Architects

John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26 (1st Cir. 2003). Architect draws up plans for residential real estate development. Developer then prevails upon zoning commission to approve parcel for proposed development. Zoning approval comes with restrictive covenant, running with land, requiring that any residential development conform to architect's drawings. Soon after construction begins, developer encounters financial woes, and never pays architect. Second developer then acquires parcel in foreclosure sale and attempts to secure variance in favor of new architectural plans. When variance is denied, second developer proceeds to build in conformity with original architect's plans. Original architect sues second developer for copyright infringement. District court awards partial summary judgment to architect on issue of infringement. At trial on damages, second developer offers expert testimony from architect David Barsky and condominium marketing consultant Sue Hawkes, who opine, over architect's objections, that certain features in original plans, such as placement of garages and parking areas, actually may have detracted from development's appeal. Hawkes also seeks to testify that site plans contribute only approximately 10-15% to condominium projects' overall appeal, but district court excludes that testimony as wanting in foundation. Jury awards damages roughly equivalent to entire profit from development project. Admissibility affirmed. Both experts were experienced professionals with relevant expertise, and district court did not abuse discretion in admitting their testimony under Kumho Tire. Nor did trial court err in barring Hawkes's testimony on contribution of plans to overall development value. But new trial is necessary to apportion damages, because only profits attributable to infringement are recoverable. At second trial, developer may do better job of laying foundation for Hawkes's estimate. More importantly, when jurors are given proper instructions on damages, under which apportionment need not be calculated with mathematical exactness, it will be less important for developer to produce precise figures.

Architects