With the $350 million Saracen Casino Resort under construction in Pine Bluff, a federal lawsuit is just getting underway over who designed it.
Renowned architect Marlon Blackwell of Fayetteville alleges in the suit that his firm designed the casino, but a Memphis design firm — a firm Blackwell brought into the project — is taking credit for it.
Blackwell also alleged in the suit, filed in December, that HBG Design Inc. “provided false information” to John Berrey, chairman of the Quapaw Nation, leading to Blackwell’s firm being removed from the project in March.
With Marlon Blackwell Architects off the job, HBG was poised to receive all the fees for the project instead of splitting them with Blackwell’s firm, according to MBA’s lawsuit, which was filed in U.S. District Court. Blackwell said his share of fees should be $4.45 million.
MBA is suing HBG Design over allegations that include copyright infringement and for damaging its business relationship with the Quapaw Nation and Saracen Development LLC in connection with the Saracen Casino Resort project. Saracen’s 80,000-SF casino is being built across the street from the Saracen Annex, which opened five months ago. The casino is expected to be open in June.
MBA also named as defendants Berrey and Saracen Development, which is developing the Saracen Casino Resort, accusing them of copyright infringement.
“We are very surprised by this litigation, but we plan to defend ourselves and a very needed and community-minded successful project,” Berrey said in a statement. He declined to comment further.
HBG did not return calls seeking comment.
Blackwell’s attorney, Mark Henry of the Fayetteville office of the Rose Law Firm, said Berrey should not have been surprised by the lawsuit because Blackwell had been trying to get paid for months, and his attorney had warned Berrey that the lawsuit would be coming.
Blackwell’s firm “invested tremendous amounts” of time in designing the project, Henry said. “And then HBG comes in and refines some of it. And boom, they put their name on it, and we’re out.”
Law professors said that for Blackwell to win his case he must show that HBG had access to his work and then copied it.
“If there are similarities between what the defendant firm is doing and what was originally designed by the plaintiff’s firm, then we can sort of infer from that that they copied it,” said David Shipley, a professor at the University of Georgia School of Law, who teaches and writes on copyright topics.
If a unique aspect of the casino design was in the plaintiff’s design and then appears in the defendant’s work, “I think that really helps him out,” he said. “What you have to show to win is substantial similarity of protected expression.”
After seeing a copy of Blackwell’s lawsuit, which included the renderings, Shipley said in an email that “this is a big project and based on the sketches, etc., in the complaint, the casino has a unique look.”
Cathay Smith, an associate professor at the University of Montana School of Law, said she is noticing more architecture copyright cases.
“I wonder if this is going to be the trend going forward,” said Smith, who teaches courses on intellectual property law.
In 1990, Congress passed the Architectural Works Copyright Protection Act to protect the intellectual property of architects, she said.
So maybe architects are picking up on that as something they should be enforcing, Smith said.
Blackwell also is asking that every document associated with the Saracen project include this statement:
“This work is a derivative of the copyrights owned by Marlon Blackwell Architects, P.A.,” the lawsuit said.
Adding the statement would “avoid any misperception that HBG is an owner, author, or creator of the designs and works” connected with the Saracen Casino Resort project.
Smith said that copyright owners also have the exclusive right to create a derivative of their work. An example would be a novel turned into a movie; the screenplay is derivative of the novel.
Developing the Project
Blackwell’s relationship with Berrey and the Quapaw Nation began about five years ago. Some of the projects Blackwell worked on included a VIP lounge for the Downstream Casino Resort in Oklahoma.
The Quapaw Nation “was very happy” with Blackwell’s work, Blackwell said in an interview with Arkansas Business. “And I think [the work] inspired confidence to think about bigger things like the new casino in Arkansas.”
Meanwhile, Blackwell was receiving awards for his various projects. In 2016, Architect Magazine named MBA the No. 1 design firm in the country. And in December, the American Institute of Architects awarded Blackwell, who also is a professor at the University of Arkansas, the 2020 Gold Medal, which is the AIA’s highest annual honor. It recognizes people whose work has had a lasting influence on the theory and practice of architecture.
In July 2017, Berrey, the chairman of the Quapaw Tribal Business Committee, asked Blackwell “to conceptualize a casino for them” to generate some interest for a possible casino in Arkansas.
“We developed some initial designs,” Blackwell said. But then not much happened for about a year.
In 2018, enough petition signatures were collected to place Issue 4 on the November 2018 ballot in Arkansas to allow casinos in Pope and Jefferson counties and allow the Oaklawn Jockey Club Inc. in Hot Springs and Southland Racing Corp. in West Memphis to become full-fledged casinos.
In August 2018, Blackwell said, Berrey asked him to further develop his initial concept for the casino.
“MBA’s original vision for the architecture of the new casino was dramatic and constituted a substantial departure from other casinos around the country,” the lawsuit said. “The roof and tower had an exceptionally unique design comprising a unified material and formal logic theory and structure.”
Blackwell said the idea behind the design of the casino was “to create a beacon of hope.”
He said he wanted to use the elevator tower, which is about 14 stories tall, “as something that was an extension of the casino rather than just feeling like it was added to it. So it becomes a singular figure in the landscape, much like when you see the rice mills.”
The project would also feature “interference blue” stainless steel, which changes colors in the light. And the tribe’s colors are blue and red.
He said the idea also was to see the casino from a car and “have this real presence.”
“So we really conceived of the roof becoming the wall that wraps the hotel and then becomes the roof of the gaming floor,” he said. “I describe it like a big blanket geometric design.”
After the state’s voters approved the amendment in November 2018, Berrey wanted the entire construction project completed within 11 months, according to the lawsuit.
That meant Blackwell’s initial design and construction drawings and plans needed to be completed in less than six months. Blackwell said he hired four people and “cleared our deck for this” project, which was the biggest in his firm’s history.
“I kept reminding Chairman Berrey this isn’t just a state project. It’s a national project,” Blackwell said. “And they were excited about that potential.”
Blackwell said he had told Berrey that his firm would need to hire another firm to act as the architect of record, but Blackwell’s firm would be the design architect.
“Of course, we would be involved in all phases of design and construction,” he said. “We would take on the lion’s share at the beginning and [the other firm] would take on the lion’s share after the design going forward.”
During December 2018 and January 2019, MBA had named three potential firms that could help with the project. One of the firms was HBG Design, which touts itself on its website as being one of the top five hospitality design firms in the country.
Blackwell said he was familiar with the firm because he knew one of the partners.
After HBG was selected, MBA and HBG agreed to split the net architectural fees for the rest of the project, which were $14.9 million, with nearly 35% for MBA and the remainder going to HBG.
Throughout the project, HBG had direct access to Blackwell’s copyrighted architectural design works, the lawsuit said.
On Feb. 26, Blackwell, according to the lawsuit, told Berrey that “our design team and the construction team are working diligently together to get issues resolved and get the project in on budget while maintaining design and functional integrity. … I am confident of our direction and getting the project in line with expectations … and yes this is fun!”
Berrey responded by saying, “You made my day brother!” the lawsuit said.
But soon “everything kind of went south,” Blackwell said.
March 2019 Meeting
On March 6, Blackwell attended a meeting that included Berrey, HBG and contractors. At that time, “everything’s good,” Blackwell said.
But by March 9, the relationship had soured, and Blackwell said he doesn’t know why.
Henry, Blackwell’s attorney, said, “Something false was said within those 48 hours. Emotions must have been high and, … then HBG offered this solution of ‘we can take it from here,’ so that’s what we understand happened.”
The lawsuit alleges that HBG provided false information to Berrey in order to stop MBA from working on the project and sharing in the fee.
On March 15, Berrey told Blackwell in an email that “we should part ways on this project.” Blackwell said he tried to talk to Berrey to learn what happened, but Berrey wouldn’t talk to him.
On March 26, “Berrey informed Mr. Blackwell that after ‘talking to all of the team’ he could not see MBA ‘returning in the current capacity.’”
Since then, HBG allegedly has “continued working with MBA’s designs and has made derivative works without MBA’s authorization,” the lawsuit said. In addition, the suit said that HBG had “claimed original authorship to the project.”
In the statement in response to the lawsuit, Berrey said: “We think that Mr. Blackwell is a very talented boutique architect. But functionality and constructability was lost in our process. We had hoped he was able to mold our specific needs into a great expression of the history of the wonderful Pine Bluff community, but it became very clear he didn’t share our vision.”
Berrey’s statement was “completely false,” Blackwell said.
“The reality is we generated something that’s an iconic design,” Blackwell said. “We were working diligently on it to bring it to realization in a very accelerated timeline, and about a third of the way through, we were dumped off of it.”
As of Thursday morning, none of the defendants had filed an answer to the lawsuit.