Attorney Steve® Copyright Essentials - Copyrighting architectural plans and drawings. Protect your intellectual property!!
Many people are not aware that architectural works can be registered with the United States Copyright Office. Here is an overview of how a federal court copyright lawsuit can result for infringement of architectural copyrighted works.
According to the United States Copyright Office:
"An architectural work is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. Copyright protects architectural works created on or after December 1, 1990. Copyright also protects unconstructed architectural works embodied in unpublished plans or drawings on December 1, 1990, if the design was constructed on or before December 31, 2002. The Copyright Office may register a claim to copyright in an architectural work if the work is a humanly habitable structure that is intended to be both permanent and stationary. Examples of works that satisfy this requirement include houses, office buildings, churches, and museums. By contrast, the Office will refuse to register bridges, cloverleaves, dams, walkways, tents, recreational vehicles, or boats (although a house boat that is permanently affixed to a dock may be registerable as an architectural work).
The authorship in an architectural work includes the overall form of the building—the exterior elevations of the building when viewed from the front, rear, and sides—as well as any arrangement and composition of walls or other permanent structures that divide the interior into separate rooms and spaces. Copyright does not protect the following elements: • Individual standard features of the architectural work, such as windows, doors, or other staple building components. • Standard configurations of spaces, such as a square bathroom or one-room cabin. • Purely functional features of an architectural work, such as innovations in architectural engineering or construction techniques. • Interior design, such as the selection and placement of furniture, lighting, paint, or similar items."
Case study: Savant Homes, Inc. v. Collins, 809 F.32 1133 – United States Court of Appeals, First Circuit.
A custom home designer held a registered copyright in a floor plan. The home designer brought action against homeowners, a builder, and a designer, alleging copyright infringement, contributory copyright infringement, civil conspiracy, trade dress infringement, and other claims.
Plaintiff Savant Home, Inc. (“Plaintiff”) was a custom home designer and builder. Plaintiff hold a registered copyright for a floor plan of a three-bedroom ranch house (“Anders Plan”). Plaintiff built a model house using the Anders Plan in Windsor, Colorado (“Savant house”).
The Ander's Plan was a “ranch house with two bedrooms on one side and a master suite on the other, separated by a combined family room, dining room, and kitchen.” At the time of the case, Savant had built and sold six Anders Plan houses.
The Wagners toured the Savant house in June of 2009. During the tour, the obtained a brochure of the Anders Plan. Subsequently, the Wagners hired builder Douglas Collins and his firm, Douglas Consulting, LLC (“Collins”) to build a house. Collins, in turn, contracted with Stewart King for the design of the house. The Wagners, Collins, and Mr. King returned to the Savant house in August. Collins completed construction of the Wagners house on 300 Madera Way in 2010. After the completion of the first house, the Wagners separated and Ms. Wagner hired Collins and Mr. King to build a second house at 8466 Blackwood Drive, Windsor, CO.
Both houses commissioned by the Wagners were ranch houses with “two bedrooms on one side and a master suit on the other, separated by a combined family room, dining room, and kitchen.”
Plaintiff sued Collins, Mr. King, and the Wagners (“Defendants”) for copyright infringement, contributory copyright infringement, civil conspiracy, trade dress infringement, and other claims. Plaintiff alleged that the two houses commissioned by the Wagners were copies of the Anders Plan.
On the copyright infringement claim, the district court concluded Savant had not shown that the Anders Plan included any protectable content. The court also concluded the contributory copyright infringement and civil conspiracy claims failed because they were dependent on the copyright infringement claim. Finally, the court granted summary judgment on the trade dress infringement claim because Plaintiff “offered insufficient evidence of (1) inherent distinctiveness or secondary meaning and (2) a likelihood of confusion.”
Attorney Steve Tip: In a civil case, the Plaintiff normally must bear the BURDEN OF PROOF
Plaintiff appealed the grant of summary judgment on copyright infringement, contributory copyright infringement, civil conspiracy, and trade dress infringement. The appeal was heard by the United States Court of Appeals for the Tenth Circuit who affirmed.
Did the houses commissioned by the Wagners infringe Plaintiff's copyright given that the three houses had many similarities but that much of the Anders Plan incorporated industry standard aspects?
RULE OF LAW:
The elements of copyright infringement are:
(1) ownership of a valid copyright,
(2) copying of constituent elements of the work that are original.
To establish that constituent elements of the work were copied, a plaintiff must demonstrate:
(1) that the defendant copied the plaintiff's work as a factual matter;
(2) substantial similarities between the allegedly infringing work and the elements of the copyrighted work that are legally protected.
The second component “determines whether a defendants factual copying constitutes infringement.”
To decide the substantially similar issue, a court must determine:
(1) which of the elements of the copyrighted works are protectable;
(2) whether those elements are substantially similar to the accused work. Substantial similarity exists when the “accused work is so similar to the plaintiff's work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protectable expression by taking material of substance and value.” (17 U.S.C. § 102(a)(8)).
A work is original where the work is independently created by the author and not copied from other works, and it possesses at least some minimal degree of creativity. However, the requisite level of creativity is extremely low and even a slight amount will suffice. (17 U.S.C. § 102(a)).
Section 102(b) says that “in no case does copyright protection for an original work of authorship extend to any idea… regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
Courts generally distinguish between originality and non-originality as the difference between an idea and an expression.
The Copyright Act protects “architectural works,” 17 U.S.C. § 102(a)(8), which it defines as the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.”
Here, the Court found that Plaintiff did not establish any original elements of the Anders Plan that could be protectable under the Copyright Act.
- Trade Dress (§2 Lanham Act)
Under § 43(a) of the Lanahm, a plaintiff may obtain relief for the infringement of an unregistered trade dress. To obtain relief, a plaintiff must show:
“(1) the trade dress is inherently distinctive or has become distinctive through secondary meaning;
(2) there is a likelihood of confusion among consumers as to the source of the competing products;
(3) the trade dress is nonfunctional.”
The Court found that the Plaintiff did not offer any evidence of any original protectable elements of the Anders Plan and therefore could not argue that any part of the Anders Plan could be considered trade dress.
Defendants offered an expert report by architect Rob Fisher which stated that much of the Anders Plan was standard among three-bedroom ranch houses. Mr. Fisher also provided “four example floor plans from a third-party online plan services company, monsterhouseplans, which included similar layouts.” Plaintiff's expert failed to point to any specific or overall aspects of the Anders Plan that could be considered creative and acknowledged that “[m]any homes in this neighborhood, and many others, likely share very similar programs.” The district court granted the Defendants' summary judgment motion on every claim.
While Plaintiff's expert report opined that various elements of the house were unique, it failed to support its assertions with evidence. On the other hand, Defendant's expert provided a report which broke down the individual elements of the Anders Plan and concluded there were no protectable elements. Rather, Defendant's expert concluded that the Anders Plan consisted almost exclusively of standard elements arranged in a standard fashion. Because standard content is not entitled to copyright protection, the Defendants met their burden of “making a prima facie demonstration of the absence of a genuine issue of material fact.”
Further, the Court rejected Plaintiff's argument that the district court erred by applying the AFC test. The abstraction-filtration-comparison test (“AFC Test”) is used for analyzing substantial similarity. At the abstraction stage, a court “separates the ideas, which are not protectable, from the particular expression of the work.” Then they “filter the non-protectable components of the product from the original expression.” Finally, they “compare the remaining protected elements to the allegedly copied work to determine if the two works are substantially similar.” Plaintiff argued that this test is inapplicable to architectural works because the Court's decision in Blehm affirmed the D.C. Circuit's approach which looked at both the discrete elements and the “overall look and feel” of the architectural work.
The Court reasoned that even if the AFC Test was not applicable, Plaintiff failed to establish any protected element of his plan. Additionally, the Court rejected Plaintiff's contention that the AFC test is inapplicable to architectural works for three reasons:
(1) Blehm in fact explained that the AFC test “shares the goal of the general substantial similarity analysis applied to any work,”
(2) Blehm only referred to the D.C. Circuit's approach, it did not affirm it,
(3) even if the Court were to follow the D.C. Circuit's emphasis on the “overall look and feel” of a work, it does not suggest the categorical inapplicability of the AFC test to architectural works.
Additionally, the Court rejected Plaintiff's argument that the district court committed two reversible errors in its treatment of the expert reports. First, the Plaintiff forfeited the argument that the district court improperly adopted a legal conclusion from Mr. Fisher's report because Plaintiff failed to object to the report on this ground in its opposition to summary judgment. The Court also said that the district court correctly considered the Plaintiff's expert's report and concluded it offered no evidence of protectability of any element or arrangement of elements.
The Court affirmed the district court's grant of summary judgment on the contributory copyright infringement and civil conspiracy claims because they were derivative of the copyright infringement claim.
Finally, Plaintiff argued that the Anders Plan was protected as a trade dress. Plaintiff argued that its trade dress was inherently distinctive based on the nine elements it alleged were original or unique. The Court held that the Plaintiff failed to show that the trade dress features were inherently distinctive because Plaintiff failed to argue or provide evidence that the nine elements are original and unique so as to make the alleged trade dress inherently source-identifying. The Court also noted that Plaintiff failed to rebut Defendant's expert's report which found that the Anders Plan consisted of standard content, which would preclude a finding of inherent distinctiveness. The Court also rejected Plaintiff's argument that proof of intentional copying suggested a secondary meaning and said that sales volume alone was not enough to establish secondary meaning.
This case demonstrated the importance of the distinction between an idea and its expression. Here, the Court was unwilling to provide copyright protection for an architectural design that incorporated concepts that were mostly standard in normal architectural designs.
This blog was written by Ms. Claudia Lin, U.S.C. law student.
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