In what appears to be a significant setback for the developers of the proposed Ashby High Rise, they and their architects have been sued in federal district court in Houston.  Last Tuesday, Humphreys & Partners Architects, a Dallas-based firm that creates and markets architectural designs, sued Buckhead Investment Fund and EDI Architecture, alleging that Buckhead’s design for the Ashby High Rise infringes on the plaintiff’s copyrights for a similar project in Minneapolis named Grant Park.  Specifically, Humphreys alleges that Buckhead and EDI obtained Humphreys’ architectural plans, removed or altered its name and copyright information from the plans, and then used them or derivatives of them in their Ashby permit applications to the City of Houston.  Humphreys even alleges that the “blueprint” design on the Buckhead website (here) is taken from its Grant Park plans.

 

Click here for a copy of the complaint.

 

What is not described in the complaint is the background to the current dispute, but we have been told that at some time in the past, Buckhead engaged Humphreys with respect to the Ashby project.  In conjunction with this engagement, Humphreys showed Buckhead their Grant Park plans, but Humphreys never prepared any plans for the Ashby project and Buckhead ultimately told Humphreys that they planned to go in a “different direction.”  However, that different direction is alleged to look remarkably like Humphreys’ Grant Park project.  The allegations here go well beyond the exterior appearance, but at least as to the exterior, you be the judge.  Compare Grant Park with Buckhead elevations for the proposed Ashby project.

 

If the plaintiff’s allegations that it registered its copyright are correct, then many of the legal burdens that are traditionally borne by the plaintiffs are shifted to the defendants.  Humphreys is seeking actual damages, including lost profits, and its attorneys fees, and it is also asking for an injunction against the construction of the project using the infringing plans.  Under the relevant law, the court may also order the United States Marshal’s Service to seize all copies of the infringing plans from Buckhead and EDI, as well as any that have been filed at the City of Houston.

 

In all respects, this appears to be a serious suit.  The plaintiffs are represented by experienced and capable counsel.  The plaintiff reportedly succeeded on a similar claim involving a project in California in 2000.  In that case, which involved similar facts, the project–which had been built at the time of trial–was rendered essentially useless because all of the future income derived from the project had to be given to Humphreys.

 

Furthermore, until this suit is resolved, we doubt that this project could obtain the equity investment and debt financing to allow it to be constructed.  The suit does not appear to be the type of case that can be resolved quickly, and as a result, we expect this lawsuit to prevent any meaningful progress on the Ashby High Rise for the foreseeable future. Buckhead and their architects will each have to hire counsel to defend the suit, and it will be interesting to see how each responds.  If the plaintiff is successful, in addition to Buckhead likely having to pay damages to the plaintiff, they will have to completely start over on this project with a non-infringing design and all of the money spent on their current plans will have been wasted.  Even if the plaintiff is not successful or eventually agrees to a monetary settlement, Buckhead will still have to pay their lawyers and delay their plans until the suit and any appeals are resolved or the matter is otherwise settled. 

 

We will monitor the developments in this case and keep you advised.  In the meantime, please continue to display your bumper stickers and yard signs and send the Mayor and the members of City Council an email asking whether the City should be taking action on a permit application for plans that may have been unlawfully appropriated.