defense counsel billed for his education in copyright law for which Timberpeg should not be forced to pay.” Attorney Whittington’s billing records disclose that over the course of the entire case, the number of hours he and his paralegal devoted to legal research fell somewhere between 31 and
131. In those billing records, 31 hours are accounted for by entries listing only research activities, while another 100 hours are accounted for in listings that include both research and other activities. Assuming that half the time represented by
those mixed entries was devoted to research, VTW seeks reimbursement for approximately 80 hours of research time. That seems a reasonable amount of time to have devoted to legal research, over seventeen months, in a case whose complexity flowed, largely, from Timberpeg’s legal theory.
Timberpeg argues, as well, that VTW’s request for fees should be reduced by $5,405, the amount Attorney Whittington billed for representing Kim Hentschel at her deposition. While Hentschel was no longer a VTW employee at the time of her deposition, she was employed by VTW at the time Isbitski dealt with the company, and those dealings were the subject of the deposition. Attorney Whittington billed VTW, not Hentschel, for the cost of representing Hentschel at the deposition. But whether he was, strictly speaking, representing Hentschel, or attended the deposition on behalf of VTW, or both, the fees would have been substantially identical. The record suggests that Whittington’s representation was dual but the fees charged were not. VTW was properly charged for that time for services rendered to it.
Timberpeg also challenges: (1) an invoice dated December 29, 2004, in the amount of $2,250, which VTW subsequently identified as an expert witness fee; (2) another expert witness fee of $1,350, on an invoice dated April 12, 2005; and (3) a $229.50 billing for legal research and a memorandum related to VTW’s inadvertent disclosure of information to Timberpeg during discovery.
VTW may not recover expert witness fees. “[C]osts that may be assessed to reimburse a prevailing party [in a copyright infringement case] for its expert witness fees are limited to the $40 limit provided for in 28 U.S.C. § 1821(b).” Artisan Contractors Ass’n of Am., Inc. v. Frontier Ins. Co., 275 F.3d 1038, 1040 (11th Cir. 2001); see also Pinkham v. Camex, Inc., 84 F.3d 292, 295 (8th Cir. 1996) (“we conclude costs under 17 U.S.C. § 505 are limited to the costs expressly identified in 28 U.S.C. § 1920, and that expert witness fees in excess of the 28 U.S.C. § 1821(b) $40 limit are not recoverable”); Barrera v. Brooklyn Music, Ltd., 346 F. Supp. 2d 400, 406 (S.D.N.Y. 2004) (“Given that the authority provided by § 505 of the Copyright Act mirrors that of 28 U.S.C. § 1920 recovery [of expert witness fees in
excess of $40] is also barred under the Copyright Act.”); NLFC, 916 F. Supp. at 764 (denying expert witness fees in excess of $40 in copyright infringement case). Accordingly, VTW’s fee request must be reduced by $3,600, the amount of the expert witness fees.
Finally, regarding the $229.50 billing for research into remedies for VTW’s inadvertent disclosure of information to Timberpeg during discovery, it is perhaps more appropriate that VTW bear that cost. After all, the work was necessary only because VTW was careless. It is a small amount, but Timberpeg’s point is well taken. The fee request is reduced by $229.50.

Conclusion
For the reasons given, Attorney Whittington’s hourly rate, and that of his paralegal, are reasonable. The hours expended on VTW’s defense against Timberpeg’s claims are also reasonable, for the following reasons: (1) duplication of effort and excessive consultation were minimized by Attorney Whittington’s status as a sole practitioner; (2) the case involved several complicated discovery disputes; (3) the case was vigorously contested on both sides; and (4) the stakes were high for VTW due to the company’s
relatively small size and the potentially debilitating effect of an unfavorable outcome. Because the hourly rates and the number of hours expended on the defense of this case are both reasonable, the lodestar figure that results from multiplying the latter by the former is presumed reasonable. Accordingly, VTW is entitled to costs and attorneys’ fees in the amount of $116,642.43. That figure represents VTW’s original request, plus the cost of litigating the issue of fees ($1,840), minus the non­recoverable expert witness fees ($3,600), and the fee associated with the inadvertent disclosure ($229.50).
SO ORDERED.

November 8, 2005
cc: W. E. Whittington, IV, Esq. Daniel E. Will, Esq.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
T-Peg, Inc. and TimberpegEast, Inc.,
Plaintiffs
v. Civil No. 03-462-SM
Opinion No. 2005 DNH 017Stanley J. Isbitski, VermontTimber Works, Inc. andDouglas S. Friant,
Defendants
 
O R D E R
T-Peg, Inc. and Timberpeg East, Inc. (collectively
“Timberpeg”) have sued in eight counts, asserting claims of:
1
copyright infringement against Stanley Isbitski , Vermont Timber
Works, Inc. (“VTW”), and Douglas Friant (Counts I, II, and VIII);
breach of contract against Isbitski (Count III); unjust
enrichment against Isbitski and VTW (Counts IV and V); unfair
competition against VTW (Count VI); and violation of the New
Hampshire Consumer Protection Act against VTW (Count VII). Those
1 Plaintiffs named Isbitski as a defendant in their originalcomplaint, filed a voluntary stipulation for dismissal ofIsbitski on June 1, 2004 (document no. 22), and have named him asa defendant in their amended complaint, filed October 26, 2004(document no. 39). Isbitski has not appeared, and appears neverto have been served.
claims arise out of VTW’s alleged use of Timberpeg’s copyrighted architectural plans to build a timber frame for Isbitski. Defendant Friant is one of the two owners of VTW. Before the Court are: (1) VTW’s motion for summary judgment on Counts II, V, VI and VII (document no. 23); (2) Timberpeg’s cross-motion for summary judgment on the issue of copying, as it relates to Count II (document no. 25); (3) VTW’s motion to strike portions of Timberpeg’s objection to summary judgment (document no. 29); (4) VTW’s motion for judgment on the pleadings in which it seeks dismissal of Counts V, VI, and VII and all claims for damages (document no. 33); and (5) VTW’s motion for summary judgment on Count II on grounds of non-copyrightability and lack of profits related to the alleged copyright infringement (document no. 44). While the court obviously must rule on each of the five motions before it, the balance of this order is organized by count, rather than by motion.

The Legal Standard
Summary judgment is appropriate when the record reveals “no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c). “A ‘genuine’ issue is one that could be resolved in favor of either party, and a ‘material fact’ is one that has the potential of affecting the outcome of the case.” Calero-Cerezo
v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986)).
“The role of summary judgment is to pierce the boilerplate of the pleadings and provide a means for prompt disposition of cases in which no trial-worthy issue exists.” Quinn v. City of Boston, 325 F.3d 18, 28 (1st Cir. 2003) (citing Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir. 2000)).
“Once the movant has served a properly supported motion asserting entitlement to summary judgment, the burden is on the nonmoving party to present evidence showing the existence of a trialworthy issue.” Gulf Coast Bank & Trust Co. v. Reder, 355 F.3d 35, 39 (1st Cir. 2004) (citing Anderson, 477 U.S. at 248; Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). To meet that burden the nonmoving party, may not rely on “bare allegations in [his or her] unsworn pleadings or in a lawyer’s brief.” Gulf Coast Bank & Trust, 355 F.3d at 39 (citing Rogan v. City of Boston, 267 F.3d 24, 29 (1st Cir. 2001); Maldonado-Denis
v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994)). When ruling on a party’s motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. See Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 37 (1st Cir. 2003) (citing Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 185 (1st Cir. 2003)).

Background
T-Peg, Inc. owns a family of companies that “promote, design, manufacture and sell TIMBERPEG® brand post and beam home packages.” (Pls.’ Obj. to Summ. J., Ex. A (Pattison Aff.) ¶ 2.) Timberpeg East, Inc. and Timberpeg Services, Inc. are members of the Timberpeg family of companies. (Pattison Aff. ¶ 3.)
Timberpeg East, Inc. is a wholly owned subsidiaryof T-Peg, Inc., and is responsible for sales ofTIMBERPEG® product[s] in the northeast United States.Timberpeg Services, Inc., also a wholly ownedsubsidiary of T-Peg, Inc., provides design, draftingand manufacturing services to Timberpeg East as well asother related Timberpeg companies operating in regionsother than the northeast.
(Pattison Aff. ¶ 4.)
In late 1999, Stanley Isbitski began discussions with
Timberpeg East concerning the possibility of purchasing a
Timberpeg package. On November 1, 1999, he executed a “Deposit
Agreement for TIMBERPEG® Preliminary Plans and Drawings.”
(Def.’s Mot. Summ. J., Ex. 7.) The terms of that agreement
include the following:

1.  Company [Timberpeg East] will furnish Customer withsets of Preliminary Plans. Such Plans will include: basement plan, floor plans, four (4) elevations, and atypical building cross section. Construction Plans,including foundation plans and details and includingdetails of our standard construction techniques, willbe supplied after the Preliminary Plans have beenapproved in writing. These Construction Plans may beused for planning the construction process, orderingmaterials, obtaining contractor bids, and securing abuilding permit. In some jurisdictions the PreliminaryPlans may suffice for this purpose.
2. Final Plans, which include the frame design, willnot be prepared as a part of the Deposit contemplatedby this Agreement. Final Plans will be prepared aspart of the contract for purchase of a Package and willbe available prior to the shipment of the Package.

. . .
Company and/or its assigns owns and will continue toown the copyright in the Plans [including preliminary,construction, and final plans]. The Plans may be used
by Customer solely in connection with the evaluationand construction of one (1) Package purchased fromCompany. Any other use of the Plans, including, butnot limited to, the following, is an unauthorizedappropriation of copyright by Customer and a breach ofthis Agreement: a) the copying of all or any part ofthe Plans; b) the utilization or partial utilization ofthe Plans for the construction of a similar building orstructure; or c) any transfer or delivery of the Plansto another person without written authorization fromCompany.
(Def.’s Mot. Summ. J., Ex. 7 (emphasis in the original).)
On December 29, 1999, Timberpeg East provided Isbitski with
a set of preliminary plans (hereinafter “first preliminary
plans”). (Pls.’ Obj. to Summ. J., Ex. D (Cole Aff.) ¶ 2.)
After consulting with Isbitski, Timberpeg East presented him
with a second set of preliminary plans on April 20, 2001. (Cole
Aff. ¶ 3.) The second set of preliminary plans consisted of five
sheets: (1) a cover page; (2) a sheet titled “first floor plan;”2
(3) a sheet titled “second floor plan;” and (4) two sheets titled
“elevation,” each containing two elevation drawings. (Def.’s
2 The first floor plan depicts a house and a garage,connected by a covered breezeway.
6
Mot. Summ. J., Ex. 1.) The house depicted in the second set of preliminary plans is fifty-two feet by forty-four feet and appears to have timber framing throughout (Def.’s Mot. Summ. J., Ex. 1 at 2), but the second set does not include any drawings of the frame design (Def.’s Mot. Summ. J., Ex. 12 (Vincent Aff.) at 97-99).
Timberpeg registered the second set of preliminary plans with the United States Copyright Office, effective May 18, 2001 (id. at 5), and, at some point, Isbitski filed a copy of the second set with the Salisbury Building Department (Cole Aff. ¶ 6). At about the same time it produced the second set, Timberpeg produced additional plans for Isbitski’s house that were not submitted to the Copyright Office. (Vincent Dep. at 78-79.) Those plans included a preliminary isometric, showing a frame that utilized “two purlin frames with common rafters,” (id. at 80), a framing system that is different from a so-called “bent system” (id.). In a memorandum dated May 2, 2001, Timberpeg East’s regional manager, Lynn Cole, noted: “Stan [Isbitski] has asked for one significant change. He wants to change the timber frame in the main house (a P20K8-44' + 8' shed) from our standard
Purling frame (main purlin / secondary Rafters) to a Bent type frame w/main rafters & secondary purlins.” (Def.’s Mot. Summ. J., Ex. 9A.)
Based upon continued discussions with Isbitski, Timberpeg revised the second set of preliminary plans, and on September 19, 2001, provided him with construction plans. (Cole Aff. ¶ 4.) While the construction plans called for a bent-style frame (id.), they, like the second set of preliminary plans, did not include frame drawings.3 (Cole Aff., Ex. 1.) The constructions plans were not registered with the Copyright Office. Timberpeg never produced final plans for Isbitski, and thus, never provided him with a frame design. Isbitski did not purchase a package from Timberpeg.
While he was negotiating with Timberpeg, Isbitski was also negotiating with Vermont Timber Works (“VTW”), a company that designs and builds timber frames. (Def.’s Mot. Summ. J., Ex. 17
3 The absence of frame drawings is consistent withTimberpeg’s policy of providing a frame design as part of thefinal plans rather than as part of the preliminary plans or theconstruction plans. (See Def.’s Mot. Summ. J., Ex. 7.)
(Friant Aff.) ¶ 1.) Isbitski’s initial meeting with VTW was in December, 2000. (Def.’s Mot. Summ. J., Ex. 16 (Hentschel Aff.) ¶ 4.) At that meeting, Isbitski showed Kim Hentschel, VTW’s Director of Sales and Marketing, Timberpeg’s first preliminary plans, which indicated that the Timberpeg design utilized a primary purlin - secondary rafter system, rather than the bent system Isbitski preferred. (Hentschel Aff. ¶ 7.) Isbitski either took the Timberpeg plans with him after his meeting with Hentschel, or left them with her for, at most, “a couple of days.” (Hentschel Aff. ¶ 4.) Hentschel has no recollection of ever seeing the copyrighted second set of preliminary plans at any time before March 6, 2004. (Hentschel Aff. ¶ 13.)
Doug Friant, VTW’s sole designer and draftsman, was also present at Isbitski’s initial meeting with VTW. (Friant Aff. ¶¶ 1, 4.) Friant perused Isbitski’s Timberpeg plans (i.e., the first preliminary plans) but did not examine them carefully because they employed a purlin-rafter design, rather than the bent design Isbitski wanted. (Friant Aff. ¶ 4.) Friant has testified that he did not use the first preliminary plans in any way in designing a frame for Isbitski, and never saw the
copyrighted second set of preliminary plans until after the start of this litigation. (Friant Aff. ¶¶ 9, 10.)
On March 8, 2002, Isbitski agreed to purchase a VTW bent-system timber frame. (Cole Aff. ¶ 11.) Between February and May, 2002, Friant designed a bent-system frame for Isbitski’s residence, and produced a series of seven shop drawings consisting of: (1) one sheet titled “Perspectives;” (2) one sheet titled “Post Layout;” (3) one sheet titled “2nd Fl Framing/Roof Framing; (4) one sheet titled “Bent Profiles;” (5) one sheet titled “Line Profiles;” and (6) two sheets titled “Details.” (Def.’s Mot. Summ. J., Ex. 2.) The frame depicted in the VTW shop drawings measures approximately twenty-eight feet by forty-four feet. (Def.’s Mot. Summ. J., Ex. 2 at 2.) In June, 2002, VTW erected the timber frame depicted in Friant’s shop drawings on Isbitski’s property. (Friant Aff. ¶ 12.) VTW did not provide Isbitski with anything other than a timber frame. (Friant Aff. ¶ 14.) Isbitski never finished the house.
Lynn Cole discovered that a timber frame had been erected on Isbitski’s property, and that the second set of preliminary plans
prepared by Timberpeg had been placed on file at the Salisbury Building Department, prompting Timberpeg to file this suit.

Discussion
A. Count II
In Count II, Timberpeg asserts that: (1) “Vermont Timber improperly copied the Plans or caused them to be copied without Timberpeg’s authorization” (Am. Compl. ¶ 44); (2) “Vermont Timber improperly utilized the Plans or caused the Plans to be utilized in the manufacture of a timber frame and the assembly of that timber frame for the Isbitski House” (Am. Compl. ¶ 45); and (3) “[t]he Isbitski House, which incorporates Vermont Timber’s timber frame, which timber frame is aesthetically and structurally integral to the Isbitski House, is substantially similar to the architectural work embodied in the Plans” (Compl. ¶ 46).4 VTW moves for summary judgment, arguing that: (1) there is no
4 While Timberpeg asserts in its complaint that the Isbitskihouse is substantially similar to the house depicted in thesecond set of preliminary plans, it shifts position in itsobjection to summary judgment, arguing that “VTW’s frameconstitutes an unlawful copy of Timberpeg’s architectural workreflected in Timberpeg’s copyrighted architectural plans.”(Pls.’ Obj. to Summ. J. at 12.)
evidence of direct copying; (2) there is no evidence that it had access to the copyrighted work; (3) VTW’s timber frame is not substantially similar to the architectural work embodied in the second set of preliminary plans; (4) “buildings” are protected by copyright, but “other structures” are not; and (5) Timberpeg East is not a copyright owner.
“To prevail on a claim of copyright infringement, the plaintiff must show both ownership of a valid copyright and illicit copying.” Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 33 (1st Cir. 2001) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); Matthews v. Freedman, 157 F.3d 25, 26-27 (1st Cir. 1998)).
The element of copying is established by means of a two-part test. Yankee Candle, 259 F.3d at 33.
First, a plaintiff must prove that the defendant copiedthe plaintiff’s copyrighted work, either directly orthrough indirect evidence. Segrets, Inc. v. GillmanKnitwear Co., 207 F.3d 56, 60 (1st Cir. 2000). Second,“the plaintiff must prove that the copying of thecopyrighted material was so extensive that it renderedthe infringing and copyrighted works ‘substantially
similar.’” Id.; see also Skinder-Strauss Assocs. v.Mass. Continuing Legal Educ., Inc., 914 F. Supp. 665,672 (D. Mass. 1995) (“Even evidence of actual copyingmay be insufficient, however, if this copying was notsubstantial.”).
Id. (footnote omitted).
Indirect evidence of copying will suffice, if a plaintiff presents “evidence that the alleged infringer had access to the copyrighted work and that the offending and copyrighted works are so similar that the court may infer that there was factual copying (i.e., probative similarity).” CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1513 (1st Cir. 1996) (quoting Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 813 (1st Cir. 1995)).
Regarding the second prong of the test for copying, substantial similarity:
Whether there is substantial similarity betweencopyrightable expressions is determined by the“ordinary observer” test. Concrete Mach. Co. v. Classic Lawn Ornaments, 843 F.2d 600, 607 (1st Cir.1988). “The test is whether the accused work is so
similar to the plaintiff’s work that an ordinaryreasonable person would conclude that the defendantunlawfully appropriated the plaintiff’s protectedexpression by taking material of substance and value.”Id. (quoting Educ. Testing Servs. v. Katzman, 793 F.2d533, 541 (3d Cir. 1986)).
Yankee Candle, 259 F.3d at 33.
As a preliminary matter, plaintiff’s theory “that VTW’s frame constitutes an unlawful copy of Timberpeg’s architectural work reflected in Timberpeg’s copyrighted architectural plans” (Pls.’ Mem. of Law at 12) is legally incorrect. It is well established “that a building is not a ‘copy’ of the underlying plans, with the result that construction of the structure does
not constitute infringement.” 1 MELVILLE B. NIMMER & DAVID NIMMER,
NIMMER ON COPYRIGHT § 2.08[D][2][a] at 2-125 (2004 (Rel. 63, Apr.
2004)). “A person cannot, by copyrighting plans, prevent the building of a house similar to that taught by the copyrighted plans . . . .” Robert R. Jones Assocs., Inc. v. Nino Homes, 858 F.2d 274, 280 (6th Cir. 1988) (quoting Herman Frankel Org. v. Tegman, 367 F. Supp. 1051, 1053 (E.D. Mich. 1973)). Thus, “one may construct a house which is identical to a house depicted in copyrighted architectural plans, but one may not directly copy
those plans and then use the infringing copy to construct the house.” Jones, 858 F.2d at 280.
Hunt v. Pasternack, 179 F.3d 683 (9th Cir. 1999), a case on which plaintiffs rely, is not to the contrary. While the opinion in Hunt explains that “[t]he House Report, in its explanation of the effective date provisions, also makes clear that an unconstructed work, embodied only in plans or drawings, can be infringed by a structure that embodies the copied design,” id. at 685-86 (citing H.R. REP. NO. 101-735, at 23 n.53, reprinted in 1990 U.S.C.C.A.N. at 6954), the opinion also states that “[t]he only issue that we must decide is whether the district court erred as a matter of law in ruling that a valid copyright in an architectural work can subsist only in a work that has been constructed,” id. at 684 (emphasis added). Thus, the court in Hunt did not consider whether a building can constitute a copy of an architectural work.
Because the timber frame VTW built cannot be a copy of the architectural work embodied in Timberpeg’s copyrighted second set
of preliminary plans, the only potentially infringing copy in this case is the set of shop drawings Friant drafted.
As there is no direct evidence of copying, plaintiff’s claim rests on indirect evidence. While the parties disagree on the access element, the court assumes that VTW had access not only to the first, but also to the copyrighted second set of preliminary plans, based on the undisputed fact that Isbitski had possession of those plans. See Rottlund Co. v. Pinnacle Corp., No. Civ.01­1980 DSD/SRN, 2004 WL 1879983, at *21 (D. Minn. Aug. 20, 2004) (quoting Kootenia Homes, Inc. v. Reliable Homes, Inc., No. 00­1117, 2002 WL 15594, at *5 (D. Minn. Jan. 3, 2002) (“Plaintiff may prove access by showing that a third person with creative input for the designer has had access to the copyrighted work”)) (other citations omitted); see also Arthur Rutenberg Corp. v. Parrino, 664 F. Supp. 479, 481 (M.D. Fla. 1987) (quoting Kamar Int’l, Inc. v. Russ Berrie & Co., 657 F.2d 1059, 1062 (9th Cir. 1981) (quoting NIMMER ON COPYRIGHT, § 13.02[A] at 13-11 (1981))).
But even assuming VTW had access to the copyrighted second set of preliminary plans, plaintiff’s infringement claim fails
because the allegedly infringing work, VTW’s shop drawings, lack probative similarity to the second set of preliminary plans. That is, the second set of preliminary plans and VTW’s shop drawings are not “so similar that the court may infer that there was factual copying.” CMM Cable Rep, 97 F.3d at 1513 (citation omitted). The second set includes no frame drawings. The VTW shop drawings depict nothing other than a timber frame. The second set consists of four elevations and two floor plans, which include locations for timber posts. The VTW shop drawings include no elevations, and the closest thing to a floor plan in the shop drawings is a sheet titled “Post Layout.” However, plaintiff’s own expert has testified that of the twenty-seven posts in the VTW frame, twenty-five have a different size, shape, location, orientation, or notching from the equivalent post in the Timberpeg floor plan.5 (Def.’s (second) Mot. for Summ. J.
5 More specifically: (1) two of the VTW posts have noequivalent in the Timberpeg floor plan; (2) four of the VTW postsare of a different size than the corresponding Timberpeg posts;
(3) four of the VTW posts have different locations than thecorresponding Timberpeg posts; (4) four of the VTW posts areoriented differently than the corresponding Timberpeg posts; (5)two of the VTW posts have different notching than thecorresponding Timberpeg posts; (6) two of the VTW posts are notcontinuous while the corresponding Timberpeg posts are; (7) oneof the VTW posts differs from the corresponding Timberpeg post inboth location and notching; (8) one of the VTW posts differs fromthe corresponding Timberpeg post in both location and size; (9)
(document no. 44), Ex. 29 (Vincent Dep. II) at 57-69 and Ex. 30.) In short, the VTW shop drawings do not bear any probative similarity to the second set of preliminary plans beyond the reality that both relate, generally, to houses with the same basic dimensions. Thus, defendants did not copy Timberpeg’s copyrighted second set of preliminary plans.
Even had VTW copied the second set, Timberpeg’s infringement claim would still fail because the allegedly infringing shop drawings are not substantially similar to the second set of preliminary plans. “In the words of Judge Learned Hand, two works are substantially similar if ‘the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.’” Concrete Machinery, 843 F. 2d at 607 (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960); citing Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966)). Here, because the two sets of plans are
five of the VTW posts differ from the corresponding Timberpegposts in both size and shape; and (10) two of the VTW posts areidentical to their Timberpeg counterparts in size, shape,location, orientation, notching, and continuousness. (Def.’s(second) Mot. Summ. J., Ex. 30.)
fundamentally different kinds of drawings, the ordinary observer is faced not with the detection of differences, but with the detection of similarities, which are few. Timberpeg produced elevations and floor plans; VTW did not. VTW’s shop drawings depict a timber frame; Timberpeg produced no frame drawings. Only two of the twenty-seven posts in VTW’s “Post Layout” drawing have the same characteristics (size, shape, etc.) as the corresponding posts in the Timberpeg floor plan. The copyrighted second set of preliminary plans and the VTW shop drawings may suggest the same style house, but that does not make the two sets of drawings substantially similar. “Substantial similarity . . . refers only to the expression of the artist’s concept, not the underlying idea itself; mere identity of ideas expressed by two works is not substantial similarity giving rise to an infringement action.” Concrete Machinery, 843 F.2d at 606 (citing 17 U.S.C. § 102(b); Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 615 (7th Cir. 1982); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547 (1985)).
It may well be that VTW designed – and drew plans for – a timber frame that would support a house just like that depicted in the Timberpeg floor plans and elevations. But, for purposes of a copyright infringement action, VTW’s alleged retro-fitting, or reverse engineering, does not render VTW’s shop drawings a copy of Timberpeg’s floor plans and elevations. “An artist ‘can claim to “own” only an original manner of expressing ideas,’ not the ideas themselves.” Concrete Machinery, 843 F.2d at 606 (quoting Cooling Sys. & Flexibles v. Stuart Radiator, 777 F.2d 485, 491 (9th Cir. 1985)). Here, what is shared by the Timberpeg floor plans and the VTW shop drawings is the idea of a twenty-eight by forty-four foot part of a house, with a stair bay located in a particular position. While Timberpeg’s particular expression of that idea is protected by copyright, that protection does not prevent everyone else from expressing those same ideas in an entirely different way, as VTW did in its shop drawings. VTW’s shop drawings are just another way of expressing an idea – the layout of the house Isbitski wanted to build – not a copy of Timberpeg’s expression of that idea. Accordingly, even if VTW did just what Timberpeg accuses it of doing, looking at the second set of preliminary plans and then designing a frame to
support the house concept depicted therein, that act simply does not constitute copyright infringement. Use of a copyrighted work, when that use does not involve copying, does not infringe. See Jones, 858 F.2d at 280.
B. Counts V, VI, and VII
VTW argues that it is entitled to judgment as a matter of law on Timberpeg’s state law claims for unjust enrichment (Count V), unfair competition (Count VI), and violation of the New Hampshire Consumer Protection Act (Count VII). According to VTW, all three claims are pre-empted by section 301 of the Copyright Act because none alleges any wrongful act other than unlawful copying of its copyrighted plans. In the alternative, VTW argues that if Timberpeg’s copyright claim is dismissed, the state law claims should also be dismissed due to Timberpeg’s failure to adequately allege damages sufficient to meet the $75,000 jurisdictional limit. Timberpeg “concedes that, to the extent its state law claims create only rights equivalent to those provided by the copyright statute, those claims are preempted,” (Def.’s Mem. of Law at 24), but argues that summary judgment on defendant’s preemption theory is premature in that its state law
claims would provide an alternate avenue of relief should
Timberpeg lose on its copyright infringement claim. Timberpeg
further argues that the record as developed, and the reasonable
inferences drawn from that record, support a finding that its
unfair competition, and consumer protection act claims are based
upon alleged wrongdoing separate from the conduct that underlies
its copyright infringement claim.
The preemption provision of the Copyright Act provides, in
pertinent part:
On and after January 1, 1978, all legal orequitable rights that are equivalent to any of theexclusive rights within the general scope of copyrightas specified by section 106 in works of authorship thatare fixed in a tangible medium of expression and comewithin the subject matter of copyright as specified bysections 102 and 103, whether created before or afterthat date and whether published or unpublished, aregoverned exclusively by this title. Thereafter, noperson is entitled to any such right or equivalentright in any such work under the common law or statutesof any State.
17 U.S.C. § 301(a). As the court of appeals for this circuit has
explained:
Section 301(a) precludes enforcement of any statecause of action which is equivalent in substance to afederal copyright infringement claim. See generallyGates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d823, 846-47 (10th Cir. 1993); Trandes Corp. v. Guy F.Atkinson Co., 996 F.2d 655, 658-60 (4th Cir.), cert.denied, 510 U.S. 965 (1993); 1 NIMMER § 1.01[B][h], at1-35 to 1-36.1. Courts have developed a functionaltest to assess the question of equivalence. “[I]f astate cause of action requires an extra element, beyondmere copying, preparation of derivative works,performance, distribution or display, then the statecause of action is qualitatively different from, andnot subsumed within, a copyright infringement claim andfederal law will not preempt the state action.” Gates Rubber, 9 F.3d at 847 (citing Computer Assocs. Int’l,Inc. v. Altai, Inc., 982 F.2d 693, 716 (2nd Cir.1992)).
Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1164
(1st Cir. 1994) (footnote and parallel citations omitted).
1. Count V (Unjust Enrichment)
In Count V, Timberpeg asserts that VTW is liable for unjust
enrichment because “[b]y tracing, digitizing, copying and/or
otherwise utilizing the Plans, Vermont Timber saved considerable
cost in its manufacture of construction materials for the
Isbitski House.” (Am. Compl. ¶ 59.) According to the leading
treatise in the field of copyright law, “a state law cause of
action for unjust enrichment or quasi contract should be regarded as an ‘equivalent right’ and hence, pre-empted.” 1 NIMMER, supra, § 1.01[B][1][g]. As Count V alleges no conduct other than copying, and Timberpeg suggests no additional element necessary to prove its unjust enrichment claim, that claim is deemed preempted by the Copyright Act.
2. Count VI (Unfair Competition)
In Count VI, Timberpeg asserts that VTW is liable for unfair competition because “[w]ithout Timberpeg’s consent or approval, Vermont Timber used the Plans to manufacture, sell, and construct a timber frame for the Isbitski House” (Am. Compl. ¶ 67), and did so “even though the Plans bear Timberpeg’s name and copyright reservation” (Am. Compl. ¶ 68). In its complaint, Timberpeg does not specify any particular theory of unfair competition and alleges only a single act of wrongdoing by VTW, its alleged use of the second set of preliminary plans to design and build the timber frame it sold to Isbitski. According to Nimmer:
[C]rucial to liability under a deceptive trade
practices cause of action is the element of
misrepresentation or deception, which is no part of a
cause of action for copyright infringement. Thus,there is no pre-emption of the state law of fraud, norof the state law of unfair competition of the “passingoff” variety. If A claims that B is selling B’sproducts and representing to the public that they areA’s, that is passing off. If, by contrast, B isselling B’s products and representing to the publicthat they are B’s, that is not passing off. A claim that the latter activity is actionable because B’sproduct replicates A’s, even if denominated “passingoff,” is in fact a disguised copyright infringementclaim, and hence pre-empted.
1 NIMMER, supra, § 1.01[B][1][e].
As pled, Count VI is unquestionably of the “B selling B’s
products as B’s own” variety, and is, therefore, deemed
preempted. Presumably in an attempt to avoid judgment, Timberpeg
asserts, in its objection to summary judgment, that
a jury could infer that VTW knew that it was drawing aframe from Timberpeg’s architectural plans (or waswillfully blind to that fact), and allowed Isbitski toplace those plans on file at the Salisbury BuildingDepartment for purposes of obtaining a building permit,without ever correcting the record or taking any othersteps to insure that the general public, to whom thefiles of the Salisbury Building Inspector are open andavailable, did not think that VTW’s work was reallythat of Timberpeg.
(Pls.’ Mem. of Law at 25.) The only affirmative act that Timberpeg identifies, filing the second set of preliminary plans with the Salisbury Building Department, was performed by
6
Isbitski, not VTW, and Timberpeg identifies no legal theoryunder which VTW had a duty to prevent Isbitski from filing his Timberpeg plans.7 Moreover, even if VTW had placed the Timberpeg plans on file, those plans could not, as a logical matter, play any part in the “passing off” of VTW’s timber frame as a Timberpeg product because the Timberpeg plans did not include any frame drawings, and VTW designed, manufactured, and sold nothing but a timber frame. Timberpeg’s argument might be stronger if VTW had filed a set of frame drawings authored by Timberpeg, but as it is, the Timberpeg plans on file in the Salisbury town offices include no frame drawings and, therefore, literally say
6 In response to an interrogatory propounded by Timberpeg,VTW stated: “VTW had no dealings with the Town of Salisbury.”(Def.’s (second) Mot. Summ. J. (document no. 44), Ex. 31.)
7 Because Timberpeg alleges no conduct by VTW that could beunderstood as marketing, Timberpeg’s claim is substantiallydifferent from the unfair competition claim that was determinednot to be preempted in Intown Enterprises, Inc. v. Barnes, 721 F.Supp. 1263, 1267 (N.D. Ga. 1989) (citing Donald Frederick Evans &Assocs., Inc. v. Cont’l Homes, Inc., 785 F.2d 897, 914 (11th Cir.1986); B.H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254,1263 (5th Cir. 1971) (unfair competition claim goes to marketing,not copying)).
nothing about the source of the frame that VTW built. Because Count VI, even as recast in Timberpeg’s objection to summary judgment, does not describe a viable claim for “passing off,” Count VI is deemed preempted by the Copyright Act.
3. Count VII (Consumer Protection Act)
In Count VII, Timberpeg asserts that VTW violated New
Hampshire’s Consumer Protection Act (“CPA”), N.H. REV. STAT. ANN.
(“RSA”) § 354-A, “[t]hrough its willful, unlawful copying and use of Timberpeg’s Plans” which constituted “unfair or deceptive conduct toward Timberpeg.” (Am. Compl. ¶ 71.)
To the extent Timberpeg asserts a CPA claim arising out of VTW’s alleged copying of the second set of preliminary plans, that claim is preempted by the Copyright Act. Timberpeg attempts to create an extra element by asserting that:
[f]rom the chronology of Isbitski events, a jury couldinfer that VTW met with Isbitski, became aware he wasalso dealing with Timberpeg, an admitted competitor,discussed design changes with him, sent him back toTimberpeg to have design changes incorporated into hisarchitectural plans, and then used those architectural
plans to draw a frame, knowing Timberpeg’s business
included design and erection of timberframes.
(Pls.’ Mem. of Law at 25.) In Timberpeg’s view, the foregoing
conduct “would certainly ‘attain a level of rascality that would
raise an eyebrow of someone inured to the rough and tumble of the
world of commerce.’” (Pls.’ Mem. of Law at 25 (quoting Barrows v.
Boles, 141 N.H. 382, 390 (1996).) Presumably, Timberpeg is now
arguing that the “extra element” that gives it a CPA claim is
“rascality.”
Timberpeg’s argument, however, is foreclosed by Data
General, in which the court of appeals noted:
Not every “extra element” of a state claim willestablish a qualitative variance between the rightsprotected by federal copyright law and those protectedby state law. For example, a state claim of tortiousinterference with contractual relations may requireelements of awareness and intentional interference not necessary for proof of copyright infringement. And yet, such an action is equivalent in substance to acopyright infringement claim where the additionalelements merely concern the extent to which authors andtheir licensees can prohibit unauthorized copying bythird parties. Harper & Row, Publishers, Inc. v.Nation Enters., 723 F.2d 195, 201 (2d Cir. 1983), rev’don other grounds, 471 U.S. 539 (1985). Similarly, astate law misappropriation claim will not escape
preemption under Section 301(a) simply because a
plaintiff must prove that copying was not only
unauthorized but also “commercial[ly] immoral[,]” a
mere “label attached to [the same] odious business
conduct.” Mayer v. Josiah Wedgwood & Sons, Ltd., 601
F. Supp. 1523, 1535 (S.D.N.Y. 1985).
36 F.3d at 1164-65 (parallel citations omitted). Here, Timberpeg has identified no facts – except allegedly suspicious timing – from which a jury could speculate that VTW might have sent Isbitski back to Timberpeg. But even assuming that VTW did send Isbitski back to Timberpeg to collect plans for it to copy, that alleged rascality amounts to no more than the commercial immorality identified in Data General as a “mere label” rather than an extra element of a cause of action. In other words, Timberpeg’s CPA claim of copying “with rascality” is preempted by the Copyright Act.
To the extent Count VII asserts a CPA claim based upon VTW’s use of the second set of preliminary plans, Timberpeg faces an even more fundamental problem. Specifically, VTW’s alleged use of Timberpeg’s copyrighted plans does not constitute “trade” or “commerce” as those terms are defined for purposes of the CPA. The CPA prohibits the use of “any unfair method of competition or
any unfair or deceptive act or practice in the conduct of any trade or commerce within this state.” RSA 358-A:2. In turn,
“[t]rade” and “commerce” shall include theadvertising, offering for sale, sale, or distributionof any services and any property, tangible orintangible, real, personal or mixed, and any otherarticle, commodity, or thing of value wherever situate,and shall include any trade or commerce directly orindirectly affecting the people of this state.
RSA 358-A:1, II. “Although the Consumer Protection Act ‘is a comprehensive statute whose language indicates that it should be given broad sweep . . . it is not unlimited in scope.” Hughes v. DiSalvo, 143 N.H. 576, 578 (1999) (quoting Roberts v. Gen. Motors Corp., 138 N.H. 532, 538 (1994)). Where, as here, a plaintiff identifies no conduct on the part of the defendant that involves the advertizing or distribution of goods or services, the CPA does not apply. And, of course, Timberpeg’s failure to identify any conduct that qualifies as trade or commerce explains why VTW’s allegedly wrongful act, using Timberpeg’s plans, bears no resemblance to any of the unlawful acts listed in RSA 358-A:2, I­XIV, another reason why Timberpeg’s CPA claim fails. In short, “[t]he purpose of the [Consumer Protection] Act ‘is to ensure an equitable relationship between consumers and persons engaged in
business,’” Hughes, 143 N.H. at 579 (quoting McGrath v. Mishara, 434 N.E.2d 1215, 1222 (Mass. 1982)), and Timberpeg has identified no way in which it is an aggrieved consumer, nor has it identified any other consumer who was harmed by VTW’s use of the Timberpeg plans.

Conclusion
For the reasons given, VTW’s motion for summary judgment on Counts II, V, VI and VII (document no. 23) is granted. Accordingly, Timberpeg’s cross motion for summary judgment on the issue of copying as it relates to Count II (document no. 25) is denied, and VTW’s motion to strike (document no. 29), motion for judgment on the pleadings (document no. 33), and second motion for summary judgment (document no. 44) are all moot.
Because VTW has prevailed on all counts, it is entitled to entry of judgment in its favor. Furthermore, because the VTW shop drawings are not copies of Timberpeg’s copyrighted second set of preliminary plans, and do not constitute a substantially similar infringing copy, Friant cannot be liable for copyright
infringement and is, on that basis, entitled to judgment as a matter of law on Count VIII.
All that remains of this case, if anything, are the three claims against Isbitski - Counts I, III, and IV. Isbitski’s status in this case is somewhat difficult to determine, as plaintiffs filed a voluntary stipulation of dismissal against him, but subsequently filed an amended complaint that included the same three counts against him. While Isbitski appears to be a named party in this case, it seems unlikely that plaintiffs intended to reinstitute identical claims against him, given their previous stipulation of dismissal. Rather, inclusion of Isbitski in the amended complaint was, in all likelihood, a clerical error and will be treated as such, unless counsel advises the court differently within ten (10) days of the date of this order. Accordingly, the claims against Isbitski are dismissed without prejudice.
The Clerk shall enter judgment in accordance with this order and close the case.

SO ORDERED.
Steven J. McAuliffe Chief Judge
February 9, 2005
cc: W. E. Whittington, IV, Esq.Daniel E. Will, Esq.

Case 1:03-cv-00462-SM Document 19 Filed 04/29/2004 Page 1 of 3
 
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
T-Peg, Inc. andTimberpeg East, Inc.
v. Civil No. 03-462-M
Stanley J. Isbitski andVermont Timber Works, Inc.
O R D E R
 Defendant Vermont Timber Works, Inc. (“VTW”) moves to compel production of documents responsive to Request No. 13 and to compel the deposition of plaintiffs’ in-house counsel.1
1. Request to Produce No. 13
The request to produce:
All documents, including court pleadings,draft complaints, and letter to purportedinfringers, relating to any claim by eitherplaintiff, or by Timberpeg South, Inc.,Timberpeg West, Inc. or Timberpeg Pacific,Inc., that any person has infringed acopyright owned by any of them.
Plaintiffs object that the documents were not relevant and were
overly broad, unduly burdensome, and excessive in time frame. To
the extent that VTW relies on plaintiff having put its alleged
1The issue as to revised copyright language has beenresolved. See Document no. 17.
Case 1:03-cv-00462-SM Document 19 Filed 04/29/2004 Page 2 of 3
aggressive litigation attitude in issue to establish relevance they are wrong. That alleged attitude is not and will not be an issue. To the extent the request seeks information as to other suits involving the trademark at issue documents may lead to admissible evidence. The request as served is overly broad. Counsel are ordered to narrow the scope by discussion and produce non-privileged documents relating to the trademark at issue which are relevant or which may lead to admissible evidence.
2. Deposition of In-House Counsel
Plaintiffs’ counsel is fully capable, together with Mr. Woods, to prevent inquiry into privileged matters and/or to take appropriate action under Fed. R. Civ. P. 30(d)(4). The deposition may go forward but defense counsel is not to inquire into privileged areas nor areas that are not relevant nor likely to lead to admissible evidence. Clearly Mr. Woods may be asked about his activities relating to the claim which are not privileged or work product.
2
Case 1:03-cv-00462-SM Document 19 Filed 04/29/2004 Page 3 of 3
The motion (document no. 15) is granted in part and denied in part.

SO ORDERED.
James R. Muirhead United States Magistrate Judge
Date: April 29, 2004
cc:   William E. Whittington, Esq.Daniel E. Will, Esq.

 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
T-Peg, Inc. andTimberpeg East, Inc.
v. Civil No. 03-462-M Vermont Timber Works, Inc.
O R D E R
Defendant moves to compel production of documents from which Timberpeg’s lost gross profit may be calculated. Plaintiff objects.
Background
Plaintiff in its Rule 26 disclosure claimed damages for lost gross profit but did not produce documentary support.1 Defendant followed up with interrogatory no. 17 on April 2, 2004 for the omitted material. Exhibit 2. On May 2, 2004 defendant objected, asserting privileges that are unlikely to apply, and essentially
1In its Rule 26(a)(1) disclosure plaintiff claimed a grossprofit margin of 50.78% but failed to comply with that part ofthe rule requiring production of the documents on which thecomputation was based.
providing a non-answer. Exhibit 3. No documents were supplied. Defense counsel again followed up on June 11th. Exhibit 4. On June 19th defense counsel agreed to supplement. Exhibit 5. On July 13, 2004 defendant provided the calculation derived from six jobs as its answer. Exhibit 7. No original documents to support the numbers were provided even though they were clearly required by the question. On August 12th defense counsel complained of the lack of original documents and also of the inability to determine whether the estimated gross lost profit calculation was taken from “cherry-picked jobs” or was representative of the average defendant job. Exhibit 9. The discovery request was thus expanded. After further delays plaintiff’s counsel objected to the discovery, both the overdue documents and the new request. Exhibit 13. In an apparent effort to make the requested discovery irrelevant plaintiff then announced that it was no longer seeking damages based upon its lost profits. Exhibit 17.
Discussion Plaintiff certainly has a right to seek
 (1) the copyright owners actual damages and any additional profits of the infringer, as provided by subsection (b); or
2
(2) statutory damages, as provided by
subsection (c). 28 U.S.C. § 504(a). In order to make the broadened discovery irrelevant plaintiff has committed itself to statutory damages and has made an election under 28 U.S.C. § 504(c). Plaintiff is ordered to amend its complaint to conform with this election. It will not be permitted to seek actual damages and any additional profits. The broader discovery - i.e., the jobs other than the six compromising the 50.78% calculations are irrelevant and as to the broader range the motion is denied.
However, all of the documents underlying the computation from the six (6) jobs are discoverable since any objection based on relevance was not asserted within the thirty (30) days required under Fed. R. Civ. P. 33(b)(3). The motion is granted as to those six jobs and is to be complied with within ten (10) days.
Given plaintiffs’ failure to comply with Rule 26(a)(1), its failure to comply with Rule 33 and the six months of “stone­walling”, it is to show cause within twenty (20) days why it should not be required to pay defendant’s costs in obtaining the
3
ordered discovery.2 See Fed. R. Civ. P. 37(a)(4).
The motion (document no. 32) is granted in part and denied in part as set forth above.

SO ORDERED.
James R. Muirhead United States Magistrate Judge
Date: November 19, 2004
cc:   W. E. Whittington, Esq.Daniel E. Will, Esq.
2Defense counsel should within ten (10) days submit itsstatement for fees and costs to plaintiffs’ counsel.
4

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
T-Peg, Inc. and Timberpeg East, Inc., Plaintiffs
v. Civil No. 03-cv-462-SM
Opinion No. 2005 DNH 152 Vermont Timber Works, Inc. and Douglas S. Friant,
Defendants
 
O R D E R
Defendants (collectively “VTW”) prevailed in plaintiffs’ (collectively “Timberpeg”) copyright infringement suit. Defendants now move for costs and attorneys’ fees. Plaintiffs object. For the reasons given below, VTW’s motion for attorneys’ fees is granted.
Under the Copyright Act, “the court in its discretion . . . may . . . award a reasonable attorney’s fee to the prevailing party as a part of the costs.” 17 U.S.C. § 505. A number of factors are properly considered in determining fee awards.
These factors include “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in
particular circumstances to advance considerations of compensation and deterrence.” Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 ([3d Cir.] 1986). We agree that such factors may be used to guide courts’ discretion, so long as such factors are faithful to the purposes of the Copyright Act and are applied to prevailing plaintiffs and defendants in an evenhanded
1
manner.
Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994). When assessing factors such as frivolousness and objective unreasonableness, the analysis should focus on what a party knew when it pressed a claim or defense, rather than on what decisions that party might have made with the benefit of the court’s subsequent resolution of the case. See InvesSys, Inc. v. McGraw-Hill Cos., 369 F.3d 16, 21 (1st Cir. 2004) (citing Tang v. R.I. Dep’t of Elderly Affairs, 163 F.3d 7, 13 (1st Cir. 1998)).
Here, it might be a stretch to say that Timberpeg’s suit was patently frivolous from the outset. When Timberpeg filed suit, its agents knew that: (1) Stanley Isbitski was a former client/customer for whom Timberpeg prepared several sets of house
1 “[T]he overriding purpose of the Copyright Act [is] to encourage the production of original literary, artistic, and musical expression for the public good.” Lotus Dev. Corp. v. Borland Int’l, Inc., 140 F.3d 70, 73 (1st Cir. 1998) (citing Fogerty, 510 U.S. at 534).
plans; (2) one set of Timberpeg’s plans had been placed on file by Isbitski with the Town of Salisbury; (3) Isbitski showed Timberpeg’s plans to VTW; (4) VTW designed a post-and-beam frame to support a portion of the house designed by Timberpeg; and (5) the house ultimately built on the VTW frame was substantially similar in appearance and lay-out to the house Timberpeg designed for Isbitski. Based upon that knowledge, Timberpeg could have plausibly thought, initially at least, that VTW copied its architectural plans.
Objective reasonableness, however, is a different matter. The objective reasonableness inquiry includes an examination of both the factual basis and the legal basis for a party’s claim or defense. Fogerty, 510 U.S. at 534 n.19.
Timberpeg argues, based upon the undisputed fact that the VTW frame was capable of supporting a portion of the house Timberpeg designed, that it was objectively reasonable for it to conclude, as a factual matter, that VTW’s “timberframe must have been prepared on the basis of [Timberpeg’s] architectural plans.” The reasonableness of that conclusion was bolstered, Timberpeg
contends, by its discovery, prior to filing suit, that Isbitski had actually shown Timberpeg’s plans to a VTW frame designer. While it might have been objectively reasonable, as a factual matter, for Timberpeg to have concluded that VTW based its frame design on the floor plans and elevations Timberpeg had prepared for Isbitski, it was certainly not reasonable for Timberpeg to conclude that VTW copied a Timberpeg frame design, since Timberpeg never designed a frame.
Timberpeg also contends that its legal theory of liability was objectively reasonable. Relying upon language from Hunt v. Pasternack, 192 F.3d 877 (9th Cir. 1999), and the legislative history of the Architectural Works Copyright Protection Act (“AWCPA”), Timberpeg grounded its copyright infringement claim on VTW’s “mere use[] of the plans to design a structure, as opposed to first duplicating the plans [and] then using the duplicated plans to design/create a structure.” The question, then, is whether it was objectively reasonable for Timberpeg to assert that VTW’s timberframe design, or the timberframe itself, constituted an infringing copy of Timberpeg’s architectural plans
or the architectural work embodied in those plans. The answer, quite plainly, is “no.”
Academic support does exist for the proposition that a completed building or structure can itself constitute an infringing copy of an architectural work. See, e.g., Louis Altman, Copyright on Architectural Works, 33 IDEA 1, 61 (1992) (“In contrast to the pre-1990 law, building designs covered by the Architectural Works Copyright Protection Act can be infringed not only by copying the design in the form of two-dimensional plans or drawings or a three-dimensional model, but also by the construction of a full-sized building which embodies the protected design . . .”) (footnotes omitted); Andrew S. Pollock, Comment, The Architectural Works Copyright Protection Act: An Analysis of Probable Ramifications and Arising Issues, 70 NEB. L. REV. 873, 881-87 (1991). Moreover, as Timberpeg correctly notes, Hunt characterizes the House Report on the AWCPA as making it “clear that an unconstructed work, embodied only in plans or drawings, can be infringed by a structure that embodies the copied design.” 192 F.3d at 880 (emphasis added). And, H.R. REP. No. 101-735, reprinted in 1990 U.S.C.C.A.N. 6935, uses the
term “infringing buildings” at several points. Id. at 6944 & 6953 n.50.
So, it cannot be said that Timberpeg’s legal theory of liability – that a structure can itself constitute an infringing copy of an architectural work – was, in the abstract, objectively unreasonable. But the issue here is more focused. First, VTW did not design or construct a building that looked like the one designed by Timberpeg. Indeed, VTW did not design or construct any building at all; it designed and constructed a discrete component of a building - a post-and-beam frame. Timberpeg did not design a post-and-beam frame; it simply designed floor plans and elevations according to the general specifications provided by Isbitski. And, the record is clear that a number of alternative frame types and designs would suffice to support the building Timberpeg designed.
When Timberpeg filed suit it knew that it had not developed a frame design for Isbitski (that is, it never created an architectural work related to a post-and-beam frame). Timberpeg knew as well that it had not produced any drawing or plan related
to a frame design. And Timberpeg knew that VTW designed and built only a timberframe. And Timberpeg necessarily understood that its building design could be supported by any number of frame types and designs. Accordingly, Timberpeg’s copyright infringement claim consisted, essentially, of an assertion that its architectural work (the overall house design), embodied without a frame design, was infringed by VTW’s own timberframe design, unembellished by other architectural details.
Timberpeg’s theory of infringement ignored the reality that its frameless architectural work could be supported by a variety of different frame designs and framing systems.2 It also ignored the fact that the frame VTW designed and built was capable of supporting a variety of different architectural designs - any number of which would be non-infringing with respect to Timberpeg’s house design. In other words, there was no necessary infringing correlation between Timberpeg’s architectural work (the house plans) and VTW’s frame design, just as there is no
2 That Timberpeg’s architectural work could be supported by several different frame designs and framing systems is borne out by the fact that Timberpeg’s preliminary plans for Isbitski’s house called for (but did not depict) a purlin and rafter framing system while its construction plans for the same house called for (but did not depict) a frame employing a bent system.
necessary correlation between VTW’s frame design and Timberpeg’s architectural work.
It was, therefore, objectively unreasonable for Timberpeg to sue VTW based upon a claim that VTW’s frame constituted an embodiment of Timberpeg’s house plans. That VTW’s frame could accommodate Timberpeg’s house design hardly made that frame an infringing copy of Timberpeg’s house plans. Timberpeg’s legal theory - that VTW’s frame infringed - was objectively unreasonable in the context of this case, and amounted to an attempt by Timberpeg to extend its copyright protection substantially further than legally permissible. See Matthews v. Freedman, 157 F.3d 25, 29 (1st Cir. 1998) (affirming district court’s determination of objective unreasonableness when plaintiff tried “to extend her copyright protection far beyond what [was] allowed by law”).
The remaining Fogerty factors also support an award of costs and fees. Regarding Timberpeg’s motivation, the assertion of an objectively unreasonable claim goes beyond any legitimate attempt to clarify or extend the scope of copyright law but, rather,
suggests “a desire to discourage and financially damage a competitor by forcing it into costly litigation.” Yankee Candle Co. v. Bridgewater Candle Co., 140 F. Supp. 2d 111, 116 (D. Mass. 2001) (citing NLFC, Inc. v. Devcom Mid-America, Inc., 916 F. Supp. 751, 759-60 (N.D. Ill. 1996)).
Timberpeg’s commitment to protecting its intellectual property through litigation, or the threat of litigation, is apparently strong, as it should be. But this case crosses the line between vigorous protection and unwarranted intimidation. An award of costs and fees will serve the important purpose of deterring Timberpeg and others from the kind of imaginative overreaching represented by the legal theory it attempted to force upon the unsuitable facts of this case.
VTW has demonstrated its entitlement to costs and attorneys’ fees under 17 U.S.C. § 505. Accordingly, its motion for costs and fees (document no. 100) is granted. All that remains is to determine the amount.
VTW initially requested an award of $118,631.933 and has since requested an additional $1,840, representing fees generated by its review of and reply to Timberpeg’s objection to its fee request. Timberpeg counters that the amount requested by VTW is unreasonable, and seeks several specific reductions, each of which is addressed below.
Under the fee-shifting provisions of the Copyright Act, as “[u]nder most federal fee-shifting statutes . . . the trial judge must determine ‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.’” Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “In implementing this lodestar approach, the judge calculates the time counsel spent on the case, subtracts duplicative, unproductive, or excessive hours, and then applies prevailing rates in the community (taking into account the qualifications, experience, and specialized competence of the attorneys involved).” Gay Officers, 247 F.3d at 295 (citing Lipsett v.
3 This figure includes $772.50 in billings from two previous attorneys, plus 553 hours of Attorney Whittington’s time, billed at $200 per hour, and 56 hours of Attorney Whittington’s paralegal’s time, billed at $85 per hour.
Blanco, 975 F.2d 934, 937 (1st Cir. 1992); United States v. Metro. Dist. Comm’n, 847 F.2d 12, 15-17 (1st Cir. 1988); Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950-51 (1st Cir. 1984)).
Timberpeg correctly points out that VTW has not offered affidavits or other evidence supporting the reasonableness of Attorney Whittington’s hourly rate of $200. But based upon the court’s knowledge of legal practice in New Hampshire, $200 per hour falls comfortably within the range of reasonable billing rates for practitioners of Attorney Whittington’s level of experience and ability.
Timberpeg argues that $53,837 should be deducted from VTW’s award, to prevent VTW from realizing a windfall. Timberpeg points to the fee arrangement between VTW and Whittington, and suggests that the actual fee charged will be less than that claimed in the fee petition. But unlike the fee agreement in Jewish Employment & Vocational Service, Inc. v. Pleasantville Educational Supply Corp., 601 F. Supp. 224 (E.D. Pa. 1983), under which the attorney charged half his usual fee but promised to
pursue full reimbursement and allow the client to pocket the difference, the fee agreement between VTW and Attorney Whittington explicitly precludes any such outcome. All fees collected by VTW will be paid to Whittington’s firm, at the full billing rate. That the client might incur a reduced obligation if full fees are not recovered is a benefit that does not extend to Timberpeg, nor should it. Accordingly, the requested reduction, based upon Jewish Employment, is denied.
Timberpeg requests an additional reduction of ten percent, based upon the alleged lack of detail in Attorney Whittington’s billing records. This is not a case like Grendel’s Den, where there was an absence of contemporaneous billing records. 749 F.2d at 951. Nor is it a case like Yankee Candle, in which the prevailing defendant’s request for fees was reduced by ten percent primarily because of “the rather substantial amount of time [the defendant’s] attorneys spent in conferences with each other.” 140 F. Supp. 2d at 125. Timberpeg has not identified any specific “excessive hours, duplication of services, [or] fruitless pursuits,” id. (citation omitted), and it is not entitled to a ten-percent reduction in fees.
Timberpeg also argues that VTW’s fee award should be reduced by $4,640 - the amount billed for VTW’s unsuccessful motion to dismiss. But that motion, while denied, was neither tangential nor frivolous. Rather, work on the motion to dismiss, which focused on the same issues raised in the subsequent motion for summary judgment, contributed to VTW’s success on that latter motion and was, therefore, neither fruitless nor unproductive.
Timberpeg also contends that Attorney Whittington spent excessive time on VTW’s motion for summary judgment and that VTW’s request for $18,000 in fees for that motion should be reduced by fifty percent. In Timberpeg’s words, “[t]o a significant extent, defense counsel billed for his education in copyright law for which Timberpeg should not be forced to pay.” Attorney Whittington’s billing records disclose that over the course of the entire case, the number of hours he and his paralegal devoted to legal research fell somewhere between 31 and
131. In those billing records, 31 hours are accounted for by entries listing only research activities, while another 100 hours are accounted for in listings that include both research and other activities. Assuming that half the time represented by
those mixed entries was devoted to research, VTW seeks reimbursement for approximately 80 hours of research time. That seems a reasonable amount of time to have devoted to legal research, over seventeen months, in a case whose complexity flowed, largely, from Timberpeg’s legal theory.
Timberpeg argues, as well, that VTW’s request for fees should be reduced by $5,405, the amount Attorney Whittington billed for representing Kim Hentschel at her deposition. While Hentschel was no longer a VTW employee at the time of her deposition, she was employed by VTW at the time Isbitski dealt with the company, and those dealings were the subject of the deposition. Attorney Whittington billed VTW, not Hentschel, for the cost of representing Hentschel at the deposition. But whether he was, strictly speaking, representing Hentschel, or attended the deposition on behalf of VTW, or both, the fees would have been substantially identical. The record suggests that Whittington’s representation was dual but the fees charged were not. VTW was properly charged for that time for services rendered to it.
Timberpeg also challenges: (1) an invoice dated December 29, 2004, in the amount of $2,250, which VTW subsequently identified as an expert witness fee; (2) another expert witness fee of $1,350, on an invoice dated April 12, 2005; and (3) a $229.50 billing for legal research and a memorandum related to VTW’s inadvertent disclosure of information to Timberpeg during discovery.
VTW may not recover expert witness fees. “[C]osts that may be assessed to reimburse a prevailing party [in a copyright infringement case] for its expert witness fees are limited to the $40 limit provided for in 28 U.S.C. § 1821(b).” Artisan Contractors Ass’n of Am., Inc. v. Frontier Ins. Co., 275 F.3d 1038, 1040 (11th Cir. 2001); see also Pinkham v. Camex, Inc., 84 F.3d 292, 295 (8th Cir. 1996) (“we conclude costs under 17 U.S.C. § 505 are limited to the costs expressly identified in 28 U.S.C. § 1920, and that expert witness fees in excess of the 28 U.S.C. § 1821(b) $40 limit are not recoverable”); Barrera v. Brooklyn Music, Ltd., 346 F. Supp. 2d 400, 406 (S.D.N.Y. 2004) (“Given that the authority provided by § 505 of the Copyright Act mirrors that of 28 U.S.C. § 1920 recovery [of expert witness fees in
excess of $40] is also barred under the Copyright Act.”); NLFC, 916 F. Supp. at 764 (denying expert witness fees in excess of $40 in copyright infringement case). Accordingly, VTW’s fee request must be reduced by $3,600, the amount of the expert witness fees.
Finally, regarding the $229.50 billing for research into remedies for VTW’s inadvertent disclosure of information to Timberpeg during discovery, it is perhaps more appropriate that VTW bear that cost. After all, the work was necessary only because VTW was careless. It is a small amount, but Timberpeg’s point is well taken. The fee request is reduced by $229.50.

Conclusion
For the reasons given, Attorney Whittington’s hourly rate, and that of his paralegal, are reasonable. The hours expended on VTW’s defense against Timberpeg’s claims are also reasonable, for the following reasons: (1) duplication of effort and excessive consultation were minimized by Attorney Whittington’s status as a sole practitioner; (2) the case involved several complicated discovery disputes; (3) the case was vigorously contested on both sides; and (4) the stakes were high for VTW due to the company’s
relatively small size and the potentially debilitating effect of an unfavorable outcome. Because the hourly rates and the number of hours expended on the defense of this case are both reasonable, the lodestar figure that results from multiplying the latter by the former is presumed reasonable. Accordingly, VTW is entitled to costs and attorneys’ fees in the amount of $116,642.43. That figure represents VTW’s original request, plus the cost of litigating the issue of fees ($1,840), minus the non­recoverable expert witness fees ($3,600), and the fee associated with the inadvertent disclosure ($229.50).
SO ORDERED.

November 8, 2005
cc: W. E. Whittington, IV, Esq. Daniel E. Will, Esq.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

__________________________________________)
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
 
MOTION FOR PARTIAL SUMMARY JUDGMENT
The plaintiffs, T-Peg, Inc. and Timberpeg East, Inc. (collectively “Timberpeg”), respectfully submit this memorandum of law in support of their motion for partial summary judgment.

 
PRELIMINARY STATEMENT
This is an action for copyright infringement arising out of a set of architectural plans created by Timberpeg for a prospective customer named Stanley J. Isbitski (“Isbitski”) and registered with the United States Copyright Office (the “Timberpeg plans”).  Timberpeg alleges that VTW and its owner, Douglas Friant, (collectively “VTW”) infringed the Timberpeg plans when it created shop drawings and later built a timberframe for Isbitski.  
Timberpeg’s copyright infringement claim was dismissed in February 2005 when this Court granted summary judgment in favor of VTW.  Timberpeg appealed, and the United States Court of Appeals for the First Circuit reversed and remanded this action for a jury trial on whether VTW copied the Timberpeg plans and whether the VTW timberframe and shop drawings are substantially similar to Timberpeg’s architectural plans.   
Timberpeg now moves for summary judgment on two issues the parties raised before this Court and on appeal that the First Circuit Court ultimately resolved in Timberpeg’s favor.  First, Timberpeg moves for summary judgment that its plans reflect an original architectural work that is entitled to protection under the Copyright Act.  Second, Timberpeg moves for summary judgment that VTW had access to the Timberpeg plans, thereby establishing the first element of proof through indirect evidence that VTW copied the Timberpeg plans.

STATEMENT OF UNDISPUTED FACTS
A. Parties
TIMBERPEG® is a federally registered trademark used by a family of companies to promote, design, manufacture, and sell TIMBERPEG® brand post and beam home packages.  See Affidavit of Richard Neroni ("Neroni Aff.") ¶ 2, attached as Exhibit A. T-Peg, Inc. ("T-Peg") owns the TIMBERPEG® trademark and licenses the mark to a group of related companies, all owned by T-Peg, which includes Timberpeg East, Inc. ("Timberpeg East").  See id. ¶¶ 2-3.  The related companies use the trade name, Timberpeg, to promote their common business.  See id. ¶
3.
Timberpeg East, a wholly-owned subsidiary of T-Peg, is responsible for sales of TIMBERPEG® product in the Northeast.  See id. ¶ 4.  Timberpeg Services, also a wholly-owned subsidiary of T-Peg, provides drafting and manufacturing services to Timberpeg East, as well as other related Timberpeg companies operating in other regions.  Timberpeg Services operates solely for the benefit of the Timberpeg companies and does not independently provide services to the public or any unrelated companies.  See id.
The common goal of T-Peg and Timberpeg East (and Timberpeg Services) is to promote and sell TIMBERPEG® brand product.  See id. ¶ 5.  Consequently, T-Peg, Timberpeg East, and Timberpeg Services have contractual agreements whereby copyright interests are transferred and drafting services are provided by Timberpeg Services and paid for by Timberpeg East.  See id. and Tabs 1 and 2.  T-Peg registers copyright interests, but Timberpeg East maintains co­ownership in the copyright arising from Timberpeg East projects.  See id.
VTW is a company located in Vermont, which specializes in timber framing.  See Deposition of Douglas Friant (“Friant Dep.”) at 18, attached as Exhibit B.  VTW has no architects on staff and does not design buildings.  See id. at 27, 32.  Instead, VTW utilizes architectural plans or sketches to fit frames to the houses those plans or sketches reflect.  See id. at 37.  VTW needs some significant information – footprint dimensions, wall height and roof pitch at a minimum – in order to design a frame.  See id. at 31-2.  If a customer comes to VTW without that information, VTW will generally refer that customer to an architect, because architectural elements will drive the location of the timberframe components.  See id. at 40.
VTW was founded by Douglas Friant and Dan Kelleher.  See Friant Dep. at 17.  Mr. Friant is the only person at VTW who does any drafting of timber frame drawings.  See id. at 22.  
B. What Is A Timberframe
Timberframing is a method of framing a building utilizing posts and beams, which generally remain visible inside of the building.  See Friant Dep. at 27-8.  The timberframe provides, in essence, the skeleton of a house to which are affixed external siding and roofing and interior walls, typically with the frame itself visible on the interior.  Timberframed buildings are unusual in that the timber frame itself – the structural component of the building – also defines the spaces within the building.  See Plaintiff’s Expert Disclosure (“Vincent Report”), attached as Exhibit C.  A timberframe, therefore, can define the size, shape and intended layout of the building.  See id.; see Friant Dep. at 33.
C. Architectural Plans And Shop Drawings
Architectural works – the design of a building – can be reflected in so-called architectural plans.  See, e.g., Timberpeg Plans, attached as Exhibit D.  Architectural plans typically consist of foundation drawings, first and second floor drawings, elevations, sections, roof plans, and, sometimes, perspectives, which show the overall scope of a building.  See Friant Dep. at 41.  Architectural plans reflect a building's size, shape, layout or floor plan and dimension.  See Vincent Report at Exhibit C.
In the context of a timberframed building, the design of any particular timberframe is reflected in so-called shop drawings.  See, e.g., VTW Shop Drawings, attached as Exhibit E.  Shop drawings reflect the components of the timberframe, meaning their location and their connections.  See Friant Dep. at 41.  It is typical to utilize architectural plans in the design process of a timberframe, see id. at 37, and architectural plans will often include designations for the locations of the frame components, see id. at 54.  The Timberpeg plans at issue in this litigation include such designations.  See Exhibit D at sheet 2.
D. Isbitski Residence Chronology
On November 1, 1999, an individual named Stanley J. Isbitski entered into an agreement with Timberpeg called “Deposit Agreement For Timberpeg Preliminary Plans And Drawings” (“Design Agreement”).  Design Agreement, attached as Exhibit F.  The Design Agreement provided that Timberpeg would prepare so-called preliminary plans, which would include the basement plan, floorplans, four elevations, and a cross section.  See Deposit Agreement ¶ 3.  The Design Agreement also provided that Timberpeg East, Inc. and/or its assigns, would own the copyright in the plans created and that whatever Mr. Isbitski provided by way of sketches or other materials would become the property of Timberpeg East, Inc.  See id. ¶ 4.    
On or about December 29, 1999, Timberpeg completed the first set of preliminary plans, and supplied those plans to Mr. Isbitski.  See Affidavit of Lynn Cole ("Cole Aff.") ¶ 2, attached as Exhibit G.  The plans reflected the design of a house, the main portion of which was to be timberframed, and a master bedroom wing of which was to be “stick built,” meaning more standard framing with two inch lumber, and not posts and beams.  See id.
In early December 2000, Mr. Isbitski first met with representatives of VTW.  See Sworn Statement of Kim Hentschel ("Hentschel Statement") ¶ 3, attached as Exhibit H.  Among other documents, Mr. Isbitski brought a set of Timberpeg architectural plans with him, and showed them to VTW representatives.  See id. ¶ 5.  According to VTW, Mr. Isbitski showed the plans to VTW by way of demonstrating what he did not want in a timberframe design.  According to VTW, Mr. Isbitski wanted a different frame style, known as a “bent” frame and different frame component joinery.  See Letter dated September 22, 2003 from John J. Welch, Esquire to Stephen Woods, Esquire (“Welch Letter”), attached as Exhibit I.
In early 2001, Mr. Isbitski met with Lynn Cole of Timberpeg East, and Lynn Cole prepared a new floorplan for Mr. Isbitski.  See Cole Aff. ¶ 3.  On or about April 20, 2001, Timberpeg completed a second set of architectural plans for Mr. Isbitski, which reflected the earlier meeting between Mr. Isbitski and Mr. Cole.  See id.  Timberpeg registered those plans with the Copyright Office, and that set of plans, and the architectural design they reflect, form the basis of this action.  See Exhibit D.  The copyright became effective on May 18, 2001.  See Certificate of Registration, VAu 510-781, attached as Exhibit J.  Timberpeg delivered the plans to Mr. Isbitski for his further review and comment.  See Cole Aff. ¶ 3. On the strength of these plans, Mr. Isbitski obtained a building permit from the Town of Salisbury.  See Cole Aff. ¶ 6.
Mr. Isbitski made no further substantive revisions to the overall design of the house.  See Cole Aff. ¶ 4.  He did, however, ask Timberpeg to frame his house design in a bent style.  See id. In September 2001, at Mr. Isbitski’s request, Timberpeg prepared construction drawings for Mr. Isbitski’s residence, which included a so-called bent timberframe system. See id. at Tab 1.  Except for providing for a bent frame, the construction plans duplicate the design embodied in the copyrighted plans.  Compare April 20 plans (Exhibit D) with September 5 plans (Exhibit G at Tab 1).  Timberpeg sent the construction plans to Mr. Isbitski on or about September 19, 2001. See Cole Aff. ¶ 4. 
On or about February 20, 2002, VTW revised shop drawings of a timberframe for the portion of Mr. Isbitski’s residence which the Timberpeg plans show to be timberframed.  See Friant Dep. at 117-118; VTW Shop Drawings at Exhibit E.  Mr. Friant, who drew the shop drawings, testified that he had prepared between 10 and 20 revisions prior to February 20, 2002, but that VTW did not apparently keep any of the prior revisions.  See Friant Dep. at 119.  The last revision to the shop drawings occurred in May 2002.  See id. at 121.  It is undisputed that VTW went on to cut and erect the timberframe for the Isbitski residence.
E. The Procedural History
The parties moved for summary judgment in advance of the trial originally scheduled for March 2005.  VTW offered two bases for summary judgment.  First, VTW argued that the Timberpeg plans could not be infringed as a matter of law because the plans comprised component architectural elements that lacked sufficient originality to be protected under the Copyright Act.  See VTW Motion for Summary Judgment dated 11/1/04.  Second, VTW argued that no substantial similarity could exist between the VTW timberframe and the Timberpeg plans because Timberpeg never designed a timberframe whereas VTW only designed a timberframe.  See VTW Motion for Summary Judgment dated 8/16/04.  
For its part, Timberpeg sought, among other things, judgment as a matter of law that VTW had access to the Timberpeg plans since they were in Isbitski’s possession at the time VTW created its timberframe for Isbitski.1  See Timberpeg Cross-Motion for Summary Judgment dated 9/17/04.    
This Court granted summary judgment to VTW, and in so doing, held that the two works lacked any probative similarity to suggest VTW copied the Timberpeg plans, based principally on the fact that Timberpeg did not design a timberframe while VTW drew and erected only a timberframe.  See Order dated 2/9/05 at 17.  This Court also held that, even had VTW copied the Timberpeg plans, no reasonable jury could conclude that any substantial similarity existed between the works.  Id. at 18. 
The United States Court of Appeals for the First Circuit reversed the summary judgment order and remanded the case to have a jury determine whether VTW copied the Timberpeg plans and whether a substantial similarity exists between the two works such that VTW could be deemed to have infringed Timberpeg’s copyright.  See T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97 (1st Cir. 2006).  In reaching its decision, the First Circuit ruled in Timberpeg’s favor on a series of arguments raised by the parties before this Court and on appeal. 
The First Circuit explicitly held, for example, that Timberpeg’s plans reflected an original work entitled to copyright protection.  The Court stated: Keeping in mind the definition of an “architectural work” as “including the overall form as well as the arrangement and composition of spaced and elements in the design,” we conclude that there are genuine issues of
1     As described below, a copyright plaintiff may prove copyright infringement by showing either that (1) the defendant copied the work, or (2) that the defendant had access to the work and produced a substantially similar work. Access, therefore, may be an element of proof of infringement.
material fact as to substantial similarity. . . At issue here is a particular combination of elements in Timberpeg’s architectural work:  a portion of a home featuring a timberframe with a backwards-L-shaped footprint, with a particular arrangement of posts, with certain dimensions and a bump-out along the western wall, featuring a central switchback staircase, with a lofted second floor of a certain floor area and in a certain location, with a certain roof pitch with certain dimensions, and certain wall heights.  
Id. at 113-14.  
The First Circuit also rejected VTW’s theory that it could not have infringed Timberpeg’s
plans because Timberpeg never designed a timberframe.  In this regard, the Court opined:
This emphasis wrongly assumes that the only issue here is whether a reasonable jury could conclude that VTW’s frame is substantially similar to Timberpeg’s frame design, and that since Timberpeg never designed a complete frame, there can be no infringement.  That is wrong.  The question here is whether a reasonable jury could conclude that VTW’s frame as drawn and built is substantially similar to Timberpeg’s architectural work (which includes “the overall form as well as the arrangement and composition of spaces and elements in the design”) as embodied in the second preliminary plans for the Isbitski house.  This does not necessarily turn on whether Timber created a complete frame design or not.  
Id. at 114.  
Finally, the First Circuit addressed Timberpeg’s proposition that VTW enjoyed access to
the Timberpeg plans because Isbitski possessed the plans during the time he worked with VTW
to design its timberframe.2  The First Circuit concluded that the Timberpeg plans had been in
Isbitski’s possession for nearly one year by the time he agreed to purchase the timberframe from
VTW on March 8, 2002. Id. at 106.  Based on this finding, the First Circuit held that VTW had
access to the Timberpeg plans because such access could be imputed where there is evidence that
a “third party [Isbitski] with whom both the plaintiff [Timberpeg] and the defendant [VTW] were
dealing had possession of the plaintiff’s work” and “the plaintiff’s and defendant’ dealings took
2 A fact this Court recognized as well in the first summary judgment order. See Order of 2/9/05 at 16.
place concurrently.” Id. at 111 (quoting 4 Nimmer & Nimmer, Nimmer on Copyright § 13.02[A]).      
The parties have participated in further mediation since the First Circuit’s decision, but to no avail.  A jury trial on Timberpeg’s copyright infringement claim is scheduled for October 2007.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).  The record evidence is taken in the light most favorable to the nonmoving party, indulging all reasonable inferences in his favor.  See Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 577 (1st Cir. 1999).  However, the Court must consider the record as a whole and may not make credibility determinations or weigh the evidence.  See Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2110 (2000).  The party seeking summary judgment must first demonstrate the absence of a genuine issue of material fact in the record.  See DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).  An issue of fact is genuine if there is sufficient evidence to permit a rational fact-finder, considering the evidence in the light most favorable to the nonmoving party, to find for either party.  See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

ARGUMENT
To prevail on its claim for copyright infringement, Timberpeg must prove that it owns an architectural work protected under the Copyright Act, that VTW copied the protected architectural work, and that VTW’s infringing work is substantially similar to Timberpeg’s protected work.  The First Circuit has held that the questions of whether the works share a probative and substantial similarity must be resolved by a jury.  Nevertheless, by this motion, Timberpeg seeks partial summary judgment that its plans are original and that VTW had access to the plans – questions that, should Timberpeg prevail, will narrow the issues for the jury’s consideration at trial.  
I.          TIMBERPEG’S PLANS EMBODY AN ORIGINAL ARCHITECTURAL WORK ENTITLED TO PROTECTION UNDER THE COPYRIGHT ACT
VTW argued before this Court and on appeal that Timberpeg’s architectural design is not sufficiently original to be entitled to copyright protection.  VTW based this argument upon an element by element deconstruction of Timberpeg’s architectural design into a series of features which, VTW contended, themselves are not copyrightable.  In essence, VTW contended that any individual features of an architectural design that are not original preclude an architectural design that utilizes those features from being original, and that those elements must be effectively stripped from any design prior to determining whether the design is original.  VTW’s argument is at odds with the Copyright Act and has now been flatly rejected by the First Circuit on appeal.
The Copyright Act protects original architectural works, and defines architectural work as:
the design of a building as embodied in any tangible medium of expression,
including a building, architectural plans, or drawings. The work includes the
overall form as well as the arrangement and composition of spaces and elements
in the design, but does not include individual standard features.   17 U.S.C. § 101.  Decisional law on point makes clear that “[t]he level of originality required for copyright protection is not especially elevated,” and that “[t]he underlying component parts of a creation are not subject to protection, but a creator’s independent selection and arrangement of component parts into an original design is copyrightable.”  Arthur Rutenberg Homes, Inc. v.
Maloney, 891 F. Supp. 1560, 1566 (M.D. Fla. 1995).  Courts, therefore, have consistently rejected VTW’s approach, which seeks to “filter out” standard features in an architectural design for purposes of determining whether the design is sufficiently original to be entitled to protection.  See, e.g., Arthur Rutenberg Homes, Inc. v. Maloney, 891 F. Supp. 1560 (M.D. Fla.) and Sturdza v. United Arab Emirates, 281 F.3d 1287 (D.C. Cir. 2002).  
The First Circuit, recognizing this established precedent, explicitly rejected VTW’s approach on appeal.  It acknowledged that Timberpeg “bases its claim here on a combination of elements, which taken together, are protectible under the definition of an architectural work in 17
U.S.C. § 101.”  T-Peg, Inc., 459 F.3d at 115.  The First Circuit further noted that the legislative history for the Architectural Works Copyright Protection Act (“AWCPA”) states that “the phrase ‘arrangement and composition of spaces and elements’ recognizes that  . . . creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectible elements into an original, protectible whole.” Id. at 116.  It is for this reason the First Circuit concluded “there is no separability test for an architectural work.” Id. at 110.  In other words, the protectible elements of an architectural work are not to be separated from the utilitarian aspects when examining the work’s copyright protection.  See id.
By seeking to “filter out” what VTW contended were standard features of Timberpeg’s architectural design, VTW applied the separability test that has been squarely rejected in the decisional law and the First Circuit in this action.  Even if one assumes that each of the “standard features” VTW identified in Timberpeg’s design is, in fact, a standard, non-copyrightable feature, it is the arrangement and composition of those features that make the Timberpeg design copyrightable.  Such arrangement and composition was the product of a lengthy creative process undertaken by Timberpeg to design and then redesign the plans to express Isbitski’s vision for his home.3  Timberpeg claims copyright in the arrangement of all of those features which create an original home design with its own look and feel – an architectural work the First Circuit recognized is original and entitled to copyright protection.  Accordingly, given the dictates of the AWCPA and the First Circuit’s decision on appeal, Timberpeg is entitled to summary judgment that the architectural work reflected in its registered plans is entitled to protection under the Copyright Act.   

II. The Record Facts Establish VTW Had Access To Timberpeg’s Plans
To prevail on its infringement claim, Timberpeg must prove, among other things, that VTW copied its plans.  Because direct evidence of copying is frequently impossible to obtain, a plaintiff may prove copying indirectly through proof that the defendant (1) had access to the copyrighted work, and (2) that the defendant’s work is substantially similar to the plaintiff’s copyrighted work.  See 4 Nimmer on Copyright §13.02[B].  The element of access in this context is defined broadly and means merely the opportunity to have reviewed the protected material.  See Jones v. Nino Homes, 858 F.2d 274, 277 (6th Cir. 1988); Mayotte and Assoc. v. MGC Bldg. Co., 885 F. Supp. 148, 152 (E.D. Mich. 1994); Arthur Rutenberg Corp. v. Parrino, 664 F. Supp. 479, 481 (M.D. Fla. 1987).  An opportunity to review the plans may be inferred, even on summary judgment, when the plaintiff and defendant were both dealing with a mutual third party over the same period of time.  See 4 Nimmer on Copyright § 13.02[A] at 13-17; Parrino, 664 F. Supp. at 481; Rottlund Co. v. Pinnacle, 2004 WL 1879983 at *21 (D. Minn. 2004); Arthur Rutenberg v. Maloney, 891 F. Supp. 1560, 1567 (M.D. Fla. 1995).  A conclusive
3 If nothing else, that the work is the product of a creative process undertaken by Timberpeg alone establishes
originality, thereby entitling the work to protection under the Copyright Act. See Cole Aff. ¶ 3; Richmond Homes
Management, Inc. v. Raintree, Inc., 862 F.Supp. 1517, 1523 (W.D.Va. 1994) ("Architectural structures and plans
are subject to copyright protection under 17 U.S.C. §§ 102(a)(5) and (8) where the author has independently
created the works and the works reflect creativity, regardless of how simple the design.").
finding of access does not require proof of actual viewing or utilization of knowledge gained from viewing.  See Rottlund, 2004 WL 1879983 at *21. 
The chronology in this action proves as a matter of law that VTW had an opportunity to review Timberpeg's plans, even if VTW denies such a review, because the record reveals no dispute of fact that VTW and Timberpeg both dealt with Mr. Isbitski over the same period of time when Mr. Isbitski had Timperpeg’s copyrighted plans.  Mr. Isbitski went to Timberpeg in 1999, after which he received the first set of architectural plans.  He shared those plans with VTW in late 2000.  Mr. Isbitski returned to Timberpeg and obtained revised plans in April 2001, which Timberpeg copyrighted, and construction plans in September 2001 that reflected the so-called bent style timberframe.  Mr. Isbitski then filed the copyrighted plans with the Salisbury building department and returned to VTW, who, between February and mid-May 2002, prepared shop drawings and, thereafter, erected a timberframe for Mr. Isbitski.  Not only were Timberpeg and VTW both dealing with Mr. Isbitski simultaneously, but VTW prepared its plans after Timberpeg provided Isbitski with the copyrighted plans and after Isbitski made them publicly available by filing them with the Salisbury building department.  This was the same point in time during which Isbitski was allegedly instructing Mr. Friant on the location of posts to within an eighth of an inch.  See Friant Dep. at 109.  On those undisputed facts, VTW, as a matter of law, had an opportunity to review Timberpeg's plans.  See Parrino, 664 F. Supp. at 481; Maloney, 891
F. Supp. at 1567.  Notably, by establishing a reasonable opportunity to view, Timberpeg establishes access, and not just an inference of access.  See Rottlund, 2004 WL 1879983 at *21 (explaining same in context of summary judgment).  
That VTW had access to the Timberpeg plans is precisely the determination made by the First Circuit when it reviewed the same facts on appeal.  See T-Peg, Inc., 459 F.3d at 111. 
Accordingly, Timberpeg is entitled to summary judgment that VTW had access to the Timberpeg
plans, thereby establishing the first element for proving by indirect evidence that VTW copied
the Timberpeg plans, leaving for trial only the issues of direct copying by VTW, whether
VTW’s frame is substantially similar to Timberpeg’s protected work, and damages.  

CONCLUSION
For the foregoing reasons, Timberpeg respectfully requests summary judgment in its favor on the issue of the originality of its architectural work and VTW’s access to the work.    

CERTIFICATE OF SERVICE
I hereby certify that on this day, June 3, 2007, a copy of the foregoing was transmitted to
W.E. Whittington, Esquire in accordance with the Court’s Administrative Procedures of Electronic Filing.  
/s/ Jonathan M. Shirley Jonathan M. Shirley
J:\wdox\docs\CLIENTS\13713\67941\M1025713.DOC

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
T-PEG, INC and ) TIMBERPEG EAST, INC., ) Plaintiffs, ) )
vs.     ) No. 03-CV-462-M
) VERMONT TIMBER WORKS, INC. and ) DOUGLAS FRIANT, )
Defendants. )
DEFENDANT’S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT BASED ON PLAINTIFFS’ LACK OF STANDING
Defendants, Vermont Timber Works, Inc. (“VTW”) and Douglas Friant (“Friant”) have
moved the Court under FRCP 56 for summary judgment on the grounds that, as a matter of law,
(1) plaintiffs did not create, and are not the authors of, the architectural work which is the subject of this action, (2) plaintiffs therefore are not owners of the copyright, and (3) plaintiffs lack standing to bring this action.
This memorandum, including the incorporated Statement of Undisputed Facts, Exhibits 1- 8, and authenticating affidavit, are submitted in support.
Preliminary Statement
Of eight original counts, the sole remaining claims are Counts II and VIII, claims for copyright infringement, based on alleged infringement of (1) a claimed “architectural work” as defined in Section 101 of the Copyright Act, known as the Isbitski project and (2) “plans”1 for that project. 
1 A separate Motion For Judgment On The Pleadings is being filed as to any claims based on the plans, since plaintiffs did not make a copyright registration as to plans.
Plaintiffs allege, as they must, that they “created an original set of architectural plans” (Am. Cplt. ¶15) and, further, that they “registered the Plans with the United States Copyright Office as an architectural work” (Am. Cplt. ¶17). These allegations have some critical vagueness, however, in that they utilize the definition “Timberpeg” to refer to both plaintiffs, T-Peg, Inc. and Timberpeg East, Inc., “collectively and individually.” Am. Cplt. ¶2. As will be shown below, the identity of the precise owner of the copyrighted work matters, and each plaintiff’s claim must stand or fall on its own.
As will be demonstrated below, as a matter of law – 
(1) The work was created – if at all – by Timberpeg Design Services, Inc., and not by either plaintiff.
(2) Plaintiffs cannot demonstrate that the work is a “work for hire” as asserted on the application, based on the clear definition of that term in Section 102(b).
(3) Even if T-Peg were the valid owner, TEI lacks standing because it cannot be an “exclusive licensee” as defined by Section 501(b). 

STATEMENT OF UNDISPUTED FACTS There is no genuine dispute as to the following material facts:

1. Plaintiffs’ alleged copyright ownership is based on T-Peg’s application and Certificate of Registration VAu 51-781, attached to the Complaint, and reproduced as Ex. 1. Am. Cplt. ¶17. That application/registration provides, in relevant part:
2. Timberpeg East, Inc. is not listed as an author or owner on the application/ Certificate of Registration, VAu 51-781. Ex. 1.
3. Timberpeg Services, Inc. is a separate entity which is not a plaintiff in the case. Moreover, plaintiffs have objected to providing information about Timberpeg Services, Inc. because it is not a party. Ex. 2, Answers to Interrog. No. 1 and RTP No. 7.  Moreover, according to records of the New Hampshire Secretary of State (see  www.sos.nh.gov/corporate) which this Court should judicially notice, Timberpeg Services, Inc. was organized on May 24, 2000. 
4. There is no evidence that either plaintiff did any design work at all on the Isbitski project, either in conjunction with his earlier design which is not at issue here or in conjunction with the “architectural work” identified in VAu 51-781, and plaintiffs clearly admit there was none:

(a) Plaintiffs’ “Answer To Interrogatories” (Ex. 2) and, thereafter, their
“Supplemental Answers To Interrogatories” entered after defendant demanded a precise response
by plaintiff (Ex. 4), admit the following:
No. 10. Identify the total number of design hours (a) T-Peg and (b) TEI spent on the Isbitski project, and itemize that number by task performed.
Answer: Timberpeg spent approximately 108 hours of drafting time . . . . (Ex. 2)
[Based on draft motion to compel,] Timberpeg will supplement to break down the hours between T-Peg and TEI. (Ex. 3)
Supplemental Answer: T-Peg, Inc. did not directly perform any design time on the Isbitski project. Timberpeg East, Inc. does not keep a record of design time spent by Timberpeg East employees. However, Timberpeg Services, Inc., which operates as the design department for Timberpeg East and T-Peg, Inc. on a work-for-hire basis spent approximately 108 hours of drafting time . . . . (Ex. 4)
(b) The five sheets submitted to the Copyright Office for Registration VAu 51-781 all reflect that they were drawn by Joe Downey. (Ex. 5)  
(c) That the design work was performed by Downey, and that Downey was an employee of Timberpeg Services, Inc., not of either plaintiff, is also conceded by plaintiffs’ witness, Vincent. (Ex. 6). Indeed, Vincent stated that he himself is an employee of Timberpeg Services, Inc., (at 7), that he has no authority to take actions on behalf of T-Peg or TEI (at 10), that Timberpeg Services, Inc. does all the design work for TEI (at 6), that Timberpeg Services has 13 people in the design department (at 14), that Joe Downey worked for Vincent at Timberpeg Services, Inc. (at 19), and that “Downey drafted the plans here” and was “an employee of Timberpeg Services, not Timberpeg East or T-Peg” (at 31-32).

5. While plaintiffs’ supplemental answer to Interrogatory 10 argues, self-servingly, that Timberpeg Services, Inc. “operates [for plaintiffs] on a work-for-hire basis” (Ex. 4), it is undisputed that there is no agreement so providing and, as shown below, plaintiffs’ assertion is contrary to law.
ARGUMENT Standard Summary judgment is appropriate when the record reveals “no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” FRCP 56(c).
The nonmoving party “may not rest upon mere allegation or denials of [the movant’s] pleading, but must set forth specific facts showing that there is a genuine issue” of material fact as to each issue upon which he or she would bear the ultimate burden of proof at trial. Id. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256 (1986)). In this context, “a fact is ‘ material’ if it potentially affects the outcome of the suit and a dispute over it is ‘genuine’ if the parties’ positions on the issue are supported by conflicting evidence.” Intern’l Ass’n of
Machinists and Aerospace Workers v. Winship Green Nursing Center , 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).  As shown below, based on the undisputed material facts, VTW is entitled to judgment as a matter of law.
I. STANDING REQUIRES OWNERSHIP PLUS REGISTRATION
A. Governing Principles
The Copyright Act is clear in limiting standing (1) to “legal or beneficial owners,” (2) of exclusive rights under a copyright, (3) where the copyright has been registered prior to commencement of the action.2
B. The Evidentiary Function Of Registration: Easily Rebuttable Presumption
Section 410(c) of the Copyright Act provides that the certificate of registration
Shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.
2 Section 501 states:
The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411 [registration], to institute an action for any infringement of that particular right committed while he or she is the owner of it. [Emphasis added]
Section 411 states:
[N]o action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with this title. . . . .
  Since there is a three-year statute of limitations, Section 507(b), it is now too late for new plaintiffs, such as, hypothetically, Timberpeg Services, Inc., to register and commence suit for the architectural work at issue here.
However, as pointed out by Nimmer, this presumption governs the sequencing of proof, but is substantively not a strong presumption to overcome and, in fact, if defendant comes forward with any evidence to the contrary, the burden of proof shifts back to the plaintiff. That is because – unlike in the patent context – the Copyright Office does not examine and pass on the application as submitted, but simply files it. As stated by Nimmer,
[U]pon introduction of a properly registered certificate the burden shifts to defendant . . . . If, however, defendant offers proof . . . , the burden then shifts to plaintiff to overcome that evidence.
Nimmer On Copyright §12.11[B][1] at 12-202 to 12-203. 
II. T-PEG: PRESUMPTION OF AUTHORSHIP  OVERCOME BY UNDISPUTED FACTS In the case of plaintiff T-Peg, Inc., there is a certificate of registration (Ex. 1), which creates an initial presumption – but nothing more – of the validity of the copyright and the facts stated in the certificate. Several of the facts stated therein, and the resulting presumed validity based on those
facts, are proven false by evidence which T-Peg concedes, however, and therefore entitle defendants to judgment as a matter of law.
A. Not Designed/Created By T-Peg, Inc.
The evidence could not be clearer – despite T-Peg’s attempts not to disclose it – that T-Peg has no designers, did not put any time or services into creating the architectural work at issue here, and was not the “author.”
After repeated insistence by defendants on a direct response, and the submission of a draft motion to compel, plaintiffs finally supplemented Interrogatory 10 by conceding that “T-Peg, Inc. did not directly3 perform any design time on the Isbitski project.” (Ex. 4)
B. Not A “Work Made For Hire”
T-Peg checked the “work made for hire” box on the application (Ex. 1), and so is entitled to an initial presumption that it was a “work made for hire.” T-Peg even attempts to argue this point in its supplemental interrogatory response (which is not part of the application and therefore not entitled to any presumption) by reciting that Timberpeg Services, Inc. “operates as the design department for Timberpeg East and T-Peg, Inc. on a work-for-hire basis.”  
There are, however, clear statutory guidelines for “works made for hire,” and they clearly demonstrate that this relationship was not a “work made for hire”:  Section 101 defines “work made for hire” as
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use

[a] as a contribution to a collective work,
[b] as a part of a motion picture or other audiovisual work, 
[c] as a translation,
[d] as a supplementary work, 
[e] as a compilation,
[f] as an instructional text,
[g] as a test, 
[h] as answer material for a test, or 
[i] as an atlas,
if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
3 The term “directly” is apparently a deliberate waffle, which in the context of the response can only refer to the author-for-hire concept, discussed in the next heading below, and clearly not applicable.
Emphasis added. See also, Nimmer On Copyright §5.03[B], and the U.S. Copyright Office’s instructions for Application Form VA (Ex. 7). 
Subsection 101(1) clearly is not met. The work was not prepared by any employee of T-Peg, period, let alone “within the scope of his or her employment.” T-Peg admits that. Moreover, another company cannot be an “employee,” since courts look to traditional indicia of employment, including employment agreements, manner of compensation, tax withholding, right to control details of the work, whether the employee uses his own or the employers’ tools, right to control work hours, and the like. Nimmer at §5.03[B][1]
Subsection 101(2) clearly is not met, for at least three reasons. First, there is no evidence that this work, the architectural work embodied in the 4/20/01 drawings, was “specially ordered” by T-Peg. Indeed, there appears to have been no communication at all between T-Peg and Timberpeg Services about the project. Second, it was not ordered or commissioned as one of the nine items listed in [a] through [i] of the definition above. And third, there is no signed, written agreement expressly agreeing that the work is a “work made for hire.”
There is no dispute about these facts, and they conclusively rebut the minimal initial presumption of the certificate that T-Peg is the owner and author. 
III. TIMBERPEG EAST: NO CERTIFICATE RAISING PRESUMPTION OF AUTHORSHIP; AND IN ANY EVENT NO AUTHORSHIP BASED ON UNDISPUTED FACTS
Unlike T-Peg, plaintiff TEI is not listed on the application/certificate at all, so not even
the initial presumption of authorship arises. 
But even if it were listed, the overwhelming, uncontradicted evidence is that TEI did not author it. The supplemental interrogatory response (Ex. 4, No. 10) indicates that exactly 108 aggregate hours of design were put in, and all 108 were put in by Timberpeg Services, Inc. That leaves nothing for TEI, of course.
In addition, that response indicates that TEI “does not keep a record” of design time and this response, together with TEI’s failure to identify any design services in response to the direct interrogatory as well as document requests are binding responses precluding it from taking a contrary position at this late juncture.
IV. TIMBERPEG EAST: NO STATUS AS BENEFICIAL OWNER A final point needs to be made with respect to TEI. Unlike T-Peg, TEI is not listed on the application/certificate at all, so not even the initial presumption of authorship arises.
But in response to defendants’ prior summary judgment motion on the ground that TEI owns no copyright interest (which was never determined and is still pending4), TEI argued (Document 24 at 22-24)  that it could piggyback onto T-Peg’s registration as an assignee based on an undated, unsigned inter-company non-exclusive “Contract” between TEI and T-Peg.5 That
4 This heading is a restatement of the ground for summary judgment set forth in defendants’ First Motion For Summary Judgment, Document 23, at pp. 17-18. The argument was fully briefed in 2004 (Documents 23, 24 & 28), was never determined, and was revived in this Court in its post-remand order dated March 9, 2007. After discussions with the docket clerk, defendants believed it would be more convenient to re-plead the argument here and are doing so.
5 Plaintiffs failed to produce this document in the first rounds of discovery, but claim they found it subsequently in an unexecuted version.
document is attached as Exhibit 8 here,6 and it is insufficient to give TEI standing for the following reasons:
First, it is black-letter law that a non-exclusive licensee lacks standing to sue, so thankfully there is no need to litigate whether the document is genuine. This document states right on its face that the assigned right is “non-exclusive.”
In their prior opposition (Document 24 at 23) plaintiffs tried to avoid this reality by paraphrasing Section 501(b) of the Copyright Act to omit the critical qualifier, “exclusive.” The statute states:
The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirement of section 411 [i.e., registration with the Copyright Office], to institute an action for any infringement . . . .
17 U.S.C. §501(b) (emphasis added). See also, Nimmer On Copyright §12.02[B] (“only parties with ownership rights in a copyright have standing to bring claims for its infringement[;] nonexclusive licensee has no . . . standing to sue. . . . It is only the copyright owner, or the owner of exclusive rights under the copyright, as of the time the acts of infringement occur, who has standing to bring an action for infringement of such rights.”).
Courts have universally applied Section 501(b) to deny standing to mere non-exclusive licensees.  E.g., Motta v. Samuel Weiser, Inc., 768 F. 2d 481, 483-84 (1st Cir. 1985) (no standing unless plaintiff owns exclusive rights); Eden Toys, Inc. v. Florelee Undergarment Co., 697 F. 2d
6 The relevant language is:
T-Peg, Inc. conveys and assigns to Timberpeg East the non-exclusive right to use T-Peg, Inc.’s copyrighted/copyrighted material to promote the marketing and sale of the TIMBERPEG brand product line.
Ex. 8 (emphasis added).
27 (2d Cir. 1982) (same, citing Nimmer); Latin American Music Co., Inc. v. Archdiocese of San Juan, 194 F. Supp. 30, 49 (D. P. R. 2001) (“LAMCO/ACEMLA has a non-exclusive license.  As such, it does not have standing to bring a copyright infringement action.”); R. Ready Prods., Inc.
v. Cantrell, 85 F.Supp.2d 672, 684 n. 11 (S.D.Tex.2000) ("holders of a non-exclusive license lack standing to sue, because they have no ownership interest in the copyright”); Swarovski America Limited v. Silver Deer Limited, 537 F.Supp. 1201, 1205 (D. Colo. 1982) (“the licensor of non-exclusive rights retains standing to sue while the non-exclusive licensee has none”). See generally 3 Nimmer on Copyright at s 12.02
Second, “a transfer of copyright ownership . . . is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed . . . .” Section 204(a). Here, there is no such signature, and there is really no proof that the document is anything more than a draft.
Even if T-Peg were the true author – which it is conclusively not – a non-exclusive, un-signed license from it would be insufficient to transfer exclusive ownership and standing to sue to TEI. As a matter of law, VTW is entitled to summary judgment as against Timberpeg East.7
CONCLUSION Defendants are entitled to summary judgment because, based on the admissions of plaintiffs (1) T-Peg was not the author of the architectural work at issue here, thus overcoming
7 Timberpeg East also suggested (Document 24 at 23), without analysis, that it might be “viewed as an equitable or beneficial owner” by virtual of the (alleged) non-exclusive license. As explained by Nimmer, the statute is not referring to some loosy-goosey notion of “beneficial ownership,” but the “reference is intended to the general law of trusts.” There is no evidence or even suggestion in this case that T-Peg, the owner identified in the Copyright Office, established a formal trust for the benefit of Timberpeg East. No trust document has been produced. 
its listing itself on the registration application; and (2) TEI was neither listed on the application
nor the assignee of exclusive rights by the true author/owner.
Date: June 26, 2007
    VERMONT TIMBER WORKS, INC. and DOUGLAS FRIANT, Defendants,
/s/ W. E. Whittington
      W.E. Whittington
W. E. Whittington (Bar No. 6916) Whittington Law Associates, PLLC 35 South Main Street Hanover, NH 03755
(603) 643-2755 ned@whittington-law.com
Exhibits:
Ex. 1 – Application and Certificate of Registration 05/18/01 Ex. 2 – Answer to Interrogatories, Nos. 1 and RTP No. 7 05/12/04 Ex. 3 – Memo of “meet and confer” regarding Interrogatory 10 06/19/04 Ex. 4 – Supplemental Answers To Interrogatories 07/13/04 Ex. 5 – Drawings Attached to Copyright Application 04/20/01 Ex. 6 – Jon Vincent Deposition 03/31/04 Ex. 7 – U.S. Copyright Office Instructions for Form VA rev. June 1999 Ex. 8 – “Contract” between TEI and T-Peg unsigned, draft, no dates
CERTIFICATE OF SERVICE
I hereby certify that on June 26, 2007, I served the foregoing pleading on the following counsel of record, by causing it to be filed electronically via the CM/ECF filing system or mailed by first-class United States Mail, postage pre-paid, or in such other manner as may be indicated: 
Daniel E. Will, Esq. Devine, Millimet & Branch, P.A. 111 Amherst Street Manchester, NH 03105 dwill@deviinemillimet.com
/s/ W. E. Whittington
      W.E. Whittington

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