Who Copied Whom? Copyright, Breach of Contract Lawsuits Shroud Surfside Project

In a case of who copied whom, a big-name Miami architectural firm claims copyright infringement for illegal use of its work by another architect, and a developer accused the same firm of duplicating parts of a Surfside project at a nearby building.

Kobi Karp Architecture & Interior Design Inc. and The Surf Club Apartments Inc. entered a $1.46 million agreement in 2018 for the architectural firm to work on the developer’s 11-story Surf Club II hotel-condominium.

The Surf Club Apartments terminated Kobi Karp’s agreement for Surf Club II last year. Shortly after, issues started playing out in court.

Kobi Karp Architecture sued the new architect, O’Donnell Dannwolf & Partners Architects based in Hollywood, and its president Kurt Dannwolf for federal copyright infringement Nov. 5 and filed an amended complaint Jan. 8.

Kobi Karp’s complaint said O’Donnell Dannwolf applied to the Miami_Dade County Historic Preservation Board for partial demolition and reconstruction of the Seaway building on the Surf Club II site and included some of Kobi Karp’s copyrighted work.

The federal complaint said O’Donnell Dannwolf altered Kobi Karp photos for the project. Kobi Karp argued O’Donnell Dannwolf wasn’t allowed to use its work until the developer paid its bills in full.

“To date, KKAID’s invoice remains unpaid, as a result of which TSAI (The Surf Club Apartments Inc.) and ODP (O’Donnell Dannwolf) are not licensed to use KKAID’s (Kobi Karp Architecture) works,” the complaint said.

The Surf Club Apartments developer turned around and sued Kobi Karp over the same invoices Dec. 12, claiming “the owner not only paid KKAID for all services KKAID performed to date, but the owner overpaid KKAID.”

The developer claims it shelled out to fix Kobi Karp errors and the architectural firm is asking for over $2 million for work it didn’t do, attending meetings it was supposed to attend without extra compensation and other unsupported charges, according to the Miami-Dade Circuit Court complaint. The developer also claims Kobi Karp is wrongfully seeking another $4 million for the use of its work to obtain the county historic board’s approval for a certificate of appropriateness.

The Surf Club Apartments owner also accused Kobi Karp of copying a Surf Club II element at a project down the street. Kobi Karp used “almost identical” travertine marble cladding for the balconies at Arte Surfside about two blocks south of Surf Club II. This means the Surf Club II developer must redesign its own project to avoid looking like it was copying, according to the complaint.

“Kobi Karp’s actions left our client with no choice but to file suit to protect its rights and to recover its damages,” said Miami attorney Todd Levine, who filed The Surf Club Apartment suit against Kobi Karp. Levine of Kluger, Kaplan, Silverman, Katzen & Levine signed the complaint along with fellow founding member Alan Kluger.

Kobi Karp attorney Dennis Richard of Richard and Richard in Miami said The Surf Club Apartment suit was filed in response to Kobi Karp Architecture’s federal copyright suit.

“Kobi Karp worked tirelessly to preserve the architectural history of the Surf Club and the historic adjacent Seaway. Kobi Karp Architecture filed a federal copyright lawsuit to protect that legacy. This lawsuit seeks to escape the federal court’s resolution of the issues,” Richard said by email.

Kobi Karp’s federal complaint was filed by David Friedland of Friedland Vining in Miami, who didn’t return a request for comment by deadline.

O’Donnell Dannwolf attorneys are Andrew Schindler and Brooks Miller of Gordon & Rees in Miami. Miller declined to comment.

They filed a motion to dismiss, arguing no claim for copyright infringement was stated, the O’Donnell Dannwolf submission to the county historic board amounted to fair use, and the lawsuit fails to adequately plead a trademark infringement and unfair competition claim.

“The complaint does not plausibly allege any act by defendants that violated any of plaintiff’s exclusive rights under the Copyright Act,” according to the motion to dismiss. “The 2019 certificate of appropriateness application identifies owner (The Surf Club Apartments) as the applicant, not” O’Donnell Dannwolf. “In any event, the mere resubmission of the previously approved instrument of service with the 2019 certificate of appropriateness application constitutes fair use.”

The motion also pointed out O’Donnell Dannwolf didn’t profit from submitting the work as they were turned in to a historic board and not a commercial venture.

This motion was denied as moot once Kobi Karp amended its complaint.

Architect of Record

One issue in dispute is whether Kobi Karp Architecture was hired as the architect of record for Surf Club II. The Surf Club Apartments solicited for an architect of record and invited Kobi Karp to participate but said it didn’t select the firm for the job.

Kobi Karp Architecture was hired as a Surf Club II architect — but not an architect of record — to review designs, make sure they complied with building codes and make corrections, according to The Surf Club Apartment’s complaint. Kobi Karp also had to review and correct the work of another project architect, Joseph Dirand Architecture, and make sure Surf Club II conformed to town and other requirements. Kobi Karp was hired to correct mistakes in the plans at no additional cost to the owner. Also, Kobi Karp agreed not to reproduce the building design in any other South Florida project without the building owner’s permission, according to the complaint.

Kobi Karp’s complaint says it was the architect of record and O’Donnell Dannwolf was hired to succeed Kobi Karp for the job, but O’Donnell Dannwolf submitted Kobi Karp’s copyrighted work to the county while Kobi Karp’s agreement was still in effect.

The Surf Club sent Kobi Karp a termination notice last Sept. 19, or after the county historic board approve the Seaway application, but The Surf Club maintained notified Kobi Karp in August by phone that it would terminate its agreement.

Fort Partners LLC founder Nadim Ashi signed the Kobi Karp agreement with The Surf Club Apartments, and the state Division of Corporations lists Ashi as The Surf Club Apartments director and gives the same business address as Fort Partners.

Surf Club II, which is to have a 31-key hotel and 48 condominium units, is to rise at 9133 and 9149 Collins Ave. The three-story Seaway Villas on the site will remain and be repurposed.

The project is about a block north of Fort Partner’s completed Surf Club, which includes a Four Seasons hotel and condos next to the historic club used by stars like Frank Sinatra and Elizabeth Taylor as an exclusive hideaway.