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Jun 09 2014

Federal Appeals Court Explains Significant Limits on Architecture Copyright

Architect James Zalewski had apparently seemed to do everything right. He drafted plans for his version of an American Colonial house; he filed and obtained copyright registration for the plans; when two local builders wanted to use his plans to develop homes, he made them pay for licenses to use the plans; when they then had a new architect make new plans off of his designs after the licenses expired, he brought suit in Federal court in the Northern District of New York.  The court dismissed his lawsuit and awarded attorney’s fees saying that there was nothing protectable about his designs. In upholding that ruling, the Second Circuit (the Federal Appeals Court  that covers New York) took the time to clarify how NY Federal courts will review architectural copyright claims. Essentially, the court determined that most architecture relies on some prior basic concepts and that an arrangement of those concepts in a particular way does not constitute a copyrightable work.

The court first quickly explained that when the Congress drafted the Copyright Act of 1976 it left out “architectural works” as works of art subject to copyright. But when Congress sought to bring the Copyright Act in line with the Berne Convention (an international agreement that governs copyright protection which requires member nations to protect architectural designs) it passed the Architectural Works Copyright Protection Act of 1990 and added “architectural works” to the list of protectable material.

The court then set out the three elements necessary to prove an infringement claim regarding architectural works:  1) that the work is protected by a valid copyright, 2) that the defendant copied the work, and 3) that the copying was wrongful. These three elements are actually applicable to all infringement claims not just those dealing with architecture. Because the plaintiff had registered his plans with the Copyright Office, item #1 was established. Reviewing the two sets of plans involved, the court flet that item #2 – copying- was also established.  But the issue came with item #3 – was the copying wrongful.  In order to be wrongful, the court said the copying  must copy protectable elements of the designs. In so holding, the court rejected the defendant’s argument to apply the standard used by the Eleventh Circuit in an architecture infringement case called Intervest Construction, Inc. v. Canterbury Estate Homes, Inc.  In that case, the court said that all works of art fall into three categories each with its own level of protection – (1) creative (wholly original); (2) derivative (arising out of a previous creative work) or (3) compilation (combination or collection of creative and derivative works). The Intervest court said architecture falls into the compilation category which is afforded the weakest protection. The court here said that this basic categorization is not supported by the Copyright Act and should not be applied. Instead it held that courts should treat architecture cases no differently than any other copyright infringement case. It recognized that all art incorporates basic “scenes a faire”  that kind of come with the territory. For example,  a gunfight between cowboys and Indians in a western movie. Similarly, the court said,  “merger doctrine” instructs that some ideas can only be expressed in a limited number of ways – single words or colors for example. When expression is so limited, idea and expression “merge” so that there is nothing protectable about that particular expression.

 

Classic Colonial home design circa 1920

Classic Colonial home design circa 1920

Applying those tow doctrines to the plans at issue, the court found that Zalewski basically just drew his version of a classic American Colonial home.  His plans -which called for a front door at the center of the home, with a porch in either side – was merely a merger of the idea of a basic Colinial home and that these elements were mere scenes a faire associated with a Colonial home.. The Court stated:

Plaintiff can get no credit for putting a closet in every bedroom, a fireplace in the middle of an exterior wall, and kitchen
counters against the kitchen walls. Furthermore, the overall footprint of the house and the size of the rooms are “design parameters” dictated by consumer preferences and the lot the house will occupy, not the architect. Finally, most of the similarities between Plaintiff’s and Defendants’ designs are features of all colonial homes, or houses generally. So long as
Plaintiff was seeking to design a colonial house, he was bound to certain conventions. He cannot claim copyright in those conventions.  

   Because plaintiff chose to work in such a conventional and classic style of architecture, he cannot claim copyright  infringement when the defendants merely copied his expression of a style that is essentially in the public domain. The court offered the Guggenheim Museum in New York, designed by Frank Lloyd Wright as an example of an original copyrightable architectural design.

The messages in this case are two-fold: (1) Not all copying is wrongful and (2) If you want protection for your design be creative, be new and break away from traditional architectural concepts that have been around for decades. Otherwise your “infringer” will just be found to have copied  from a copy and you’ll find yourself possibly paying his legal fees besides.

   

 

2 comments

  1. Greg

    Nice article. But what’s the case cite?

    1. Oscar Michelen

      Thanks. Forgot the cite – Zalewski v. Cicero Builder Dev. Corp (not yet published) 12 cv 3448, 12 cv 3450 and 12 cv 5127 (2d Cir. 2014)

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