Selle, 741 F.2d at 901 (7th Cir. 1984).
48. When the plaintiff makes a showing of access and
substantial similarity, a presumption of copying is raised. The
Court finds that Cody/Braun did not copy LZT's drawings; it
independently created its drawings and the similarities derived
from a common source. Proof of independent creation was derived
from the evidence presented by Cody/Braun. First, Schultz
provided Cody/Braun with his design drawings (DX 105), Welsch's
structural drawings, a set of Alden Orland Park plans (DX 104),
and a set of civil engineering drawings. LZT was provided with
these same drawings which contained standards Alden expected LZT
to use. Second, Welsch's structural drawings preset the
foundation locations, the columns, window openings, elevator
shafts, and stairwells for both architects. Third, Schultz was
greatly involved with both sets of architects to see to it that
features used in prior Alden projects were incorporated in the
North Shore project. Fourth, Braun's explanation of how the plans
were prepared was credible and was supported by time records.
Finally, Cody/Braun lost money on this project because of the
extensive hours and manpower that went into creating construction
drawings for Alden. If Cody/Braun was copying LZT's drawings,
surely it would have made a profit.
E. Attorney's Fees
49. The Copyright Act provides that "the court may also award a
reasonable attorney's fee to the prevailing party as part of the
costs." 17 U.S.C. § 505. In this case, Cody/Braun prevailed
on LZT's complaint and LZT prevailed on Cody/Braun's
50. Prevailing plaintiffs and prevailing defendants should be
treated alike under § 505, but attorney's fees are to be
awarded to prevailing parties only as a matter of the Court's
discretion. Fogerty v. Fantasy, Inc. 510 U.S. 517, 534, 114 S.Ct.
1023, 1033 (1994); Budget Cinema, Inc. v. Watertower Assoc.,
81 F.3d 729, 730 (7th Cir. 1996).
51. The Supreme Court in Fogerty stated that there was no exact
test to be applied, but rather, courts should exercise equitable
discretion. Fogerty, 510 U.S. at 534, 114 S.Ct. at 1033.
52. There are several nonexelusive factors to guide the courts
in determining whether to award attorney's fees to the prevailing
party: frivolousness, motivation, objective unreasonableness
(both factual and legal components), and the need in particular
circumstances to advance considerations of compensation and
deterrence. Id. at n. 19.
53. There was bad blood between Alden and LZT. Cody/Braun was
caught in the middle. But, the bad blood between the parties was
not enough to show frivolousness in LZT bringing the suit.
Filliung spent time looking at Cody/Braun's drawings, he
genuinely thought they were copied from his plans. LZT brought
this suit based on that belief. Filliung was motivated by a desire
to protect LZT's plans and to prevent Alden and Cody/Braun from
obtaining an unfair advantage by using LZT's plans. Filliung was
wrong in his assessment. In the exercise of discretion, the Court
concludes that attorney's fees should not be awarded against LZT.
54. The best defense is a good offense. In this case,
Cody/Braun defended itself in part by raising affirmative
defenses and a counterclaim challenging LZT's copyright. LZT's
copyright application leaves something to be desired, but it does
not rise to the level of voiding the copyright certificate. The
counterclaim was not frivolous and was motivated by sound
litigation strategy which ultimately was not successful. In the
exercise of discretion, the Court concludes that attorney's fees
should not be awarded against Cody/Braun.
Close only counts in horseshoes, not copyright law. The
Cody/Braun drawings may be "close" to LZT's but are not a copy
because they were each created independently. The Court concludes
that LZT has a valid copyright in its drawings, but Cody/Braun
did not infringe that copyright. Cody/Braun created its own
construction drawings of the North Shore project for Alden.
Cody/Braun's drawings may be similar when viewed from afar, but
when examined up close, the differences are clearly evident and
The Court directs the Clerk to enter judgment in favor of
Defendant-Counterplaintiff Cody/Braun & Associates, Inc., and
against Plaintiff-Counterdefendant LZT/Filliung Partnership, LLP,
on Plaintiff's Complaint and in favor of Plaintiff-Counterdefendant
LZT/Filliung Partnership, LLP, on Defendant-Counterplaintiff
Cody/Braun & Associates, Inc.'s Counterclaim. Each party shall
bear its own attorney's fees and costs.
SO ORDERED THIS 12TH DAY OF OCTOBER, 2000.
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