Emily Feeley, Contributing Member 2020-2021
Intellectual Property and Computer Law Journal
It should come as no surprise that architectural structures can receive copyright protection, but that has not always been the case. Prior to 1990, there were relatively few protections for architectural works.[1] It was only with the passing of the Architectural Works Copyright Protection Act (“AWCPA”) that copyright protection extended to protect architectural structures.[2] Presently, architectural works are one of the eight categories of works that are subject to copyright protection under 17 U.S.C.A. § 102(a).[3] Are these protections enough, or is there a need to expand their protection? This blog will look at what types of architectural works are subject to copyright protection, how architectural copyrights are registered, and the feasibility of enforcing the copyright.
What Types of Architectural Works Can Be Protected?
17 U.S.C.A. § 101 defines “architectural work” as “the design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings.”[4] The work itself includes the arrangement and composition of spaces and elements in the design but does not include individual standard features.[5] It is the entirety of the architectural work that is protected, such that the overall form of the building receives protection.[6]
Copyright does not protect individual standard features, standard configurations, purely functional features of an architectural work, or interior design.[7] An individual standard feature is something that is considered to be a staple in architecture, such as windows, doors, or other basic building components.[8] Purely functional features, such as columns or doors, of an architectural work are not protected.[9] Purely functional features are excluded so that innovations in architectural engineering, or in construction techniques, cannot be copyrighted and kept from the general public.[10] If the inventors of these innovations or improvements seek to protect their intellectual property they must do so through other means, such as a patent or trade secret.
The standard configuration of spaces is not a protectable element of an architectural design.[11] Neither Congress nor the Copyright Office has set forth exactly what configuration of spaces is protectable, other than excluding “a square bathroom or one-room cabin.”[12] The question of whether the configuration of spaces is original or standard is the most litigated aspect of the AWCPA.
The scope of copyright protection for architectural works is limited by the merger doctrine.[13] The merger doctrine holds that certain ideas can only be expressed in a very limited number of ways.[14] The notion that certain ideas can only be expressed in a limited number of ways also takes into consideration limitations related to market forces, building codes, and functional demands.[15] However, when one considers the merger doctrine alongside Congress’s inclusion of the phrase “arrangement and composition of spaces and elements,” it is clear that only the overall design, or “the gestalt of the plans,” is protectable.[16] Whether the individual components that make up the overall design are protected is irrelevant when determining whether the design is original.[17]
Eligibility to Register As A Copyright
For the Copyright Office to be able to accept the registration application for a copyright in an architectural work, the work must be a humanly habitable structure that is intended to be permanent and stationary.[18] The Copyright Office lists office buildings, churches, museums, and houses as types of buildings that meet this requirement.[19] In addition to being original, the designs must either be created on or after December 1, 1990, or have been embodied in unpublished plans or drawings on or before December 1, 1990.[20] Architectural works that do not satisfy this temporal requirement are not eligible to receive copyright protection.[21]
Architectural works can be registered with the Copyright Office as architectural works under § 102(a)(8), and as pictorial, graphic, or sculptural works under § 102(a)(5).[22] There is no requirement that architectural works be registered with the Copyright Office but, without proper registration, there can be no standing for a claim of infringement brought by the owner of the copyright.[23] The owner of the copyright will be the person who created the design of the building.[24] However, for commissioned designs, the owner of the copyright is the employer or firm for whom the designer works.[25] The owner or the commissioner of the architectural work does not own the copyright unless they have been given an assignment of intellectual property.[26]
Congress suggested a two-step analysis to determine the copyrightability of an architectural work: (1) the architectural work must be examined to determine whether original design elements are present, and (2) if the design elements are present, the original elements must be examined to determine whether they are functionally required.[27] If the elements are functionally necessary, the work is not protectable, but if the original elements are not required, the work will be protectable without regard to the physical or conceptual separability of the elements.[28] As a result, “the aesthetically pleasing overall shape of an architectural work [can] be protected.”[29]
Proving Infringement
Architecture is a field that requires advanced skills in both engineering and design; a unique combination of the arts and science. It comes as no surprise, then, that the creators of such designs seek to protect them; and there is no better way to do so than through a valid copyright.
To prove a prima facie case of infringement under AWCPA, a plaintiff is required to establish four elements: (1) ownership of a valid copyright, (2) in an architectural work, and (3) copying (4) of constituent elements of the work that are original.[30] Copying can be demonstrated in three ways: (1) direct or (2) indirect evidence of the defendant’s access to the work, and (3) substantial similarity.[31] If a prima facie case of infringement is established, then damages, injunctive relief, impounding and disposition of infringing articles, and attorney’s fees can all be awarded.[32]
Despite the relatively few requirements necessary to prove prima facie infringement, relatively few architectural copyright claims have been successfully litigated. A few notable cases are Intervest Construction, Inc. v. Canterbury Estate Homes, Inc. and Zalewski v. Cicero Builder Dev., Inc. These cases are discussed in further detail below.
Intervest Construction, Inc. v. Canterbury Estate Homes, Inc
How similar can two homes be before there is a copyright violation? This is the very question the Eleventh Circuit Court of Appeals was asked in 2008 in Intervest Const., Inc. v. Canterbury Est. Homes, Inc.[33] The two floor plans at issue did share some obvious similarities, similarities that are common in four-bedroom homes such as: a master bedroom, master bathroom, second bathroom, two-car garage, family room, and living room.[34] In addition, the square footage of the two homes was the same.[35] The district court focused on the similarities of the two floor plans in a careful analysis, and found that there were differences in the shape of the rooms, the locations of entrances, and even noted that the design of one of the homes included glass French doors, while the other only had a sliding glass door.[36]These differences, whilesmall, led the district court to hold that “no reasonable observer could conclude that the copyrightable elements of the two floor-plans were substantially similar.”[37]
When architectural plans are protected by compilation copyrights, the court must determine whether the differences in the protectable expression are so significant that, “as a matter of law, no reasonable properly-instructed jury of lay observers could find the works substantially similar.”[38] The Eleventh Circuit viewed the architectural plans here as being a compilation, similar to how the Supreme Court of the United States viewed the white pages in the famous Feist Publications case as a compilation.[39] Therefore, when it was comparing the two architectural plans, the Eleventh Circuit looked to the selections that would be entitled to copyright protection, and in particular focused on the “similarity comparison of the works at … at the level of protected expression —that is, the arrangement and coordination of those common elements.”[40]
The “substantial similarity” test is when only the arrangement, coordination of spaces, elements, and other business staples are compared when determining whether two architectural plans are so similar for one to have infringed on the other’s copyright.[42] The Eleventh Circuit favors the substantial similarity test but recognizes that it has not always been used with precision.[43] Often the jury, as laypersons, does not have a keen enough eye to perceive whether “90% of one is a copy of the other, but only 15% of the work is protectable expression that has not been copied.”[44]
Ultimately, the Eleventh Circuit affirmed the district court, holding that “no reasonable properly-instructed jury of lay observers could find the works substantially similar.”[45] This case concerned two architectural floor plans that construction companies marketed and sold to consumers—homes that are commonly referred to as “cookie-cutter” homes since they all resemble one another.[46] However, the Eleventh Circuit’s use of the substantially similar test has not proven a popular choice and has created a circuit split, as is seen in the next case.
Zalewski v. Cicero Builder Dev., Inc.
The court in Zalewski disagreed with Intervest and interpreted the holding of Invervest to be that an idea will always be either creative, derivative, or compiled.[47] Instead, the Zalewski court held that “Courts should treat architectural copyrights no differently than other copyrights.”[48] Zalewski concerned the similarity of two colonial designs, and whether there was any copyright infringement.[49] Zalewski designed and licensed several colonial home designs to the defendant.[50] At the end of the licensing term, the defendant hired another designer to design and build two homes that were allegedly based on the homes that Zalewski designed and licensed to the defendant.[51]
The court regarded architecture as a form of art, using an example of a log cabin and the Guggenheim, stating that “[s]ome architectural designs, like that of a single-room log cabin, will consist solely of standard features arranged in standard ways; others, like the Guggenheim, will include standard features, but also present something entirely new.”[52]Common and prevalent types of architecture, such as Victorian or colonial homes, are considered to be within the doctrine of “scènes-à-faire.”[53] The doctrine of scènes-à-faire holds that elements of the design that are indispensable or standard in types of architecture, “like cowboys, bank robbers, and shootouts [are] in stories of the American West,” are afforded no protection.[54] In architecture, there are standard features that make the different types of architectural styles easy to identify, such as decorative trim for Victorian homes, and simple minimalist rectangular shapes for colonial style homes.[55] Consequently, for a home to remain within a certain architectural style, it must have all of the necessary features needed to make it identifiable as belonging to that architectural style.
To determine whether there is substantial similarity between two architectural designs, it must be determined whether the similarity was the result of the copying of unprotected or protected elements.[56] Zalewski requires that a plaintiff proves three things to show substantial similarity: “1) that his work is protected by a valid copyright, 2) that the defendant copied his work, and 3) that the copying was wrongful.”[57] It was the third element, that of wrongful copying, that was at issue in Zalewski.[58] The court stressed that copying and wrongful copying are often confused, and that “not all copying is wrongful.”[59] Wrongful copying includes the copying of elements that are protected by copyright.[60]Therefore, any design element that is the result of “building codes, topography, structures that already exist on the construction site, or engineering necessity” is not protectable by copyright.[61] Here, the court held that the defendant only copied unprotected elements of Zalewski’s design and that there was no copyright infringement.[62] The unprotected elements of Zalewski’s design that were copied were his ideas and concepts, not the concrete expression of his ideas.[63]
The Zalewski case is yet another example of the architectural copyright being used to protect and litigate architectural designs for homes that are incredibly similar in appearance; commonly referred to as cookie-cutter homes. These homes, which are often so close to one another in appearance, size, and characteristics, can be found in any city in the United States. Litigation often occurs among cookie-cutter homes due to their popularity and the profit potential that results from their common usage.
Do Cookie-Cutter Homes Deserve to be Protected by Copyright?
The two above cases are examples of the multitudinous litigation that resolves around architectural copyright infringement, although there is not much that is distinctive about these homes. Architectural copyright was created to protect the originality of the design, yet the homes and architectural designs that are most often litigated have little originality. Often, it seems that those who seek architectural copyright protections are those who are only after monetary gain, and they are usually just attempting to justify the originality of the home’s arrangement and composition. The architectural copyright is meant to protect the originality and creativity of the architect.[64]
The AWCPA provides little guidance on what amounts of creativity and originality it requires for the design to be protected.[65] This, of course, has its benefits and its disadvantages. One cannot copyright a two-car garage, as ordinary garages are considered to be too much of a “building-block” of architecture. However, could one copyright a single-family home that has three sets of two-care garages? Presumably yes, since the idea would be original. But would it serve any reasonable purpose? Likely not. Homes are designed to be lived in, and a home that does not suit the desired conventions of those who could live in it is largely useless. It is this very principle, that homes must be lived in, that requires similarity. As society has progressed, people have come to expect certain features in their homes, and homes that do not satisfy these requirements are looked down upon and will not sell on the market. How many ways can one design a two-bedroom home? How does one know that there is a design similar to another that is protected by copyright? Congress has not yet provided an answer to these questions and has instead left the interpretation of the AWCPA up to the courts. But is this the right decision?
Cookie-cutter homes do not deserve maximum protection from the AWCPA. The level of protection afforded to these homes should be less than homes that require more originality and creativity, in a manner similar to a “thin” copyright. In comparison to architectural works by great architects like Frank Lloyd Wright and Antti Lovag, these basic homes require little to no creativity. It is ironic that the brilliant designs of Frank Lloyd Wright are not protected by the AWCPA, as his works were created before December 1, 1990, and therefore fall into one of the few exceptions.[66] As such, there is nothing to truly prevent an individual from copying one of his designs; they are simply ineligible for copyright protection due to when they were created. Instead, the only thing that protects these sorts of designs is their popularity. The notoriety of such designs and the fame of their designers would make anyone who copied their designs easily identifiable. However, if one does not care for their reputation, and if there is no copyright to protect the architectural design of these earlier works, then there is nothing that can be done to punish the copier.
Those who copy the designs of others, often called “pirates,” do so with the knowledge that their copying is well known.[68] Presently, it seems that the copying of buildings has become a trend in China.[69] Zaha Hadid, an international architectural mogul, recently had one of her designs copied.[70] The Wangjing SOHO office and retail complex in Beijing is a tremendously tall silver building that has a unique look and has been described as “three curved towers whose ‘shimmering’, metallic skin unifies the complex as each volume appears to ‘dance’ around each other.”[71]The distinctiveness of this building did not stop it from being copied before it was even completed. Pirates had begun constructing an exact copy of the Wangjing SOHO office building at the same time the original was still under construction in Chongqing.[72] A race against the clock to finish building one’s design is practically unimaginable for most architects here in the United States, but it may be a reality they face if the courts and the legislature do not provide more guidance. On the other hand, lack of protection for common ideas is intended to encourage architects to come up with new designs and be innovative.[74] It is a difficult balance to strike, protecting current architectural works while also encouraging architects to come up with new designs and styles
What Should Be Done?
As controversial as it may seem, it would be for the best if either the legislature or the judiciary set forth more solid standards for what type of architectural designs will and will not be protected. There are ways in which this can be done. For instance, not protecting homes that are three bedrooms or smaller, since there are a limited number of ways in which the rooms and their necessary features can be arranged. Also, not allowing designs that follow incredibly common floor plans to be copyrighted.
Of course, this is not to say that architectural designs should not be provided copyright protection. The issue is that providing too much protection to uncreative and unoriginal ideas, such as commercial or cookie-cutter homes, may lessen the importance of the copyrights that are awarded to architectural designs. Not every home or architectural design is protected by copyright, and that is okay. What is most important is ensuring that the copyrights provided to architectural designs are given to those that truly deserve it. If necessary, perhaps the requirements to get a copyright on an architectural design should become more difficult and should place the burden on the applicant to provide reasons why their design is unique, listing distinguishable differences from other architectural designs.
Conclusion
The AWCPA protects architectural designs and works and was expanded as recently as 1990.[75] However, the most litigated copyright infringements often concern homes that most individuals would consider to be “cookie-cutter” and unoriginal. Either the legislature or the judiciary should step in and set forth either (1) more rigorous requirements that the applicant must satisfy to get a copyright or (2) directly limit certain types of homes that are ineligible to be copyrighted.
[1] Stuart E. Jones, Copyright Protection of Architectural Works: My House Is My Castle, but Can I Protect It from Infringement?, 8 Intell. Prop. L. Bull. 1, 4 (2003).
[2] Id.
[3] 17 U.S.C.A. § 102.
[4] 17 U.S.C.A. § 101.
[5] Id.
[6] Id.
[7] U.S. Copyright Office, Copyright Registration of Architectural Works, Circular 41, 1, (2019), available athttps://www.copyright.gov/circs/circ41.pdf.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Zalewski v. T.P. Builders, Inc., 875 F. Supp. 2d 135, 145 (N.D.N.Y. 2012), aff’d sub nom. Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (2d Cir. 2014).
[14] Id.
[15] Id.
[16] Axelrod & Cherveny Architects, P.C. v. Winmar Homes, No. 2:05 711 ENV ETB, 2007 WL 708798, at *11 (E.D.N.Y. Mar. 6, 2007).
[17] Id.
[18] U.S. Copyright Office, Copyright Registration of Architectural Works, Circular 41, 2, (2019), available athttps://www.copyright.gov/circs/circ41.pdf.
[19] Id. Note: a houseboat that is intended to be permanently affixed to a dock may be registered as an architectural work.
[20] Id. Note: specifically, the designs are also protected if they were embodied in unpublished plans or drawings on December 1, 1990, and the design was constructed on or before December 31, 2002.
[21] Id.
[22] Id.
[23] Steve Schlackman, Copyright for Architectural Designs, ARTREPRENEUR:ART L.J. (January 21, 2021), available athttps://alj.artrepreneur.com/copyright-architectural-designs/.
[24] Id.
[25] U.S. Copyright Office, supra.
[26] Id.
[27] 17 U.S.C.A. § 102(a)(5).
[28] Id.
[29] H.R. Rep. No. 101-735, 6935, 6951 (1990).
[30] Shine v. Childs, 382 F. Supp. 2d 602, 607 (S.D.N.Y. 2005) citing Williams v. Crichton, 84 F.3d 581, 587 (2d Cir. 1996) and Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
[31] 82 Causes of Action 2d 679 Section 2 (Originally published in 2018).
[32] Id.
[33] 554 F.3d 914, 916 (11th Cir. 2008).
[34] Id. at 916.
[35] Id.
[36] Id. at 916-919.
[37] Id. at 918.
[38] Id. at 921.
[39] See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). “There is an undeniable tension between these two propositions. Many compilations consist of nothing but raw data—i.e., wholly factual information not accompanied by any original written expression. On what basis may one claim a copyright in such a work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. Yet copyright law seems to contemplate that compilations that consist exclusively of facts are potentially within its scope.”
[40] Intervest Const., Inc. v. Canterbury Est. Homes Inc., 554 F.3d 914, 916 (11th Cir. 2008).
[41] Id. at 922.
[42] Id. at 920.
[43] Id.
[44] Id.
[45] Id. at 921.
[46] Id. at 916.
[47] 754 F.3d 95, 104 (2d Cir. 2014).
[48] Id.
[49] Id. at 98.
[50] Id.
[51] Id.
[52] Id. at 103–04.
[53] Id. at 102; See Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.1980).
[55] Alexandra Bandon, American House Styles, THIS OLD HOUSE (last visited Apr. 2, 2021), available athttps://www.thisoldhouse.com/21018307/american-house-styles.
[57] Id. at 100; See also Laureyssens v. Idea Grp., Inc., 964 F.2d 131, 139-41 (2d Cir. 1992), as amended (June 24, 1992).
[58] Id.
[59] Id. at 100.
[60] Id. at 100-102.
[61] Id. at 105.
[62] Id. at 101.
[63] Id. at 105.
[64] 82 Causes of Action 2d 679 (Originally published in 2018); See Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg., LLC, 977 F. Supp. 2d 567, 572 (E.D. Va. 2013).
[65] Jones, supra.
[66] 82 Causes of Action 2d 679 §2 (Originally published in 2018).
[67] Photographs of The Boulter House in History and Photos, WRIGHTBOULTER.COM, available at https://www.wrightboulter.com/home/history-and-photos/.
[68] Karissa Rosenfield, Zaha Hadid Seeing Double in China, ARCHDAILY, https://www.archdaily.com/313492/zaha-hadid-seeing-double-in-china.
[69] Id.
[70] Id.
[71] Id.
[72] Photograph of the Wangjing SOHO office and retail complex in Zaha Hadid Seeing Double in China, ARCHDAILY, available athttps://www.archdaily.com/313492/zaha-hadid-seeing-double-in-china.
[73] Id.
[74] Jones, supra.
[75] Id. at 4.
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