In 2004, the Fourth Circuit revived a two prong test for a copyright claim involving architecture between two home builders in Charles W. Ross Builder, Inc. v. Olsen Fine Home Building, 2012 WL 5447871 (4th Cir. Nov. 8, 2012). Rick and Jennifer Rubin, who wished to build new home, had visited the plaintiff Ross’s model home and received a copy of a brochure, including the “Bainbridge” model allegedly copied by the builder that the couple later hired. Months later Ross Builder’s representative visited the couple’s house and saw that the house resembled the “Bainbridge” model. Subsequently, Ross Builders sued the couple and their builder and architect for copyright infringement.
The district court awarded summary judgment in favor of the defendant based on lack of substantial similarity because both the model and the house incorporated classic elements of Georgian architecture and were subject to design restrictions imposed by Ford’s Colony. The ruling was based on the Second Circuit’s “discerning observer” test, which distinguishes between protectable and non-protectable elements of design.
However, on appeal, the Fourth Circuit vacated and remanded the lower court’s decision on the basis that the lower court applied the incorrect test. The Fourth Circuit acknowledged that the Fourth Circuit had not previously considered a copyright claim brought under the Architectural Copyright Act, but said it had used a two-part “intrinsic/extrinsic” test involving furniture design in Universal Furniture Int’l v. Collezione Europa USA Inc., 618 F.3d 417 (4th Cir. 2010). The extrinsic test is an objective inquiry that reviews external criteria of substantial similarities in both ideas and expression, whereas the intrinsic test is a subjective inquiry as to whether an ordinary observer in the intended audience would be disposed to overlook them and to regard the aesthetic appeal as the same.
More recently, in Building Graphics, Inc. v. Lennar Corp., 708 F.3d 573 (4th Cir. 2013), the Fourth Circuit upheld the Olsen decision under similar facts and ruled that in order to establish a claim for copyright infringement, a plaintiff must prove that it owned a valid copyright and that the defendant copied the original elements of that copyright by a two-part “intrinsic/extrinsic” showing of substantially similarity. The Fourth Circuit further explained that the access to copyrighted work may be shown by demonstrating that the infringer had an opportunity to view or to copy the protected material. But this showing must establish more than a “mere possibility that such an opportunity could have arisen”; rather, “it must be reasonably possible that the paths of the infringer and the infringed work crossed.”