Determination of architectural copyright infringement is a complex process requiring skilled attorneys in the Intellectual Property (IP) field. Over the years, courts have identified methodologies for evaluating architectural works and technical drawings, enabling architectural experts to assist attorneys and finders of fact in determining whether contested projects or designs are “substantially similar.” While architectural styles are iterative, collaborative, and evolve over time, there are limitations on how closely one project can resemble another, in detail or in total appearance.
In this article, Architecture expert Lee Martin provides insight into the complex nature of architectural copyright infringement disputes and provides an example from previous cases.
Architectural Copyright Infringement - Expert Article
Determinations of architectural copyright infringement are based on contractual provisions between architects and owners, and by the Architectural Works Copyright Protection Act of 1990 (AWCPA), which added architectural works, technical drawings, and “any tangible means of expression” as a category to the US Copyright Act of 1976. Previous copyright laws enacted in the United States in 1790 and again in 1909 were outdated, and failed to specifically address architectural works or technical drawings.
A couple engaged a residential designer (defendant) to prepare plans and administer the contract for construction of their lakeside retirement home. They were currently living in a home designed by that designer, but had previously met with two other designers (plaintiff) before returning to defendant for what would become the final design of their new home.
Plans were prepared and the house was constructed. When the house was featured in the Parade of Homes the following year, one of the previous designers (plaintiff) filed a copyright infringement lawsuit against the defendant.
Robson Forensic, Inc. was retained to determine whether the final and the earlier designs were “substantially similar” based on methodologies outlined in previous cases decided by courts. A Robson Forensic architect submitted two affidavits to the Court based on extensive research regarding both the overall appearance of the designs and the individual elements of each design.
The forensic architect determined that the overall arrangement and look of the two houses was typical for a house of that size, and supplemented one of the affidavits with various juried citations and photographs from two stock house plan publications obtained at a local home improvement store. The forensic architect also used a subtractive process to exclude from consideration that which was not original, and that which was primarily functional. Few elements of either design were left to compare.
At trial, the validity of the earlier designer’s copyright was challenged given the time that had elapsed since first publication of her design. Also at trial, defendant admitted that he had traced the previous designer’s drawing, although in what context that tracing occurred, and the extent of the tracing, was not explained to the jury. Opportunity to copy is an important aspect of most copyright infringement cases. The finding of the jury was for the plaintiff, but the award was a small percentage of the total exposure of the defendant. The plaintiff appealed the verdict unsuccessfully.
What elements of an architectural design are copyright protected?
While limited copyright protection exists without registration with the U.S. Copyright Office, only original elements of a building or design are protected by copyright. Architectural works and technical drawings are evaluated for copyright infringement under separate sections of Article 17 of the US Code, but both sections exclude functional elements of a building or a design from copyright protection. Protection is further limited to buildings or designs created after December 1, 1990, where “created” is defined by the U.S. Copyright Office as “the first-ever tangible fixation or embodiment” of a design or a building. Copyrights can, however be sold by creators to subsequent parties.
ARCHITECTURAL COPYRIGHT INVESTIGATIONS
Copyright infringement cases have involved such prominent buildings as the United Arab Emirates Embassy in Washington, D.C., the new World Trade Center in New York City, and a 43-story high-rise condominium project in Sunny Isles, Florida where federal district court judge James King expanded the traditional method of determination of “substantially similar.” More commonly, cases involve commercial developments and custom single family residential structures. Regardless of the building occupancy type, the AWCPA applies the same level of copyright protection to the creators of architectural works in a variety of forms. Forensic architects can be useful in making determinations regarding copyright protections involving architectural works, technical drawings, and other forms of architectural expression.
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Architecture, Construction, & Premises Safety Expert
Lee Martin is a licensed architect with over 30 years of private and public-sector experience as a design/build project manager, capital improvement program director, building official, and forensic expert. Lee applies his expertise to forensic investigations involving architecture, construction, professional liability, premises safety, and code-related matters. He has worked on buildings of various kinds, including high-rise office, residential and mixed-use projects, as well as aviation, health care and detention facilities. Lee is licensed as an architect in many states. He is a former International Code Council Certified Building Official, and a USGBC LEED Accredited Professional.