Expert Witness Blog
Summary: Architecture Expert Witness testimony allowed in part even though the plaintiff argued that an opinion on substantial similarity is not needed as the test is whether the designs are similar to an ordinary observer.
Facts: This case (Design Basics, LLC v. Forrester Wehrle Homes, Inc. et al – United States District Court – Northern District of Ohio – May 23rd, 2019) involves a copyright infringement claim. The plaintiff alleges that the defendant infringed their copyrights in a number of architectural plans and used them without permission to build single-family homes in Northwest Ohio and Southeast Michigan. The defendant has hired Architecture Expert Witness Richard Kraly to provide testimony in this case. The plaintiff has filed a motion to exclude this testimony.
Discussion: Kraly opines that none of the plaintiff’s plans contain protected expression and, even if the plans did contain protected expression, the defendant’s plans are not substantially similar to the plaintiff’s plans. The plaintiff argues that the first opinion is moot because the court opined at the summary judgment phase that each of the plaintiff’s plans contains protected expression. Regarding the second opinion, the plaintiff argues that there is no need for expert testimony on the issue of substantial similarity as the test is whether the parties’ designs are similar to an ordinary observer.
The court opines that Kraly will be able to opine that the plaintiff’s designs do not contain protected expression. The court further notes that Kraly identifies multiple external considerations that deprive the plaintiff’s of protected expression. The court opines that this testimony will assist the jury in filtering out the unprotected components.
The court also opines that Kraly will not be allowed to opine as to whether the plaintiff’s and defendant’s plans were substantially similar. The court opines that the traditional approach in determining whether two works are substantially similar is the ordinary observer test, which does not rely on expert analysis or dissection. The court further notes that the inquiry of the second prong of the substantial similarity test should focus on the intended audience which will ordinarily be a member of the lay public.
The court also notes that the jury’s answer to the substantial similarity question will turn on the jurors’ own impressions of the similarities or differences of the works. Thus, the court opines that Kraly’s proposed testimony, that of an architect with special training and knowledge of the issue at hand in this case, would not be helpful to the jury and is therefore not admissible.
Conclusion: The motion to exclude the expert witness testimony of Richard Kraly is denied in part and granted in part.