Doug Martin and Eric Stevens of Poyner Spruill, LLP successfully defended a claim for copyright infringement in architectural plans. Plaintiff Building Graphics, Inc., an architectural firm in Charlotte, NC, alleged that design firm Drafting & Design, Inc. and builder Lennar Carolinas, LLC infringed its copyright in three home plans. The defendants denied that they had copied, or ever seen, the plaintiff’s designs. To defeat summary judgment in a copyright infringement case, a plaintiff must produce evidence (a) that defendant had access to the plaintiff’s copyright-protected work; and (b) that the challenged and copyright protected works are substantially similar. The district court granted defendants’ summary judgment motions, ruling that the plaintiff had failed to satisfy either of these requirements. The plaintiff appealed to the Fourth Circuit Court of Appeals. In a published ruling issued February 26, 2013, the Fourth Circuit affirmed. The Court ruled that the plaintiff failed to produce evidence that it was “reasonably possible” the defendants ever saw or had the opportunity to copy the plaintiff’s plans. Plaintiff argued it was “possible” that defendants accessed plaintiff’s plans because homes using plaintiff’s plans were built in Charlotte. Based on its customary practice, Lennar might have come across one those homes while conducting a “due diligence” review of other homes available in the market. Plaintiff also noted that it had published its plans on an internet website. The Fourth Circuit ruled this evidence was not sufficient. Lennar’s due diligence was limited to new homes built by competitors in markets Lennar was entering, but there was no evidence that homes built with the plaintiff’s plans were located in any of those markets. The availability of plans on the internet did not matter absent evidence that Lennar was likely to come across those plans in a due diligence search or otherwise.