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Shalom Baranes Associates, P.C. v. Lauren Condos, LLC

United States District Court, D. Maryland

September 14, 2016



          Theodore D. Chuang, United States District Judge

         This copyright infringement action is before the Court on two Motions to Dismiss, the first filed by Defendant Robert M. Swedroe Architects & Planners, P.A. ("Swedroe)) and the second filed jointly by Defendants Lauren Condos, LLC ("Lauren") and 1788 Holdings, LLC ("1788 Holdings".. Having reviewed the Complaint and the briefs, the Court finds no hearing necessary. See D. Md. Local R. 105.6 (2016). For the reasons set forth below, the Motions are DENIED.


         In May 2003, Plaintiff Shalom Baranes Associates, PC ("SBA") entered into an agreement with Triumph Development,, LLC ("Triumph") to prepare architectural plans for a proposed condominium project at 4901 Hampden Lane ("4901 Hampden" or "the Property") in Bethesda, Maryland. Triumph was seeking to develop condominiums on the site, which was owned by Hampden Lane, LLC. The SBA-Triumph agreement divided the project into two phases. Phase I involved SBA's preparation of architectural plans and related documents for the site and required SBA to receive approval of the project from all relevant Montgomery County governing bodies. If SBA fulfilled its obligations in Phase I, the agreement required the parties to proceed to Phase II, the preparation of additional plans needed to obtain a building permit and construction contract for the approved condominium project. The agreement gave Triumph a limited, non-assignable license to use SBA's designs for the sole purposes of developing and building 4901 Hampden. No copyrights were assigned under the agreement.

         SBA drafted a development plan, a preliminary plan, and a site plan ("the SBA Plans") for 4901 Hampden, onto which it placed its copyright notice. On July 26, 2006, the Montgomery County Council ("the Council") approved SBA's development plan. As part of its approval,, the Council rezoned the site to the "TS-R zone, " a change that not only imposed certain maximum and minimum specification requirements for buildings to be constructed on the site, but also allowed the County to impose additional, customized requirements beyond those generally required for TS-R zone buildings. Together, these requirements are termed "Binding Elements."

         The majority of the Binding Elements imposed on the 4901 Hampden development were not strictly required as a result of the TS-R zoning designation, but were established through a multi-year process by which SBA adopted design changes based on feedback from Montgomery County officials and local citizens groups. At the end of this process, the Montgomery County Planning Board ("Planning Board") approved the SBA Plans and adopted certain characteristics of the final design as Binding Elements. These Binding Elements included the following items that were not specifically required by the TS-R zoning designation: (i) 40-70 dwelling units; (ii) building site coverage of no more than 65 percent; (iii) public use space of 2, 692 square feet, increased from the previously required 2, 255 feet; (iv) recreation space of 5, 990 square feet, increased from the previously required 4, 510 feet; (v) a building height of no more than 70 feet, with the northwest corner limited to 60 feet; and (vi) setbacks of 13 feet from Hampden Lane and Woodmont Avenue, two feet from Montgomery Lane, 18 feet from the adjacent townhouse lot, and 28 feet from the adjacent apartment lot.

         On March 19, 2008, the Planning Board provided final approval of the site plan, marking the end of Phase I of SBA's agreement with Triumph. Once the SBA Plans had been approved by all the relevant County authorities, development of 4901 Hampden had to be conducted in accordance with those plans, with any deviation requiring submission of a proposed amendment for approval.

         After the completion of Phase I, Triumph failed to obtain adequate funding to purchase 4901 Hampden and break ground on the project. SBA and Triumph accordingly terminated their agreement in May 2008, a termination that extinguished Triumph's limited, non-transferable license in the SBA Plans.

         By the fall of 2012, 1788 Holdings became interested in developing 4901 Hampden and began discussions with SBA about proceeding to Phase II of the project with the SBA Plans. In the course of these discussions, SBA informed 1788 Holdings of its copyright in the SBA Plans and that any use of those Plans was contingent on SBA being retained to prepare the additional plans needed for Phase II of the project. In November 2012, 1788 Holdings informed SBA that SBA would not be retained for Phase II. Instead, 1788 Holdings retained Swedroe to provide the Phase II architectural services. On December 13, 2012, SBA registered its copyright in the SBA Plans, including copyrights specifically for its technical drawings, site plans, and architectural renditions.

         According to SBA, 1788 Holdings and Swedroe used the SBA Plans as the basis for their own plans ("the Swedroe Plans") and made only minor changes to avoid having to redo the entire County approval process. At some point in 2012, the Planning Board approved an amendment, presumably proposed by 1788 Holdings and Swedroe, to the previously approved requirements for the development of 4901 Hampden. That amendment reduced the minimum number of dwelling units in the building from 50 to 40 and stipulated that a minimum of 15 percent of the units would be moderately priced. Specifically, the amendment made "no changes" to the building's "height, bulk, or ... arrangement" or to the building's "creative and innovative design" in its use of a "varied height limit." Am. Compl. ¶ 34. In 2014, Swedroe received approval for a second amendment, this one increasing the height of an elevator shaft by 6.5 feet, increasing the public-use space by 445 square feet, and permitting "cosmetic changes" to the northeast and northwest corners of the building. Id.

         In SBA's estimation, these two amendments left intact the bulk of the Binding Elements derived from the SBA Plans. SBA thus alleges that the Swedroe Plans were based on and therefore violated SBA's copyright in the SBA Plans. In particular, SBA asserts that the Swedroe Plans include an "overall building footprint and envelope, including its mass, its height, and its placement on the site" and "numerous unique features" that are "essentially the same" as those in the SBA Plans. Id. ¶ 29. SBA points to 14 specific aspects of the two designs, "by way of example, and not limitation, " that it asserts reveal that Swedroe copied its plans from SBA:

(i) the two buildings share the same overall footprint;
(ii) the two buildings share the same overall vertical section (7 floors plus an English basement exposed only on the east elevation);
(iii) the two buildings share the same creative and innovative design that employs a varied height limit wherein the two buildings are 70 feet for most of the building but drop to 60 feet at the northwest corner;
(iv) the two buildings contain the same number of square feet (approximately 94, 218);
(v) the two buildings have the same building lot coverage (65%);
(vi) the two buildings have the same setbacks (13 feet from Hampden Lane and Woodmont Avenue, 2 feet from Montgomery Lane, 18 feet from the adjacent townhouse lot, and 28 ...

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