434, 93 L. Ed. 2d 383 (1986), the Seventh Circuit ruled that a hiring party could claim authorship of work produced by an independent contractor if the hiring party exercised a sufficient degree of control or supervision over the independent contractor's creation of the work. Id. at 894. Therefore, as this court previously held, the fact that the Supreme Court's interpretation of the law later undercut Harris' position, does not convert Harris' conduct, which was supported by the law as it existed at the time, into fraud.
Defendant also argues that because plaintiff included abbreviated and incomplete first and second floor plans and a sketch of the front exterior of the English Manor house in a Baird & Warner promotional sales brochure which was not copyrighted, the copyrighted blueprints upon which the brochure was based are no longer protected. The court, however, disagrees and finds that the entry of the sales brochure into the public domain does not affect the copyright protection of the underlying drawings.
The sales brochure is considered to be a derivative work, that is, a work based upon one or more preexisting works. 17 U.S.C. § 101. The law is clear that the publication of a derivative work does not affect the validity of a copyright in the pre-existing work on which the derivative work is based, despite the incorporation of the underlying work into the derivative work. Stewart v. Abend, 495 U.S. 207, 235, 110 S. Ct. 1750, 1767, 109 L. Ed. 2d 184 (1990) ("Neither the scope of the copyright. . .nor the duration of the copyright in the original work is undermined by publication of the derivative work."). Copying of material in the derivative work, which is also contained in the underlying work, constitutes infringement of the copyright in the underlying work. Id. See also, Russell v. Price, 612 F.2d 1123, 1128 (9th Cir. 1979), cert. denied, 446 U.S. 952 (1980) ("The established doctrine prevents unauthorized copying or other infringing use of the underlying work or any part of that work contained in the derivative product so long as the underlying work itself remains copyrighted."). "Thus, although the derivative work may enter the public domain, the matter contained therein which derives from a work still covered by statutory copyright is not dedicated to the public." Id. The court therefore concludes that as a matter of law defendant has failed to demonstrate that plaintiff's copyright for the English Manor architectural drawings is invalid.
Access exists when the defendant had the opportunity to view the protected material. Wildlife Express, 18 F.3d at 508 n.5 (citations omitted). In this case, defendant Hoffmeyer does not dispute that he used the Baird & Warner sales brochure, which contained an abridged version of the copyrighted architectural drawings, as a basis for his drawings. Therefore, the court finds that defendant had access to the copyrighted material.
C. Substantial Similarity
The test of substantial similarity involves two inquiries: "copying of the plaintiff's work and improper appropriation of the work." Id. "It has long been settled that a plaintiff cannot succeed in his proof if (1) the similarities between the works are not sufficient to prove copying, or (2) it is established that one work was arrived at independently without copying." Wildlife Express, 18 F.3d at 508 (citing Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 103 (2d Cir. 1951)).
In the Seventh Circuit, "the determination whether there is substantial similarity is made by the 'ordinary observer' test: 'whether the accused work is so similar to the plaintiff's work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protectible expression by taking material of substance and value.'" Wildlife Express, 18 F.3d at 509 (quoting Atari, 672 F.2d at 614)). "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.'" Wildlife Express, 18 F.3d at 509 (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)). "It has been said that this test does not involve 'analytic dissection and expert testimony,' Arnstein, 154 F.2d 464, 468 (2d Cir. 1946), but depends on whether the accused work has captured the 'total concept and feel' of the copyrighted work, Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970)." Atari, 672 F.2d at 614.
"Although numerous differences influence the impressions of ordinary observer, 'slight differences between a protected work and an accused work will not preclude a finding of infringement' where the works are substantially similar in other respects." Atari, 672 F.2d at 618 (quoting Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 913 (2d Cir. 1980)). "Exact reproduction or near identity is not necessary to establish infringement." Atari, 672 F.2d at 618. See also, Wildlife Express, 18 F.3d at 511 ("The Act does not require identical copying, only substantial similarity."). "The sine qua non of the ordinary observer test. is the overall similarities rather than the minute differences between the two works." Atari, 672 F.2d at 618 (citations omitted). "When analyzing two works to determine whether they are substantially similar, courts should be careful not to lose sight of the forest for the trees." Id. In this circuit, when reviewing the materials at issue for substantial similarity, the court permits a "side-by-side" comparison and an "ocular comparison" of the works being analyzed. Wildlife Express, 18 F.3d at 506-07 n.1 (citations omitted).
The court notes that summary judgment is not favored on the question of substantial similarity in copyright cases. See e.g., Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 n.3 (9th Cir. 1994). Summary judgment is proper, however, "if reasonable minds could not differ as to the presence or absence of substantial similarity of expression." See v. Durang, 711 F.2d 141, 142 (9th Cir. 1983). See also Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th Cir. 1990) ("Where reasonable minds could differ on the issue of substantial similarity. . .summary judgment is improper."); Pivot Point Int'l v. Charlene Prods., Inc., No. 90 C 6933, 1994 U.S. Dist. LEXIS 8993 at *13 (N.D. Ill. June 29, 1994) (summary judgment granted in favor of plaintiff after finding that the items were substantially similar such that no reasonable ordinary observer could find to the contrary).
In this case, although defendant Hoffmeyer points to numerous "differences" between the two architectural drawings, after careful comparison, the court finds that any reasonable ordinary observer must conclude that the architectural drawings are substantially similar.
Overlaying each transparency sheet of plaintiff's copyrighted drawings upon the corresponding sheet of the accused drawings reveals the following material substantial similarities:
1. nearly identical general layout and approximate dimensions of all rooms;